AP NEWS

AG: Shirley Selectmen Violated Open Meeting Law

March 9, 2019

SHIRLEY -- An Open Meeting Law complaint by former town volunteer Bryan Dumont against the Board of Selectmen recently was resolved, and mostly in Dumont’s favor.

Dumont’s complaint was filed with the Massachusetts Attorney General’s Office more than a year ago. The complaint alleges a protracted delay by the board in providing public records he requested in November 2017 violated the state’s Open Meeting Law.

Specifically, he was seeking 21 sets of executive session minutes dating back to January 2016.

Dumont welcomed the ruling and said it was a “long time coming.”

Selectmen Chairwoman Deb Flagg said the board will “strive” to comply with the law.

The complaint further alleges that the selectmen met in executive session to discuss an individual without notifying that individual, as the law requires.

Assistant Attorney General KerryAnne Kilcoyne of the Division of Open Government notified the selectmen of the review board’s determination in a four-page letter dated Jan. 24, 2019, sent to Town Counsel Lauren Goldberg of KP Law and copied to Dumont and the board.

The selectmen violated the Open Meeting Law on two counts, according to the attorney general: Failing to turn over the executive session minutes when Dumont asked for them and failing to review and release the minutes.

The letter stated, however, that the Open Meeting Law review board declined to review Dumont’s assertion that the selectmen violated the law when they discussed an individual in executive session without notifying him, citing insufficient data.

Still, the law is clear on the subject, and the review board made it a point to say so.

It was, in fact, an Open Meeting Law violation if the selectmen at one or more executive sessions discussed the individual the complaint referred to, former Shirley Police Chief Thomas Goulden, without notifying him. Goulden left under mutually agreed-upon terms after clashing with the board.

Under the Open Meeting Law, as stated in Kilcoyne’s letter, when an elected board discusses an individual in executive session, that person must be notified, in writing, and has the right to attend the meeting and to address the board.

The selectmen have not discussed the complaint publicly since it was resolved.

The matter came up at a previous meeting, shortly after two new members had replaced two former selectmen ousted in a recall, one of whom was the complainant’s wife, Kendra Dumont.

The selectmen said at the time that most of the minutes Dumont requested had been turned over, or soon would be, absent a couple sent to Town Counsel for review.

At a later meeting in 2018, with a new board seated after the annual town election, Selectman Enrico Cappucci said Town Counsel had answered Dumont’s complaint on their behalf and that it would likely be dismissed because it was filed past deadline. As it turns out, that assumption was wrong.

Asked at the time why it took so long to get those minutes out, the selectmen blamed paperwork backlog, short-staffing and clerical confusion.

Given the board’s changed makeup and disarray in the office, with administrators and assistants coming and going in relatively quick succession, the selectmen said that transcribing the old minutes was difficult, but they were working to catch up.

Dumont didn’t buy that explanation when asked about it this week. He learned from a reliable source early on that the minutes in question were good to go long before the board acknowledged it, he said.

The Open Meeting Law review board in its findings also had something to say about keeping minutes current, which under the Open Meeting Law is a must and according to the determination, the selectmen should have reviewed their executive session minutes regularly to determine when they could be released.

Failure to do so was an Open Meeting Law violation the selectmen were cautioned not to repeat.

Dumont, for his part, believes the selectmen, who have repeatedly said their aim is good government, have been anything but transparent.

“This determination was a long time coming,” he said. “This ... and the lack of attention on the part of the selectmen shows a continued and intentional disregard for the law and a deliberate effort to conceal the daily operations of town government from the citizens of this community,” he said.

Dumont provided backup materials that included a dated list of selectmen’s meetings in 2017 and 2018 compared with minutes made available to the public (posted) during those periods, with the former far exceeding the latter as of the beginning of February, this year, although the gap has narrowed since.

The determination, drawing from the complaint, states that when Dumont requested the 21 sets of minutes in Nov. 2017, Town Clerk Bill Oelfke told him many of them had not been completed or approved and that when the board followed up on the request in February 2018, only four sets had been reviewed, although ;the board had met approximately 11 times during that time frame.

The case apparently hinged on the number of board meetings versus the backlog of minutes. Although Dumont got a response to his complaint within the required 10 days, the board didn’t review any of the executive session minutes in question at its next meeting, as required by law, according to the letter. The review board therefore found that “the Board (Selectmen) violated the Open Meeting Law...”

Asked for comment at their recent meeting, the selectmen said they were unaware of the review board’s findings and had not received the letter from the Attorney General’s office.

Selectman Enrico Cappucci said he believed the complaint had been resolved in their favor.

The official determination, however, states otherwise. It reads: “We find that the Board (Shirley Board of Selectmen) violated the Open Meeting Law by failing to properly respond to a request for executive session minutes and failing to periodically review its executive session minutes. We order the Board’s immediate and future compliance with the Open Meeting Law and we caution that similar future violations may be considered evidence of intent to violate the law.”

Town Administrator Mike McGovern said he had not seen the letter but would look into the matter.

Town Clerk Bill Oelfke said he keeps records of all OML complaints but he had not seen the letter.

By Tuesday morning, Chairman Flagg had read it and forwarded an e-mail response.

“The Attorney general recently made a decision regarding past Open Meeting Law complaint dating as far back as 2017,” she said. “The Attorney General considers the matter closed and the board respects that decision. The current board understands the importance of transparency and will strive to comply with the Attorney General’s decision going forward in the future.”