In May, I posted that a lawsuit filed by Southborough residents against selectmen and the Town was moving to the Federal Courts. Based on an amended complaint, the complainants were able to return the case to Worcester Superior Court. In an indirectly related matter, the Attorney General’s Office found that the Town again violated Open Meeting Law.
The original incident that prompted the lawsuit partially related to an Attorney General’s Office 2018 finding that the Board of Selectmen violated Open Meeting Law. Resident Louise Barron accused the board of minimizing the issue and repeatedly breaking the law. The relates to then-Selectman Dan Kolenda’s outburst towards Barron during and following the comments. Additional claims against selectmen and the Town relate to actions by the board following the incident.
This June, the board received a new ruling from the AG’s office that they again violated OML. The AG’s office determined that the Town took five days longer than allowed to respond to the Barron’s Attorney’s request for certain meeting minutes. The finding was an “informal action” with no punishments or directives issued towards the board.
The attorney had asked the AG to determine that the Town was wrongfully holding back unredacted Executive Session minutes. She wasn’t successful on that count.
On December 16th, Attorney Ginny Kremer submitted a request for unredacted meeting minutes from two Recreation Commission meetings. A response by Town Counsel, maintaining that no unredacted minutes would be released, was received on December 31st. The Assistant AG determined that was a violation based on the 10 calendar day requirement.
However, the Assistant AG found she was unable to determine if the confidentiality was justified.*
As for the lawsuit. . .
Selectmen had filed to move the case to the U.S. District Court based on claims that a resident’s First Amendment rights under the U.S. Constitution were violated. The Town’s attorney argued that a federal court was the appropriate venue.
Since then, the complainants asked to be sent back to the county’s court, stating that they were amending the complaint to remove the First Amendment claims. The return to the Worcester court was approved.
You may assume that the amended complaint would reduce the number of Claims lodged. In fact, the recent amendment ups the count from four counts to six.
Three counts new focus solely on Kolenda. The amended list of Counts in the complaint are:
- Violation of Massachusetts Declaration of Rights, Article 19 – against “Kolenda, Shea, Bracccio, individually and as Members of the Board” [sic]
- Negligent Infliction of Emotional Distress – against “Kolenda, Individually”
- Intentional Infliction of Emotional Distress – against “Kolenda, Individually”
- Defamation – against “Kolenda, Individually”
- Violation of the Massachusetts Open Meeting Law – against “Kolenda, Shea, Healy, Bracccio and Stivers, as they constitute the Board” [sic]
- Declaratory Judgment – against “The Board and the Town”
Initially, the first count above also referenced First Amendment Rights and was lodged against “Kolenda, Shea, Healy, Bracccio and Stivers” [sic]. An additional Count has been removed that focused solely on the First Amendment and charged “Kolenda, Shea, Healy, Bracccio, Stivers, and Town of Southborough” of violating Barron’s First Amendment Rights.
The amended complaint still demands a jury trial.
*The AAG’s letter explains:
The complainant challenges the Board’s assertion that the April 25 and May 7, 2019 executive session minutes are protected by the attorney-client privilege and exemption (c) of
M.G.L. c. 4 § 7(26). . . .
Here, the Board is not relying on the Open Meeting Law as a basis for withholding the minutes, but rather has released the minutes subject to redaction pursuant to the attorney-client privilege and a Public Records Law exemption. Because the executive session minutes at issue here are no longer being withheld from the public under the Open Meeting Law, we find no violation of that Law in this respect.
The Open Meeting Law authorizes the Attorney General to investigate a complaint alleging a violation of the law and to request documents in the course of that investigation, but does not give us the authority to determine whether the Board’s assertion of the attorney-client privilege was justified. . . In addition, the Attorney General may not require a public body to disclose “any documentary material which would be privileged.” . . . If the complainant disagrees with the Board’s determination that these redactions are privileged, she may file an Open Meeting Law complaint in Superior Court to challenge the Board’s decision to withhold the minutes, and request that the court review the purportedly privileged documents.