, Newburyport, MA

November 1, 2012

State finds selectmen violated open meeting law

Internal finance report should have been discussed in public, ruling says

By Jennifer Solis Correspondent
Newburyport Daily News

---- — WEST NEWBURY — The Board of Selectmen has been found by the state attorney general’s office to have improperly met behind closed doors last year to discuss an internal control report on the Finance Department.

The selectmen’s executive session meeting on Oct. 5, 2011, violated the state open meeting law, according to the ruling. But because the financial review had already been released to the public last November, the attorney general’s office offered its ruling for “future guidance” only, Assistant Attorney General Jonathan Sclarsic wrote in a letter dated Oct. 23 to Town Counsel Michael McCarron.

The finding is in response to a complaint filed last December by former selectman Tom Atwood.

On Oct. 5, 2011, selectmen met to discuss a draft version of a report created by the accounting firm Melanson Heath & Company that “examined potential municipal payroll discrepancies, personnel reimbursements and vendor contracts and recommended changes.”

At question was whether it was appropriate for a public body wishing to discuss a draft version of a report to do so in private session by citing an exemption of public records law governing “inter-agency memoranda or letters relating to policy positions being developed by the agency.”

Selectmen had argued that because the document was being used to “formulate internal controls to prevent repetition” of errors previously made in the Finance Department, discussion in executive session was permissible.

But the attorney general’s office ruled that “the board should have discussed the Melanson report in open session, even in its draft form” because “a public body cannot prospectively use the exemption to discuss a policy decision that — but for the existence of a document that could be protected — they could not discuss in executive session.”

Sclarsic added, “To allow such a reading of the law would permit public bodies to discuss any policy decision behind closed doors as long as they are developing a written document alongside their deliberations.”

He said, “such an exemption would swallow” a provision of state law requiring that “all meetings of a public body shall be open to the public.”

The only time this particular exemption is allowable is in cases when the public body is discussing whether to release a lawfully withheld document, considering a document that state law requires be kept confidential or discussing information contained in a document that would infringe on an individual’s right to privacy if revealed publicly.

“None of those circumstances were present here,” Sclarsic concluded.

The attorney general’s office also reviewed complaints Atwood filed on Aug. 18, 2011, and Nov. 23, 2011, which alleged other open meeting law violations involving closed-door sessions surrounding a lawsuit filed by former Finance Director Tracy Blais.

The first complaint was found not to have merit and the second couldn’t be reviewed because it was submitted after a required filing deadline.

The first complaint involved a meeting on May 18, 2011, when the board “held discussions off the record in executive session regarding a legal matter involving a former employee.” Atwood wanted the minutes to more accurately reflect that discussion. But the state declined to investigate this complaint because Atwood filed it 54 days after the alleged deficiencies in the minutes occurred.

State law requires that complaints be filed with the chairman of the public body within 30 days of the alleged violation or within 30 days of when the violation “should reasonably have been discovered.” Atwood was serving as a selectman at the time and should have been aware, Sclersic wrote.

In the third complaint, Atwood charged that minutes of the board’s May 25, 2011, executive session meeting “were insufficiently detailed.” Saying that they included just two sentences from a 15-minute discussion, Atwood argued that the minutes were “missing entire topics discussed that evening related to the minutes of May 18, 2011, which are important to the events discussed as well as future possible actions related to current pending legal actions.”

But the state found selectmen “substantially complied” with a requirement under the open meeting law that states “the minutes should contain enough detail and accuracy so that a member of the public who did not attend the meeting could read the minutes and have a clear understanding of what occurred.”

Sclersic didn’t let selectmen entirely off the hook, however. His letter said the minutes “could have included more detail regarding the board’s discussion.”

“Although the content of meeting minutes beyond those minimum requirements is left to the discretion of the public body, we encourage public bodies to include additional detail when possible,” the assistant attorney general wrote.

Blais alleged she was discriminated against and defamed in 2011 in retaliation for a sexual harassment charge she brought against former selectman John McGrath in 2007. Atwood, McGrath and Selectman Glenn Kemper were also named in the suit. Selectmen recently negotiated a $100,000 settlement with Blais, $40,000 of which voters will be asked to approve at a Special Town Meeting on Nov. 8.