Town’s latest defense against an Open Meeting Law Complaint (Updated)

On March 14th, David Parry filed an additional complaint accusing the Board of Selectmen of violating Open Meeting Law. This one focused on the board’s failure to document discussions about a potential Warrant Article. He claims that omissions were to avoid discussion of a likely controversial Article and links the actions as related to his prior complaint.

Town Counsel issued a response this week negating the charge. The response defends that there was no deception or intent for it. But it also indicates that they should better document “such topics” in the future.

Parry informed me that he was satisfied with that acknowledgement and won’t appeal the response. (He is still waiting to hear back from the state on his previous OML complaint response that he did appeal.)

So, what was the March complaint about? Parry claimed that the Board intentionally tried to keep discussions about changing the form of government to a Strong Town Manager model out of the public eye by minimizing references on the Warrant and in minutes.

And he alleged that the reason was linked to his prior violation complaint:

This other complaint was filed by me (Parry) against the same 2 officials involved in this case (namely the [Town Administrator (TA)] and Chair of the BOS) who on August 22, 2017, disciplined me at a secret, closed meeting of 4 persons which included these 2 officials. This discipline (including prohibiting me from going to Town Hall without prior appointments) was enacted without providing any specifics, and without due process. I was unable to confront their false accusations, and only learned about the matter AFTER the fact. To impose discipline, these officials claimed to rely an the hypothetical powers of the TA to discipline me. I contend that no such powers exist in the existing town bylaw establishing the TA.

However (THIS IS THE KEY POINT) such powers would be increased IF THE TA POSITION WAS CHANGED TO A TOWN MANAGER, precisely as these 2 officials have just proposed. However, they have made this proposal without adequate public notice, and without an accurate record, Which I believe was INTENTIONAL — in that it was an attempt to MINIMIZE its publicity, and potential objections, because it would obviously be controversial, just as it was when the TA bylaw was first enacted in 2013, when the alternative of a Town Manager was REJECTED.

His main evidence was a significant omission from minutes for February 22nd, despite his purportedly raising the issue to Town officials before minutes were approved. 

At the February 6th meeting, BOS Chair Dan Kolenda suggested adding the Town Manager Article to the Warrant for this year’s Annual Town Meeting. The agenda had included “Closing of warrant” but didn’t specify that any articles might be discussed or added. However, the board didn’t dig into the issue that night. Instead, they agreed to discuss the possibility at their February 22nd meeting. And the discussion was well documented in the minutes.

The agenda for the 22nd included an update on the Warrant, but again didn’t specify adding the Article. (It was listed in the meeting materials packet. Unfortunately, due to an apparent glitch, the link to that packet may have been missed by some.)*

That night, selectmen discussed the Article for over 8 minutes. In the end, they decide to make the initiative one of their two priorities over the next year. That discussion wasn’t included in the minutes. It was the only Article for which no action was listed.

Parry claims that he warned the Town about the omission in time for them to fix the issue:

I called the TA office on Mar 5, spoke to a senior staff person, and asked that the draft minutes be corrected before approval which was to occur at the BOS meeting on Mar 6. The TA staff agreed to look into the matter, but the draft minutes were NOT corrected, despite my complaint, and there being adequate time to correct the draft

On March 6th, no mention was made of the omission from the minutes, which were unanimously approved. The only defense Town Counsel Aldo Cipriano provided was that if the board had moved forward with the Article, it would have posted the Warrant and held an advance hearing. But the same minutes did include decisions to eliminate other Articles on the Warrant. That discrepancy wasn’t explained.

Cipriano’s main defense against deception was the way some residents (like me) follow the BOS meetings. The meetings were broadcast and recorded by Southborough Access Media. They continue to be available online through SAM’s website and YouTube channel.

But, given the fact that not all of the boards meetings are broadcast**, I hope members and staff focus more on the last line of his letter:

We would recommend, however, that agendas and minutes in the future consistently reference such topics

Cipriano’s response was the third he wrote within the past six months. In March, he issued a response to another complaint centered around Town Warrant discussions. In December, he responded to Parry’s complaint which was based on an official warning Parry received from Town officials. Parry’s complaint claimed that the Town officials violated OML in their handling of the issue.

You can read Parry’s March complaint here. You can read the response here.

*The link to the page that included the packet was available through the Town’s meeting calendar. But the link that was sent by email and added to the BOS page under its agenda list went straight to the packetless agenda. That’s not the usual practice.

**(The board’s morning meetings are rarely, if ever, recorded. And closed executive sessions never are, though once the confidential period has passed minutes are approved and released.)

Updated (5/10/18 12:07 pm): I fixed the link to the Town’s response letter.