AG: Town Council Violated Open Meeting Law

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By: James Kinsella
Published: 08/10/12

The state Attorney General’s Office has ruled that the Barnstable Town Council violated the state Open Meeting Law in several instances related to executive sessions held by the council in February and March 2011.

“We find that the council violated the Open Meeting Law by conducting business in executive session that should have been conducted in public on both February 17, 2011, and March 17, 2011, and by failing to include sufficient detail about an executive session topic in the notice for the council’s February 17, 2011, meeting,” assistant attorney general Jonathan Sclarsic wrote in a July 25 letter.

Mr. Sclarsic addressed the letter to attorney John Davis of Boston, who represented the town council in response to a number of Open Meeting Law complaints.

Both the February 17 and March 17 executive sessions violated the Open Meeting Law, according to Mr. Sclarsic, because the council in both cases discussed topics not appropriate for executive session.

The February 17 executive session concerned then-town council administrator Donald Grissom. The president of the town council, Frederick Chirigotis, initiated the session to consider strategy with respect to negotiating a contract with the administrator, then an at-will employee.

“After President Chirigotis raised the issue, however, the conversation quickly turned to other considerations, such as whether to offer the administrator a contract at all; whether to combine the administrator role with another administrative position; what the administrator position entailed; and whether the current administrator was competent to perform the job,” Mr. Sclarsic wrote.

Although the topic anticipated by the president was appropriate for executive session, Mr. Sclarsic wrote, “the topics that were actually discussed should have been discussed in open session.”

As for the March 17 executive session, ostensibly held to conduct contract negotiations with non-union personnel, Mr. Sclarsic wrote that the core of the discussion was the relationship of then-town manager John C. Klimm with the council.

“This discussion, although potentially embarrassing or controversial if revealed to the public, was not appropriate for executive session,” Mr. Sclarsic wrote. “The discussion involved Mr. Klimm’s relationship with the council and his job performance. The council was not, at that time, negotiating or renegotiating a contract. Therefore, the entire session should have been conducted in public.”

The assistant attorney general went on to state that the council did not violate the Open Meeting Law by failing to announce the status of the March 17, 2011, executive session minutes at its April 7, 2011, meeting.

“However, following its May 19, 2011, approval of those executive session minutes, the council should have stated that it would continue to withhold the executive session minutes from public disclosure,” Mr. Sclarsic wrote.

“We order the council’s immediate and future compliance with the Open Meeting Law, and caution that future violations may be considered evidence of intent to violate the law,” the assistant attorney general wrote.

The attorney general’s office did not order training on the Open Meeting Law because many council members attended a training conducted by the office in Barnstable shortly after the violations occurred.

“However,” Mr. Sclarsic wrote, “we order that any current members of the council who were not present for that training view the training video available at the attorney general’s website, and that the council certify within 30 days after receiving this determination that all members have attended or reviewed the video of an Open Meeting Law training conducted by the attorney general’s office.”

Former town council member James H. Crocker Jr. of Osterville made the Open Meeting Law complaints to the attorney general’s office.

In a separate letter to Mr. Davis, also dated July 25, Mr. Sclarsic concluded that the council did not violate the Open Meeting Law at a June 2 meeting and again prior to a June 29 meeting.

Town councilor Janet Joakim of Centerville made the Open Meeting Law complaint related to those meetings to the attorney general’s office.

In her complaint, filed with the town council on July 1, 2011, Ms. Joakim stated that the council on June 2 considered several Open Meeting Law complaints, but was unable to proceed when five councilors left the meeting to defeat the necessary quorum.

Ms. Joakim further stated that Mr. Crocker, then a council member, spoke prior to the council’s June 29 meeting with six other members in effort to secure a vote to remove the town manager, who at that time was Mr. Klimm.

Mr. Klimm subsequently agreed to an early buyout of his contract. He has taken a job as town administrator of Portsmouth, Rhode Island.

In his letter concerning the complaints, Mr. Sclarsic said an effort to defeat a quorum does not violate the Open Meeting Law, because a quorum of the council is not engaging in a deliberation as defined by the law.

The assistant attorney general also credits an assertion by Mr. Crocker that he did not communicate with a quorum of the council outside of a meeting to urge them to support removing the town manager.

“While Mr. Crocker may have told the town manager that he had the votes to remove him, it appears he based this statement on his overall experience with the council members, and not on specific conversations with six or more members,” Mr. Sclarsic wrote.

During the public comment section of last week’s town council meeting, Mr. Crocker faulted what he said was Mr. Chirigotis’s failure to discuss the attorney general’s finding on the Joakim complaint during the pre-council press conference or in an August 2 interview on “Barnstable This Morning”, a news show produced for the town cable television channel.

Mr. Crocker said the attorney general’s decision exonerated two current and four past town council members (one of whom was Mr. Crocker.)

In reply, Mr. Chirigotis said, “Let it go. Just let it go. It’s in the past. The attorney general’s decision is available. It should be posted on the [attorney general’s] website. Everyone can read it and decide what it means for themselves.”

Town councilor Ann B. Canedy of Barnstable Village said the problem raised by Ms. Joakim complaint had not been entirely fixed.

“There were people who were harmed, whose reputation was harmed by that particular complaint,” Ms. Canedy said. “…The accusations in that complaint were found to be not meritorious, and I believe that to be the point that Mr. Crocker was making.”

Mr. Chirigotis said the attorney general’s office had specified the remediation for the council to follow concerning the Open Meeting Law complaints. “Let’s move on,” he said.

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