Jul 092014

The Massachusetts Attorney General’s Office determined Monday that then Chair of the Board of Selectmen Peter Cunningham and the board as a group violated the state’s Open Meeting Law when Cunningham made a series of phone calls to BoS members in April to test the waters for a proposal to waive building permit fees for a local business.

Current BoS Chair Josh Degen said, “I think that this is a lesson that we, as elected officials, have to operate within the law. And while some ideas and some intents may be good, that certainly they should always be discussed during open meeting.”

The original complaint was filed by The Groton Line on May 8 (read the story) and the Board of Selectmen addressed it in its May 12 meeting (read the story). The complaint was not antagonistic. Because members of the Board of Selectmen agreed to disagree on a resolution, the goal of the complaint was 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. (Read the original complaint.)

Although Town Manager Mark Haddad quickly assured Cunningham in the May 12 meeting that he had not violated the law, and town counsel David Doneski filed a written opinion with the Attorney General’s office on May 30 stating that there was no violation, the Attorney General’s office disagreed with each of them. The Groton Line appealed Doneski’s determination to the Attorney General’s office on June 16; the appeal generated this week’s determination, authored by Assistant Attorney General Mark Higgins.

The determination restates the events leading up to the complaint, and concludes:

” … we find that the Board violated the Open Meeting Law. We acknowledge that two of the Board’s members did raise concerns at the time the calls occurred. We also find that the Chair took appropriate action by disclosing the improper communications in an open meeting in an effort to respond to the complaint.

We order no further action but caution the Board that future similar violations could be considered evidence of intent to violate the Law. We now consider this matter closed.”

Read the Attorney General’s Open Meeting Law Determination.

Or read it on the Attorney General’s website.

The violation grew out of a kind thought by Cunningham, to demonstrate community solidarity with Blood Farm as it rebuilt following a devastating December 2013 fire. No one associated with Blood Farm was contacted by Cunningham before he made the phone calls; he was acting on his own initiative.

The AG’s determination describes this as:

“At issue in this complaint are a series of phone calls placed by the Chair to other members of the Board regarding the possible waiver of building permit fees for a local business that suffered a loss due to a fire. In early April 2014, in an effort to demonstrate community support for rebuilding those premises, the Chair called each member of the Board in tum to gauge support for his idea to waive the building permit fees. Two of the Board members (Jack Petropoulos and then Vice Chair Josh Degen — Ed.) stated during their phone calls that they believed such a conversation was inappropriate outside of a posted meeting.”

Current Chair Josh Degen said this morning that the town would not appeal the Attorney General’s determination.

“They are watching us and they will not tolerate any more of this,” Degen said. “Serial phone calls are forbidden. Or any discussion relative to a position advocating for a position among the quorum is wrong. It’s OK for less than a quorum to discuss something — not about how you’re going to vote, but to discuss — ‘Is this an idea to bring forward?’ But once it becomes a quorum, it becomes a serial discussion and that violates the Open Meeting Law. It’s OK to float an idea, one selectman to another, but not to a quorum.

The ruling on serial phone communications between board members may alter the way many other town boards and commissions do business. While it is not uncommon for one board of commission member to see what another thinks about something over the phone, the ruling makes it clear that any member who talks about potential action with a majority of members could be in violation of the law. In particular, this would affect smaller board with only three members — any communication about an action would constitute a quorum.

Town Clerk Michael Bouchard said in April that the town doesn’t have a formal Open Meeting Law training program. It complies with state requirements by asking elected and appointed officials and board and commission members to certify that they have read documents explaining the Open Meeting Law.

Degen said that he will bring up to the BoS his recommendation that town counsel present a mandatory Open Meeting Law training session for all appointed and elected officials.

Cunningham said that he was glad the controversy was resolved and that the town and board would move on.