, Newburyport, MA

March 23, 2013

AG: Town broke public records law

Private emails violated rules regarding public deliberation


---- — WEST NEWBURY — The Community Preservation Committee got a lesson this week from the state Attorney General’s office on just exactly what it means to legally deliberate.

The seven-member CPC, tasked with overseeing the town’s Community Preservation Act funds, was cited for violating the state’s Open Meeting Law because of 5 emails distributed among its members back in April and May of last year. Tom Atwood, who previously served on the committee, filed the complaint on June 26, 2012.

In a letter issued this month, Assistant Attorney General Hanne Rush states although the committee “as a whole” violated the law, it “was not intentional, but rather the result of a misunderstanding of the law’s requirements.” Rush explained that while a public body may distribute documents via email, the person sending them out must not include an opinion along with it.

“Expression of an opinion on matters within the body’s jurisdiction to a quorum of a public body is a deliberation, even if no other public body responds,” the letter states.

CPC Chairman Judy Mizner said this week that her committee will comply with all requirements set forth in Rush’s letter and will discuss it at its April meeting. The state is requiring “immediate and future” compliance with the law; written certification within 30 days that all members have viewed an OML video training; and public disclosure of the improper emails at the committee’s next meeting.

But Mizner, who wasn’t on the committee at the time of the complaint, also underscored that the violations were unintentional. Rather than a premeditated effort to exclude the public, Mizner sees it as the board’s “lack of clarity” over what it legally means to deliberate. “Most people think of deliberations as discussions that lead to a decision,” she said.

But the law defines deliberation as “an oral or written communication through any medium, including electronic email, between or among a quorum of a public body on any public business within its jurisdiction.” The distribution of meeting agenda, scheduling information or other items for discussion at a future meeting are exempt as long as no members’ opinions are expressed when the documents are sent.

In other words, sending out a draft of a report to the entire committee via email is OK but weighing in with an opinion on that draft report is not.

Apparently, this is where the CPC got tripped up. At a meeting just days before Town Meeting last spring -- as voters were contemplating a significant reduction in the tax surcharge that funds the CPA -- the committee decided it would present a report on town meeting floor. With no additional meetings slated beforehand, the panel tasked member Ann Bardeen with creating a document “to explain the purpose and funding of the CPA, update the town on fund balances and committee activities, and introduce CPA-related articles on the warrant.” As part of her process, Bardeen sought email input from her colleagues on the draft of her report, as well as on strategy about when to present it during the meeting.

The AGs office determined that emails from Bardeen to the committee -- as well as responses back from members Jane Wild and Marge Peterson -- were “improper deliberations outside of an open meeting” because the topics they dealt with were materially related to committee business. These draft revisions, comments and opinions must be shared with a quorum at a properly posted meeting, the letter states.

Rush suggested that advice the committee received from Town Counsel Michael McCarron earlier in the year, which “appropriately cautioned against solicitation of email responses” may have unintentionally caused some confusion because it didn’t specifically state that a member’s opinion should never be included in the documents being distributed.

In response to Atwood’s complaint, the committee argued that the email exchanges were not improper because they occurred as a result of soliciting factual information for the draft report. But the AG’s office disagreed and advised limiting future email exchanges to only those items defined as specifically allowable under the law.

The movement to lower the CPA surcharge last spring stemmed from complaints over a lack of leadership and vision on the CPC since its adoption 7 years ago. Proponents of the effort objected to what they felt was unfairness in the allocation of CPA funds --in particular a decision the previous year not to allow funding for certain repairs at the Page Elementary School.

Voters narrowly defeated the proposed reduction at the polls last May after narrowly approving it at a Special Town Meeting in October 2011. Any change to the surcharge must clear both hurdles.

At a Special Town Meeting last spring, voters funded $745,000 from CPA for a heating distribution system at Page School. Currently the CPA balance is $1,447,902.