Select Board Cited For Two Open Meeting Law Violations

 HARWICH – The Division of Open Government in the state Attorney General’s Office has cited the select board with two violations of the Open Meeting Law related to executive session notices and failure to announce that the board would be returning to open session prior to convening in executive session. 

 The Open Meeting Law (OML) complaints were filed by West Barnstable resident Ron Beaty, who refers to himself as a regional community activist and Open Meeting Law advocate. 

 “I am happy to see that my ongoing pursuit of open, transparent and accountable government is yielding positive results,” Beaty wrote in an email regarding the decisions issued by Assistant Attorney General Matthew Lindberg.

 “The public’s right to know regarding all levels of governmental operations is of paramount importance, including the Harwich Select Board,” Beaty wrote. “Moreover, I hope to serve as a role model to others to bring this same kind of dogged pursuit of government transparency and accountability to state, and local government as well.” 

 “I agree with a lot of it,” Select Board Chair Donald Howell said of the decision. “I consider this an essential criticism.”

Howell said the board was using a template for union and non-union contract executive sessions for a period of time. He also agreed that a meeting had to be opened publicly before entering an executive session. The board was already taking steps to change the old practices before this decision was issued, he said.

 Beaty filed the complaints on Sept. 16, charging the select board violated the Open Meeting Law on Aug. 4, 18 and 25.

The board’s violation was only in the manner of the posting, not in any other ways, according to Lindberg’s decision. 

The law requires a public body to post notice of meetings at least 48 hours in advance, and postings must include a “listing of topics that the chair reasonably anticipates will be discussed at the meeting. Public bodies are required to list topics on a notice with sufficient specificity to reasonably advise the public of the issues to be discussed at the meeting,” according to the decision.

The board’s postings announced that the meetings were to discuss strategy with respect to collective bargaining for all town unions and non-union personnel. According to the ruling, the board used boilerplate language in defining the purpose of the sessions.

 “Because the board referenced negotiations with ‘all town unions and non-union personnel’ when it anticipated that it would discuss only some, we find that the board violated the Open Meeting Law,” the decision reads.

 The board also violated the law when it posted notices that suggested that no open session would precede an executive session.

When the only business of the open session is the procedure for entering executive session, the public body must list “open session” on the meeting notice, according to the decision. Without such notice, members of the public are essentially denied the opportunity to attend and learn the reasons for the executive session. 

 “Here, however, the notice explicitly listed a start time of the executive session prior to the ‘regular’ meeting. Because a reasonable reading of the notice suggested that the board would convene in executive session prior to meeting in open session on these three dates referenced in the complaint, we find that the board violated the Open Meeting law,” the ruling reads.

Beaty asked that a fine be issued for an intentional violation, but the agency declined to issue one, ruling that “there is nothing within the materials before us that would suggest that the board acted with deliberate ignorance of the law’s requirements or with intent to violate the law.”

The date and time of posting the meeting notices were recorded in accordance with the Open Meeting law, according to the decision. 

 The Division of Open Government decision ordered the board to initiate immediate and future compliance with the Open Meeting Law and cautioned that similar violations in the future may be considered evidence of intent to violate the law. 

Howell said the board will be working on a policy to be presented to all boards and committees requiring that the topics of executive sessions be specified in open session before going into executive session.