Planning Board: We did not violate Open Meeting Laws, will publish incomplete zoning draft

by Beth Melo on September 10, 2013

Last night’s Planning Board Meeting ended on a passionate deliberation about their response to a recent complaint filed stating that they have withheld a public document.

The complaint was filed 2 weeks ago with the Town Clerk by Advisory Committee member, John Butler. Planning Board member Paul Cimino advised the board that town counsel confirmed his opinion that the document in question was not subject to Open Meeting Law.

The main discussion points: they have not violated the law, their intention has never been to keep information secret, and (though they are not obligated to) they will publish the incomplete document as a sign of good faith that they believe in transparency.

Cimino also objected to several details in the complaint as inaccurate or unsupported.

Chairman Don Morris and Cimino will work together on the official written response to Butler.

Much of the discussion was for the purpose of walking newly appointed board member, Phil Jenks, through the history of the document and complaint. Cimino explained:

  • The draft that came out of the Zoning Advisory Committee was published in 2012 as part of the public hearing process
  • When the Planning Board began the process of voting which revisions suggested by the public to adopt or decline, there was no Town Planner to do the administrative work. Therefore, Cimino volunteered to work on typing up the changes in order to keep the project moving towards the October Special Town Meeting.
  • When they promised the release of the document by July 31st, they thought that they were almost done with it.
  • Subsequently in July, they decided to put a hold on the project to allow input from the future Town Planner.
  • At that point, Cimino ceased working on revising the document, hoping for the Town Planner to take over the task.

Jenks, recommended that the document be published to negate an appearance of non-transparency.

Standing board members defended their past decision to not release the document several ways.

They were convinced that having published an incomplete draft (with some voted changes incorporated and others not input yet) would have created a lot of confusion for the public.

Member Kathy Bartolini also defended the document as an ongoing project of deliberation. She said that as long as it was continually evolving, it would not have made sense to publish at each little revision along the way.

Member Andrew Mills repeatedly referred to the document as being simply “Paul’s notes” of their work. In his opinion, since the board had never voted or deliberated on Cimino’s document, it never reached the level of a public document.

Morris clarified that none of the information in the document was kept secret. All revisions had been openly discussed and voted on.

Morris bridled at implications that the board has tried to “employ subterfuge”. He pointed out that the zoning draft will need a 2/3 vote at a Town Meeting to pass.┬áHe maintained that the board has never withheld public documents. And, he was adamant that the board understands that it works for the residents of Southborough. He defended past decisions as in service to the public (to avoid causing them confusion.)

Cimino wanted to clarify that Butler’s accusations were erroneous and unfair in other ways. He said that it:

  • described the ZAC as a subcommittee to the Planning Board. It was not.
  • referred to “others” who have confirmed the board’s history of non-transparency. The vagueness does not allow the board to substantiate or counter those claims.
  • inaccurately summarized an e-mail communication of Cimino’s. Cimino said he would be happy to make the original e-mails public.

The board voted 4-1 to publish the document with appropriate disclaimers clarifying that it incomplete. Cimino will try to work quickly to turn that around, but it needs to go through a “government computer”, before it is published on the town website.

Morris stated that this is a stand alone decision and does not set a policy precedent for future documents.

1 John Butler September 10, 2013 at 10:55 PM

This report omits that I was unable to attend. I emailed the chair last week to say that I was out of Town and could not attend if the topic was scheduled on this date. I suppose that the resultant discussion, reported upon here, was one sided. There is nothing reported, however, that suggests to me that the original complaint should be changed. A more substantive reply will need to await receipt of their written response.

2 Mark Ford September 11, 2013 at 8:52 AM

In this case, I’m not sure what the fuss is about, particularly. If it’s a working document, and the final document is to be published with sufficient time for scrutiny and comment (and subject to a 2/3 vote at Town Meeting!), I’m ok with that. Of course publishing more frequently is better than publishing less frequently, but come on–is anyone suggesting iniquitous behavior by the committee (of volunteers…)?

3 John Butler September 11, 2013 at 12:06 PM

Mark, I do not suggest that anything iniquitous has occurred but we have seen, in the Police Chief case, how painful can be the effects from anything that undermines confidence in our public processes. If we pass a law in which the process has supported allegations of preference shown to the development community, then we open ourselves to later problems. The Planning Board has become lax and, in my view erroneous, in their observance of the laws. Bear in mind that just a few weeks ago they pleaded guilty, as it were, to violating the open meeting law by failing to legally create a subcommittee to search for a new Town Planner and a complete failure to post subcommittee meetings. Had the press, Mark Purple, and others not intervened and stopped it, the Planning Board would have blithely appointed a Town Planner at the conclusion of an entirely illegal process. A committee that is so careless as to violate the law so flagrantly must, I believe, be subject to ongoing public scrutiny, and is in a poor position to sound the notes of affronted dignity that are suggested in this story. In the case that I have brought that is the topic of this story, it would be best if I refrain from further comment on the details until I receive a written reply.

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