May 122014

When the Groton Board of Selectmen takes up its second agenda item Monday afternoon, “Open Meeting Law Issue — Blood Farm Building Permit Discussion,” it will be wrestling with a kind thought that went awry in its execution. The discussion will deal with the unintended consequences of Chairman Peter Cunningham’s wish to help a local business resolve a crisis. (The BoS meeting begins at 5 p.m. today to avoid a conflict with the Town Meeting continued session at 7 p.m. tonight. – Ed.)

Cunningham was shocked when he walked past the fire lines last December 29th, down the hill to where the Blood Farm butchery was smoldering after a devastating overnight fire. But he was already thinking about ways the town could help Barney Blood and his family, and family business, and its employees. He told Blood that the town would do whatever it could to help.

As the recovery got under way, the town didn’t have much of a role — dealing with insurance companies, demolishing the wreckage, talking with architects. Selectman Jack Petropoulos, State Representative Shelia Harrington, developer and businessman Steve Webber, and others put together a community-based effort to assist the employees who had lost their jobs. Other than moral support though, the town didn’t have a role.

This March, the Blood family had committed to rebuilding. The snow was melting, ground was thawing, and construction work was underway. Cunningham thought of a possible way the town could assist the centuries. Would it be possible to waive the building permit fees, usually a percent of the construction project, that the builder pays the town?

It was a kindhearted gesture. To spare the Bloods any embarrassment if the idea did not fly, Cunningham did not approach them. Instead, on April 2nd, he reached for the phone, and called the other members of the Board of Selectmen to see what they thought. And this is where the unintended consequences began to develop.

After a series of interviews with all five members of the Board of Selectmen, with the Massachusetts Attorney General’s office spokesman, and several private attorneys, The Groton Line filed a formal Massachusetts Open Meeting Law Complaint. Unlike many such complaints, the complaint is not antagonistic. Because members of the board have agreed to disagree, the goal of the complaint is to ask the state Attorney General’s office to look at the way different selectmen handle board business and rule whether or not serial phone calls violate the state’s open meeting law.

Here’s the text of the complaint, filed Thursday, May 8 (or view the complaint here):

On or about April 2, 2014, Chairman of the Groton Board of Selectmen Peter Cunningham made a series of phone calls to all members of the BoS, individually, asking each member what he or she thought about waiving building permit fees for a local business that was rebuilding after a fire. He repeated some of the phone calls on or about April 4, 2014, to contact selectmen again and ask their thoughts, in particular the two members of the board who had not ventured an opinion during the initial round of phone calls. Mr. Cunningham allegedly mentioned to each person he called what the overall feelings of the other members were.

The waiving of town permit fees is not something the Board of Selectmen directly controls, but it does, or could, have influence through its supervisory role of town employees who do have the power to waive town permit fees.

During the phone calls, Mr. Cunningham allegedly said that he wanted to keep the phone calls private and asked selectmen not to talk about the calls. He also allegedly said that he did not want the matter to be discussed in open meeting, out of deference to the privacy of the owner of the affected business.

One member of the Board of Selectmen, Vice-chairman Joshua Degen, says that he told Cunningham that he thought the calls may be in violation of the Massachusetts Open Meeting Law.

Another member, Jack Petropoulos, says that he told Cunningham that in his view the calls were in violation of the Massachusetts Open Meeting Law.

Cunningham and the other two members of the board, Anna Eliot and Stuart Schulman, have stated that they viewed the phone calls as routine communications between colleagues, and that the phone calls did not constitute a violation of the Massachusetts Open Meeting Law.

Is this type of serial phone calling, or polling, of members of the Board of Selectmen a violation of the Massachusetts Open Meeting Law? Is it a deliberation? Further, are the alleged admonitions to keep the conversations secret and that they would not be discussed in open meeting, a violation of the Massachusetts Open Meeting Law?

In the section of the complaint form describing the “What action do you want the public body to take in response to your complaint?” is this resolution:

I request that the Groton Board of Selectmen review the complaint, agree on what happened, and ask for an opinion from the Attorney General’s office about whether the actions do or do not violate the Massachusetts Open Meeting Law.

Town Counsel may be of value in gathering information and offering an opinion on a possible violation, but the Attorney General’s office would be preferable because it does not have any possible conflict of interest.

There is no precedent for waiving fees for any type of permits for private property project in Groton. Town Planner Michelle Collete was decisive, “We don’t waive building permits or fees.” She explained that this is a routine administrative procedure of the building department and as far as she knew, permits have never been waived.

Barney Blood, contacted after the controversy surfaced, has told both Cunningham and Petropoulos that even if the town had offered to waive the fees, he would have refused because he did not want any special treatment from the town.

What do you think?

Mark Higgins, an Assistant Attorney General for the state, recommended that people interested in this area of the Massachusetts Open Meeting Law look at two similar cases on which his office has ruled:

To see them, open , scroll down the list of cases and read:

  • OML 2013-76
  • OML 2013-75