Residents sue selectmen and Town over “constitutional rights” and “abusive comments” (Updated)

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.

Newest Most Voted
Inline Feedbacks
View all comments
3 years ago

Hey Louise, check your feelings at the door.

Great timing too. During a pandemic and a time the town is seeing a budget crunch, she decides to waste tax payers money for a lawsuit because she got her feelings hurt.

Longtime Observer
3 years ago


This is absurd. Not surprising, but absurd.

Just more legal bills for the town… which will result in crocodile tears from Mick Mansion Lane when taxes go up for some reason. The Taj Mahal will probably be invoked… again.

To recap: A resident calls a selectman Hitler. Selectman gets upset and uses the word “disgusting” (allegedly). Selectman issues an apology. Resident sues the entire current Board of Selectman (two of whom were not even Selectman at the time of the incident), claims she was the victim of an “abusive verbal assault” and suffers from “ongoing humiliation.”

Lawsuit is filed when the town is most vulnerable financially… in the middle of a pandemic. Just. wow. I guess the Barrons and St. Andre are insulated from the effects of economic hardship; the timing is either incredibly tone deaf or malicious.

Louise Barron should be humiliated. She was completely out of line then. Calling Kolenda (of whom I am no fan, for the record) Hitler is inflammatory. Talk about the pot calling the kettle black.

Barron, Barron, Davis, and St. Andre all should be ashamed of themselves now. It’s too bad they are dragging the rest of us down with their petty and costly actions.

Concerned Voter
3 years ago

Beth, thank you for this good summary. There are important take-away points and remedies here for the voting public to understand:

* This is not so much a matter of a “heated dispute.” It started out simply as town citizen expressing grass roots protest to the then proposed ludicrous 9-10% tax increase. If you look at the tape link above in the article that is the reason the resident, Mrs. Barron, got up to the podium. The resident was protesting the huge tax increase, and also commented on Open Meeting Law Violations, including breaking of state law under Mr. Kolenda — all public information. See the Worcester Telegram & Gazette article:
as well as the Attorney General’s website for violations under Mr. Kolenda and others.

• On the Open Meeting Law violations, there is no such thing as “ministerial record keeping” as ridiculously spun by town counsel. It is nonsensical horse manure with no basis in the law. State Law states that the minutes are approved within 30 days or 3 meetings. Period. No excuses, no exceptions. The town was in fact found guilty by the AGO of “egregious” violations, including violation of state law under Mr. Kolenda’s chairmanship. He simply doesn’t want to hear it and he opted to flip the narrative by screaming at the resident and draw attention away from the violations.

* Mr. Kolenda violated the BOS’s own conduct policy. If applicable (and this question should be answered by BOS), the taxpayers absolutely should not be paying for his defense, and should object to paying for his defense. The BOS has not paid for others and should not start now with defending this shabby and inexcusable violation of policy.

• The minimalization of OML violations is straight up wrong. Town counsel was admonished by the AGO in their response letter. He should be fired for minimalizing an issue as called out by the AGO and defending wrong actions as detailed in the response letter. This is not a situation of correcting “ministerial” errors as pointed out by the AGO. Nor is expressing concern about the serial violations of state law constitute “sensationalism.” This town must follow standard procedure that all towns must follow. Timely approval of minutes is mandated by state law.

• State law was broken under Mr. Kolenda’s chairmanship. Period. It is a matter of public record. This is not “sensationalism.” It is a fact, as determined by the Attorney General’s Office. Any one confused by the truth should visit the AGO’s decision website.

• Any citizen’s concern or expressing that concern at a podium is a First Amendment Right. Period. It is not slander. Therefore, false accusations by Mr. Kolenda of “slander” are just that: False. The town has this resident to thank for having the courage to protest that ridiculous 9-10% proposed tax increase — that ultimately later was scaled down to 2-3%. This is probably the most important takeaway of this entire matter.

• Board of Selectmen members purport to be experienced and know how to run a board. That said, it does not take years and years to read, understand, and correctly apply State Law, Open Meeting Law. Mr. Kolenda is a lawyer who can read state law and presumably follow Open Meeting Law. No excuses, no exceptions.

• What are we paying Town Counsel for? 68 + violations? Each one of those listed (if that is the correct number, it may be more), each one, if not timely approved, is a violation of State Law. The real remedy? Bid out the town counsel service contract right now and see what the professional options are. The other remedy: the voting booth.

• Mr. Kolenda’s call for “civility” and “increased listening” is an ironic contradiction in terms based on his conduct on December 4, 2018. He wanted the resident removed for raising concerns that he did not want discussed. He did not want to listen to the fact that the Board broke State law under his Chairmanship (and as revealed via the BOS’s list of dates, also Messrs. Shea, and Rooney).

• He states,” When we talk at or over each other, or resort to name calling and attempts at character assassination, we fail to hear each other.” Where is the “character assassination” in expressing concern over violations of State law? And now it is up to 68 plus times? 68 plus errors? Get real.

• Mr. Kolenda is not the victim. No one engaged in name calling until he provoked the situation by using the “slander” card. Shutting down public comment is not “listening.”

* Public comment should be increased and embraced, including opposing opinions, with respect shown by the BOS to the public. Proper representation by BOS members means listening carefully to each resident who cares enough to take the time to read up, stay current, attend a meeting, and brave the podium.

Respect does not mean rudely talking over residents or dismissively “thanking” them away from the podium or worse. Obviously good leadership does not include intimidating or threatening the public in an attempt to chill comment as we see with Mr. Kolenda. On the whole, comments have been well meaning and respectful. I have never, not once, heard any comments expressed that did not have some legitimate basis of business concern. I have, however, seen public officials abuse their authority by shutting down commentary a number of times. Meaningful dialogue means two-way street, not one way. “Listening” means more public comment, not less.

In the centuries old tradition of the Boston Tea Party, a resident braved the podium with a homemade sign protesting excessive taxes and called out violations of state law, Open Meeting Law. That’s the real bottom line. Shutting her off and threatening to remove her for protesting taxes (and other OML violations) is in fact a violation of a basic democratic rights and freedom of speech of all residents. Taxes were reduced and we all owe thanks to that citizen.

Thanks Beth.

Concerned Voter
3 years ago
Reply to  Beth Melo

Beth, thanks for your read above, but a little off on interpretation. To clarify, not saying it wasn’t a heated exchange, but in this viewers opinion, more about WHY the resident bothered to go to the meeting and speak in the first instance. The reason was to provide opinions and public feedback on huge proposed tax increases and breaking state law on OML. In fairness to the resident, Mr. Kolenda threw the first punch. He falsely made the accusation of “slander” when the resident was simply stating true facts about information on publicly posted multiple Open Meeting Law violations, a matter that Mr. Kolenda, an attorney, clearly did not want public attention or discussion on. On the second point, I disagree. This resident was the first citizen to openly object to the ridiculous proposed increases, and was perfectly appropriate to do so during public comment. You may not correlate the opposition to the ludicrous increase to the end result, but this opinion does, because BOS knew the opposition was a harbinger of taxpayer opinions to come. We both can agree there would be hell to pay if they didn’t get that oversized budget down. It was highly unpopular and stupid as a proposal, as evidenced by the decrease. Regardless, it came down. This resident may have used the wrong word in response to Mr. Kolenda’s wildly unprofessional behavior, but there is no question that first amendment rights were violated first. The point is not the name calling, which came later. Mr. Kolenda would like to make that the distraction point. In my opinion, the real point is the first amendment rights that all taxpayers have to get up to a podium and express legitimate concerns over taxes and breaking state law as confirmed by the Attorney General. They broke the law. They don’t want the public to know. They do everything they can to avoid public awareness and “minimize” misconducts. As one blogger previously observed, in a different setting, Mr. Kolenda would be taken away by the police due to his own scarily aggressive and threatening behavior.
Thanks again.

can't hear...
3 years ago
Reply to  Beth Melo

Part of the issue originates with the wording of the Public Participation policy statement:

“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”

Several of the adjectives are completely subjective and open to interpretation. An individual might feel as though certain comments were disrespectful and/or discourteous simply because they did not like what they were hearing. Inappropriate language (profanity perhaps, though not stated) and shouting are self-explanatory.

Kolenda did not request Barron’s silence, instead cutting her off. This would seem to violate the Public Participation policy’s statement:

“all persons shall, at the request of the Chair, be silent”.

Having been so abruptly cut off is what probably triggered Barron’s reference to dictatorial behavior and to a famous Nazi personality.

And, to what effect Barron’s statements about the proposed tax increase and eventual outcome cannot truly be measured. To either over or understate the effect of her comments would be conjecture. At a minimum, she helped to raise awareness of the issue.

It is most strange that two of the current BOS members – not even on the BOS at the time of the incident, would be named in the suit. How can that be allowed?

can't hear...
3 years ago

In the video, one may observe Bonnie Phaneuf saying something and it is difficult to see if Dan Kolenda responded. If a motion were made and seconded, wouldn’t a vote then follow? The video does not seem to show any vote.

Curiously, the video ends at 2:36:36 out of a total of 2:38:23, showing only the US flag and the time stops ticking. One may wonder where the missing (approximately) 2 minutes are? The entire video is 2 hours, 38 minutes and 23 seconds, of which we can only view 2 hours 36 minutes and 36 seconds. (I thought Rose Mary Woods had passed away).

Most puzzling.

As for “slander” it seems to be defined as: “someone tells one or more persons an untruth about another, which untruth will harm the reputation of the person defamed.”. It seems questionable whether the comments made were actually slanderous. They sounded like opinion to this listener.

Unfortunately, things seem to have escalated from that point.

I certainly hope the Town has some form of insurance to cover situations of this type!

Frank Crowell
3 years ago

Really like the “Rose Mary Wood” reference. The sad truth is that no one under 55 (older?) will understand the reference unless they are good students of US history. Along the same lines, I’ve been hoping for a Southborough “Deep Throat.” If that person existed, in the education system, maybe an embarrassing embezzlement would have been avoided. Having one today would pay huge dividends.

3 years ago

If nothing else this should serve as a wake up call for the town. Too much historical shadiness by the BOS. And as a result we are paying the town counsel to defend, attack, warp facts, and do whatever seems necessary to guarantee his employment for years to come.
BOS please get your ducks in a row and citizens show up and keep the BOS in line, Learn the rules of of town meeting, know your rights, and do not be intimidated by a condescending moderator.

(Anyone keeping tabs on how much this is costing us in legal fees? What’s the state average, I bet we are in the top 1%.)

I remember my first time speaking at town meeting where I was greeted by the moderator with, “Do you have anything constructive to say?’ The condescending tone was thick and I remember feeling immediately deflated in front of the town, challenged not to stutter or jumble my thoughts. Public speaking has never been my strength. At least I wasn’t threatened with removal, no matter what anyone says it takes guts and a little crazy to be that committed to the truth.

3 years ago
Reply to  Matthew

This is sad to hear. In my short duration as a resident I have seen many positive examples of civic engagement. I have also witnessed some pretty troubling behavior (from both residents and volunteers). The threshold for those who are elected unfortunately has to be higher. Inevitably there will be vocal residents who may push the boundaries of civility. In addition there will be well-meaning residents who may not understand the nuance and protocols associated with town management. I hope that those who wish to serve will promote and education rather than condescend and belittle.

Some of the the most important elements I will be looking for in future elections is patience and humility. I do think that in most cases from what I have witnessed the BOS has shown those qualities and appreciate their efforts.

Al Hamilton
3 years ago

It is certainly true that Ms Barron can be incendiary. However, Mr. Kolenda, in spite of his other fine qualities, has a skin is thinner than Trump’s and at time he appears to have trouble avoiding taking the bait. I have witnessed this in other forums. This is not a desirable characteristic in a President or a Selectman.

I think the BOS should do what it takes to make this go away. Our track record in court is not exactly inspiring. It is also time to reconsider how the town is advised on legal matters. Current counsel is inexpensive but some times you get what you pay for.

Tim Martel
3 years ago

This “news” article isn’t worth reading, let alone discussing.

3 years ago

a couple of observations:
1. no one EVER thought a 9-10% preoperty tax increase would fly.
2. dan kolenda is a bit thin skinned YET he has volunteered to sit in a positin often criticized for a number of years because of his commitment to public service.
3. To refer to anyone as hitler is a very strong insult and is bound to be considered even more an insult to anyone who has served in our armed forces.
4. To raise all these issues and demand the expenditure of town resources on this inceident while the whole world is in the midst of the greatest pandemic in 100 years is more than silly.

Ms Barron, you’re always a bit over the top and I’m sure you know it. I don’t believe that this incident humiliated you beyond any abilty to recover your standing in town or your willingness to make
your future opinions know to us all.
Mr. Kolenda, not rrunning for re-election shows some understanding of your difficultiies in being a Selectman in this town and i’d like to say thanks for your years of service.

Now..can we move on to more important issues…like saving as many citizens as we can…

This lawsuit should be dropped, imho.

Concerned Voter
3 years ago

For those who value voter and free speech rights over the bullies trying to suppress public comment and feedback, those citizens have an understanding of the high stakes of all the violations of state law by BOS and others with their own conflicts of interest. If you are confused by the truth, look at the violation letters on the Attorney General’s website.

Have you noticed that “Public Comment” section of meetings have been dropped or strategically placed first (versus later in a meeting so one might actually comment on the meeting itself). Why is this? It is to suppress public feedback, including on misconduct. They don’t want to hear about it. And keeping the public in the dark is the point. That includes the content of suppressed and redacted minutes.

Citizens in all towns have to deal with embezzling dunces, Billy-the-kids, and board stacking Pirates of Penzance, while others will stay ignorant, ignore the misconduct and stick their head in the sand. For example, embezzlement (stealing taxpayer money) happens when there are no policies in place or consequences. This town has had embezzlement, your money stolen. But BOS does not discuss it. And the BOS actively fought and voted against anti corruption policies, active policies of other towns.

The real takeaway is in the buried minutes that were never released to the public. Lazy Minutes that were skipped over and subsequent minutes approved. Mrs. Barron is one of the few residents that is highly read and intelligent enough to participate, not tolerate misconduct. Good for her and others who care enough to bother to call attention to it and clean it up. Mislabeling courage to speak out as “over the top” is wrong and nonsensical. As for the ostriches with their heads in the sand ( or elsewhere), there are always those lacking an even basic understanding of current affairs or worse, supporting those looking to stack the next board with their relative or buddy. The Barrons of the world try to stop that from happening and are held in the highest regard for those legitimate, dignified efforts to have clean government. This reader values that above the ignorance all day long. Again, if you are confused by the truth, read the violation letters, the missing and redacted minutes and brave the podium.

can't hear...
3 years ago
Reply to  Beth Melo

IIRC, the public comment placeholder was moved to the end of the BOS meetings shortly after the meetings went online using Zoom. Prior to that, public comment occurred after the Call to Order of the BOS meetings.

I just checked several agenda PDFs and they support my recollection.

Concerned Voter
3 years ago

Not inaccurate, as the reference is to the BOS minutes (pre-pandemic). Many meetings had no public comment section. Check out the last year or so. Thanks

Jerry C.
3 years ago

I want to thank Mr. Kolenda for his many years of service as a Selectman and on the school committee. Each of these volunteer positions requires many hours of service….without compensation….with the hope that your efforts will better the community. Mr Kolenda is a true public servant, in every respect.

Concerned Voter
3 years ago

FYI, how is this for an ironic footnote to drive the point home: the most recent BOS minutes calling for Executive Session does not reveal to the public, town residents that the BOS is being sued and why. See the town website for the Open Meeting Law violation form. Why are taxpayers learning about these matters from a newspaper or a blog? So while this lawsuit and its allegations are concealed from the public by the town, it ironically is the subject of an Open Meeting Law violation complaint. When will this lesson be learned? Just because a topic might be embarrassing, doesn’t mean it can be hidden from the public with no disclosure on any details whatsoever. PS, sorry to object but not paying for all this crummy legal counsel or lack thereof and definitely not paying for the legal defense for bad behavior, if that is the case. BOS needs to answer that question. This BOS can do better, starting with full disclosures, robust public participation, and full healthy discussions on cleaner better functioning government. Thanks.

  • © 2024 — All rights reserved.