Legal Update: Mass Supreme Court reviewing constitutionality of Select Board comment policy; no more Park Central appeals

I have updates on two lawsuits that had been filed against the Town: 20 Residents vs. Southborough’s ZBA & Park Central and 3 residents vs. the Select Board.

When I last wrote about the the Town and developer losing the Park Central case, the appeal period was still open. Since then, the window closed without action by the developer. And some previously redacted minutes have been posted. Scroll down for those details.

First, I have a big update on the other case.

Barron et al v Kolenda et al

Last spring, I covered that three residents lost a civil case against the Select Board. The residents subsequently filed an appeal. This week, the case was selected for review by the Mass Supreme Judicial Court.

The initial suit was filed in 2020 against former Selectman Dan Kolenda and the Board. The action stemmed from Kolenda’s treatment of Louise Barron at a December 2018 meeting. Angered by statements she was making about the board he cut off her public comment.

The lawsuit included claims about abusive comments and improper handling of minutes. But the main argument that appears to have caught the SJC’s special attention was that the board’s public comment policy is unconstitutional.

Kolenda had used the policy to justify cutting off Barron’s angry comments to the board. The policy includes:

All remarks and dialogue in public meetings must be respectful and courteous, free of rude, personal or slanderous remarks.

The suit included a request for a Declaratory Judgement by the Court that the board’s comment policy for public meetings is unconstitutional.

Superior Court Judge Shannon Frison found against the plaintiffs in the case. She did make a declaration about the comment policy, but fell short of the plaintiff’s request.

Frison declared:

The Board may not prohibit speech under paragraph 3 of the Board’s “Public Participation at Public Meetings” policy based solely on the viewpoint or message of a speaker or the Board’s desire to avoid criticism.

However, she found the board’s prohibition against “rude, personal, or slanderous remarks” was constitutional as long as it is used to:

maintain order and decorum or to prevent disruptions of the Board’s meeting.

Barron’s attorney, Ginny Kremer, appealed on two grounds. The first related to the “inferences” made by the court about Barron’s and Kolenda’s interaction that were allegedly contradicted by the facts.

The judge’s findings referred to Kolenda stopping Barron’s comments in reaction to her calling him “a Hitler”. Kremer pointed out that ignored the established fact that Barron was responding to Kolenda’s threat to cut off her comment if she continued to “slander town officials”, when she was talking about the Open Meeting Violations the Town had been found guilty of.

The second grounds were that the judge erred in finding the public comment section of Select Board’s meetings weren’t considered a “public forum”.

Click the following links for the appeal brief, the Town’s response, and Kremer’s response to that.

On Friday, the SJC had the case transferred to them (as case number SJC-13284). On May 16th the docket announced that Justices were soliciting amicus briefs:

In a case involving a facial challenge to the constitutionality of a policy adopted by Southborough board of selectmen entitled “Public Participation at Public Meetings,” which provides, inter alia, that “[a]ll remarks must be respectful and courteous, free of rude, personal or slanderous remarks,” whether the public comment segment of the board’s meeting is a traditional, designated or limited public forum; whether the board’s “Public Participation at Public Meetings” policy is a constitutional, permissible prohibition on speech.

Amicus briefs are also referred to as “friend of the court” briefs. My understanding is it is a way for the court to receive outside legal arguments that may influence their thinking on an issue from parties not directly involved in the case but who may care about the issues and precedent a case may set. (Often filings are made by advocacy organizations.)

Park Central – no appeal

The last I covered the overturning of the ZBA’s approval of permits for Park Central, the Town had chosen not to appeal the case. At that time, the developer still had a window to file intent to appeal. That passed weeks ago and nothing was filed.

Two weeks ago, the Town posted unredacted minutes from three related Conservation Commission meetings in Executive Session. The minutes themselves don’t seem to include any big secrets. They were just legal updates between the Commission and Town Counsel on the developer’s lawsuits filed against them. (You can read more about that here.)

Ben Smith, Conservation’s Vice Chair, had recommended revisiting the minutes. He noted that residents ask members about the case. They had been prevented from speaking about matters that were still covered by the Executive Sessions. Releasing the minutes would free them up to talk openly.

Conservation Agent Melissa Danza followed up with Town Counsel to confirm that they no longer had the need to keep them under wraps. At their April 28th meeting, the Commission voted to release them.

Here are the minute links: 10/11/2018, 9/12/2019, and 12/3/2020.

No related Executive Session minutes have been posted by the Zoning Board of Appeals yet. The ZBA is meeting tonight for the first time since the court ordered the board’s permit be vacated. The agenda doesn’t mention Park Central but includes the following item:

Discussion of possibility of executive session with Town Counsel, Jay Talerman

In fall of 2018, the ZBA was scheduled to meet twice in Executive Session to discuss an unspecified legal case – on 11/19/16 and 12/14/16. The minutes for the first meeting have not yet been posted, but a memo notes that they are approved. The second meeting was scheduled for prior to an open session. The minutes for the open meeting don’t clarify whether or not an earlier Executive Session was actually held.

Select Board’s related minutes had previously been issued: 12/6/2016*, 2/21/2017, 6/22/2017, 7/19/2017, and 7/13/2021.

*Worth noting, the minutes from December 2016 referred to pending dismissal of a land case involving “Ms. Braccio”. For those wondering, yes the plaintiff was current Select Board member Lisa Braccio. That case was resolved prior to her joining the Board in May 2017.

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2 years ago

Thanks for keeping tabs on Park Central, Beth. Quite a journey. What does the future hold? Is Park Central dead forever? Is the threat to Flagg Rd. now past? Should the town or the Southborough Open Land Foundation acquire the property? Should the property be turned into a park? Or athletic fields? Or hiking trails? So many questions! Thank you.

2 years ago

What do each of these legal cases have in common? Both cases never belonged in court. Both cases are the result of bad legal counsel and taking terrible positions that turn out to be against the law and actually work AGAINST the best interests of the town and town’s residents. Also Beth, sorry but you are wrong about your comments about the Con Comm Executive Minutes as being no big deal or not holding any big secrets. To the contrary, a careful read of those minutes reveals that the then town counsel was attempting UNSUCCESSFULLY to steer the Committee toward biased and wrong legal actions and a cliff that they, thank God, had the good common sense to refuse.

This town has never had good legal counsel. Current town counsel continues the terrible trend and practice of taking positions that defy common sense and the law (which is an issue itself). Town counsel’s screwball positions are NOT aligned with the truth, truthful outcomes, nor the best interests of the town and taxpayers of Southborough. This firm needs to be FIRED and replaced with a multi-service firm that provides solid, common sense legal advice. Also, the town needs an updated Attorney Policy immediately, one that does not allow town counsel to SNEAK around you and actual votes from town meeting floor. This actually happened with this town counsel (acting as “special” counsel) trying to “doom” Article 1, when it went to the Attorney General’s Office for approval from an overwhelmingly positive vote from town meeting in 2018. Article 1 was an anti-corruption Citizen Warrant Petition to reinforce the ZBA quorum as four persons as it had always been, making it harder to stack a board. It was upheld by the AGO and is current bylaw in town in spite of the last town counsel and now town counsel’s attempt to get rid of it. Simply unbelievable that we are PAYING for this.

Take a look at the Attorney General’s website. Southborough’s BOS has scores of Open Meeting Law violations. Why? Because they have been playing games with the minutes and your right to know for a very long time. Take a look at the content of late minutes. The most recent violation was in April, just a few weeks ago, after many admonishments by the AGO.

This leads to the current case involving Mrs. Barron, a grandmother and taxpayer who had the audacity to approach the podium during Public Comment with a homemade STOP sign that protested the then roughly 9% tax increase (subsequently reduced thanks in part to her protests) and the BOS violations of STATE LAW, Open Meeting Law. Jumping off the handle, Mr. Kolenda incredibly and incorrectly refers to the protesting remarks as “slander.” The purpose of that accusation is twofold: To shut Mrs. Barron up and her protests down AND to invoke police power to haul this grandmother out of the meeting. He then calls Mrs. Barron “disgusting” several times, in violation of his own Public Comment Policy, that he put in place. (In self defense, Mrs. Barron likened Mr. Kolenda’s wild reaction to her protests of BOS breaking Open Meeting Law to a screaming dictator. That becomes a focal point. Since Mr. Kolenda turned the audio off, but with the tape still rolling unbeknownst to him, he was shown forcefully yelling and pointing his finger threateningly at her and the podium, while his fellow BOS members were aghast. It was actually frightening to watch. If anyone should have been hauled out by the police, it should have been Mr. Kolenda. Back to the point: THIS CASE IS A BIG DEAL. The Supreme Judicial Court of Massachusetts is about to hear about curtailments on YOUR freedom of speech and this Public Comment Policy. This same threat of police power was also directed against another resident trying to comment during the marathon shotgun session conducted by the woefully inept ZBA, who granted permits that were illegal, a “manipulation” and end run on state law. Fellow Citizens: Let’s move on. With a new recall provision on this BOS; a new oversight committee on this misspending DPW; and new town counsel, who gives proper legal advice in conjunction with common sense and the law. Thank you.

Rebecca Deans-Rowe
2 years ago

It might be helpful to provide some training for those who are willing to serve in this challenging role. Rudeness and visible contempt are not appropriate in interactions with residents. Squelching criticism is not in-line with democratic values.

Michael Weishan
2 years ago

I absolutely concur with Ms. Deans-Rowe. We have had a decade of testosterone driven bad behavior on the BOS that even some of the female members have allowed themselves to fall into. Let’s hope Kathy Cook brings a new era; her opening remarks on assuming the chair seemed to indicate a desire to change course. Enough with the arrogance and kingly ways such TM’s famous boast: “I know probably more about easements than anyone else in the state!” There are words to describe such incredible narcissists, and they rhyme with “Giant Bass.”

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