A lawsuit has been filed against Southborough selectmen and the Town over treatment of a resident, handling of meeting minutes, and the “Public Participation” policy.
[Editor’s Note: Comments previously made on this blog are referenced in the complaint.]
Southborough Wicked Local reported on the suit yesterday. It included:
The Board of Selectmen disputes any acts of wrongdoing alleged in plaintiffs’ Complaint and expects to fully prevail in this litigation,” part of a statement from the lawyer representing the town reads.
The heart of the complaint is a heated exchange between resident Louise Barron and Selectman Dan Kolenda at the December 4, 2018 Board of Selectmen meeting. The complaint filed last month names Kolenda and current members of the Board of Selectmen as both individuals and board members, as well as the Town of Southborough.
During public comment at the cited meeting, Barron made statements about the determination that the Board violated Open Meeting Law by not having previously posted past minutes as required. Mr. Kolenda, acting as Chair, referred to her comment as slandering public officials. In an overlapping exchange, she rebutted that it wasn’t slander while he responded he was cutting off public comment. She returned, “Look, you need to stop being a Hitler. You’re a Hitler. I can say what I want” as he stated the board was going into recess.
The suit refers to Kolenda’s response (captured in video without audio), as him having shouted “You’re disgusting!” and threatening to have her removed. [Editor’s Note: You can view Barron’s comments on Southborough Access Meeting video starting here. The exchange with Kolenda begins here.)
A month later, following Barron’s filing of an Open Meeting Complaint related to the meeting, Kolenda made a qualified public apology, including:
I am sorry that I became visibly upset with the resident, but the reference was so incendiary, so inflammatory, that heightened emotion, as it can, resulted.
The new legal complaint was filed in Worcester Superior Court last month by Louise and Jack Barron and neighbor Arthur St. Andre. They characterize Kolenda’s response to Barron as an “abusive verbal assault”. Plaintiffs claim that Barron suffered humiliation and distress, and is “still shaken”. They further that the actions “served to chill” her and other residents from criticizing the board. The complaint names the full Board as complicit since other members “acquiesced” to Kolenda’s actions.
The suit asks for a jury trial and seeks compensatory damages from the Town and Board, punitive damages against Mr. Kolenda personally “for his evil intent”, and/or injuctive relief requiring the board to amend allegedly falsified meeting minutes.
The complaint also calls for a Declaratory Judgement by the Court that the board’s comment policy for public meetings is unconstitutional.
While all five current board members are individually named in the suit, Kolenda was the only one sitting at the table during the December 4th exchange. Two members named in the suit, Marty Healey and Sam Stivers, weren’t elected until six months after the incident occurred. Lisa Braccio (then Chair) was absent from that meeting. Current Chair Brian Shea, who had left the meeting earlier, has stated that he returned just in time to hear part of the discussion.
Shea and Braccio were among the members to unanimously approve the meeting minutes. At the minutes discussion on December 18, 2018, Shea told the board that he heard Kolenda call for a recess and found the same when he reviewed the video. He asked to have the call for recess inserted. The board agreed to replace the draft text indicating public comment was ended. Then-selectwoman Bonnie Phaneuf said that while audio didn’t capture it, she had turned to Kolenda and indicated he should adjourn. She said he motioned to do that and she seconded.
The suit claims that the statements are untrue. Plaintiffs allege no motion, seconding and/or vote occurred to recess or adjourn the meeting. Therefore, they assert that Kolenda’s “abusive rant and threat” should have been included in the minutes. (That argument was rejected by the Attorney General’s office determination of Barron’s 2019 Open Meeting Law complaint on the matter.*)
Deprivation of constitutional rights was a repeated allegation in the suit.
The complaint alleges that on the night of December 4th, Kolenda and the board deprived her of her state and federal rights to “free speech, free assembly, and to petition their representatives for redress of grievances.” Since then, the suit claims that Barron’s “ongoing humiliation” “has caused her to cease participation in all town meetings, and activity she had pursued her entire adult life out of a sense of civic duty.”
Leading up to the description of incidents, the document establishes that Barron had a long history of civic engagement. Several pages detail Barron’s history of publicly criticizing Southborough officials and advocating for causes dating back to 1997.
The complaint also alleges the board’s actions partially relied on an “unconstitutional” comment policy. The Public Participation policy and guidelines adopted by the board in 2017 includes:
All remarks and dialogue in public meetings must be respectful and courteous, free of rude, personal or slanderous remarks. Inappropriate language and/or shouting will not be tolerated. Furthermore, no person may offer comment without permission of the Chair, and all persons shall, at the request of the Chair, be silent
The suit alleges:
The Policy does not allow for criticism of public officials or their decisions if the Chair decides that such criticism is not “respectful” or “courteous” or if the Chair finds such comments “rude” or “personal”.
Southborough Wicked Local shared an excerpt from a statement by attorney John Davis, representing selectmen and the Board.
“The Southborough Board of Selectmen respects the civil rights of all speakers appearing before them – including the freedom of speech,” Davis’ statement reads. “The Southborough Policy and Guidelines on Public Participation at Public Meetings was not adopted to suppress or curtail such rights, but rather to ensure that all Town business is conducted in a professional manner, with decorum and without inappropriate disruption. The Policy and Guidelines are not unconstitutional, nor did the Board of Selectmen violate Ms. Barron’s civil rights by going into recess following her remarks at the December 4, 2018 meeting.”**
Kolenda, whose term of office expires this spring, isn’t running for re-election.
You can read the full 20 page complaint filed under Barron, Louise et al vs. Kolenda, Daniel L. et al here.
*The falsification of minutes allegation was previously made in an Open Meeting Law complaint filed for Barron. In August 2019, the Attorney General’s Office determined that there was no violation. The Assistant AG supported the Town’s position that Kolenda’s comments were made during a recess and also noted that the minutes aren’t required to be a transcript. One aspect of the Barron’s OML complaint seeking proof of her assertion wasn’t directly ruled on in the 2019 determination. A footnote in that letter refers to staffer notes that Barron said she was denied in response to a public records request. The AAG noted that her office wasn’t responsible for overseeing that issue and pointed her to the Supervisor of Records within the Secretary of the Commonwealth’s Office.
**Updated (5/13/20 5:43 pm): I received the full statement from attorney Davis. The excerpt from the Article was followed by:
On August 5, 2019, the Massachusetts Attorney General agreed that the Board did not violate the Open Meeting Law in doing so. The Board of Selectmen disputes any acts of wrongdoing alleged in plaintiffs’ Complaint and expects to fully prevail in this litigation. The Board will have no further public comment on the subject of the litigation while the suit remains pending.