Cohasset Selectman Martha Gjesteby wins Open Meeting Law Complaint against her board

Tinytown Unleashed has learned that The Attorney General has found FOR SELECTMAN MARTHA GJESTEBY in her open meeting law complaint against the 2012-2013 Board of Selectmen. Selectmen on that date were Paul Carlson, Lee Jenkins, Dianne Kennedy, Fred Koed and Gjesteby).

Letter from the Attorney General

September 3, 2013

 Paul Carlson, Chairman (2012-2013 board)

Board of Selectmen

4 Highland Avenue

Cohasset, MA 02025

RE: Open Meeting Law Complaint

 

Dear Mr. Carlson:

This office received a complaint from Martha Gjesteby dated February 8, 2013, alleging that the Cohasset Board of Selectmen (the “Board”) violated the Open Meeting Law, G.L. c. 30A, §§ 1825.

The complaint was originally filed with the Board on or about January 15, 2013, and the Board responded to the original complaint by letter dated January 20, 2013. In her complaint, Ms. Gjesteby alleges that the notice for the Board’s December 18, 2012 meeting failed to list topics with sufficient specificity and that the Board discussed topics in executive session that were not appropriate for executive session.

In reaching a determination, we reviewed the January 15, 2013 complaint filed with the Board; the Board’s January 20, 2013 response; and the February 28, 2013 complaint filed with our office. Additionally, we reviewed the notice and draft open and executive session minutes of the Board’s December 18, 2012 meeting. Finally, we reviewed the notices and draft minutes for the Board’s January 8, 2013; January 15, 2013; and January 29, 2013 meetings.

Following our review, we find that the Board violated the Open Meeting Law by failing to identify which union and/or nonunion personnel it would be discussing in executive session on December 18, 2012, and by discussing a topic in executive session that should have been discussed in open session.

FACTS

The notice for the Board’s December 18, 2012 meeting included the topic: “Executive Session (Exception #2 &3) Suggested Motion: Move to go into ES to discuss strategy with respect to preparation for negotiations and negotiations with union and nonunion personnel that may have a detrimental effect on the bargaining position of the town if held in open session, and to reconvene in open session. Public Discussion of Executive Session.” (emphasis in original).

During the meeting, as a final matter of business, the Board entered into executive session.

The minutes state that; [Chair Paul] Carlson moves to go into ES @ 9:13 pm, Gjesteby concerned about that if it [is] concerning [Interim Town Manager Michael Milanoski's] contract that she has never supported the existing contract and by advice of her attorney she should recuse herself.

Gjesteby wants to excuse herself about only this one item, coming back for open session.

Moved by Carlson, second by [Board member Diane] Kennedy, each member polled

[Board member Fred] Koed yea,

[Board member Lee] Jenkins yea,

and Gjesteby yea.

Because the minutes of the Board’s executive session have not yet been publicly released, we do not recount their content in detail here. However, from our in camera review of the minutes, it is clear that the Board discussed union contracts as well as the contract status of certain nonunion

personnel. Following that discussion, while still in executive session, the Town Manager raised an issue about a breach of confidentiality within the Board. The Board then held a lengthy discussion regarding the issue.

DISCUSSION

The Open Meeting Law was enacted “to eliminate much of the secrecy surrounding deliberations and decisions on which public policy is based.” Ghiglione v. School Committee of Southbridge, 376 Mass. 70, 72 (1978). The law requires that meetings of a public body be properly noticed and open to members of the public, unless an executive session is properly convened. See G.L. c. 3OA, §§ 20(a)( b), 21, One such executive session purpose, Purpose 2 is “[t]o conduct strategy sessions in preparation for negotiations with nonunion personnel or to conduct collective bargaining sessions or contract negotiations with nonunion personnel.” G.L. c. 30A, § 21(a)(2). Another purpose, Purpose 3, allows a public body to enter executive session “[t]o discuss strategy with respect to collective bargaining or litigation if an open meeting may have a detrimental effect on the bargaining or litigating position of the public body and the chair so declares.” G.L. c. 30A, § 21(a)(3).

The Open Meeting Law also requires that public bodies post notice 48 hours in advance of a meeting and include, a “listing of topics that the chair reasonably anticipates will be discussed at the meeting.” G.L. c. 30A, § 20(b). Topics must be stated with “sufficient specificity to reasonably advise the public of the issues to be discussed at the meeting.” 940 CMR 29.03(l)(b). We generally consider a topic to include sufficient specificity when a reasonable member of the public could read the topic and understand the anticipated nature of the public body’s discussion. See OML 201234.’

Furthermore, before entering into executive

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Footnote: 1 Open Meeting Law determinations may be found at the Attorney General’s website,

www.mass.gov/ago/opemneeting.

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session, the chair must state the purpose for the executive session, stating all subjects that may be revealed without compromising the purpose for which the executive session was called. G.L. c. 30A,§ 21(b).

The notice for the Board’s December 18, 2012 meeting stated that the Board would discuss “preparation for negotiations and negotiations with union and nonunion personnel” in executive session. This statement and the verbal statement made at the time to Board voted to enter executive session were not sufficiently specific. See OMT 201397; OML 201239; OML 201156; OML 201115.

The Board should have identified on the meeting notice the bargaining unit or individual that was the subject of the executive session, and the Board Chair should have publicly identified the bargaining unit or individual prior to convening the executive session. Id.

We therefore find that the Board violated the Open Meeting Law.

The Board also discussed a topic in executive session that should have been discussed in open session. Following the Board’s discussion of union and nonunion contracts, the Town Manager raised an issue about a breach of confidentiality within the Board. The Board then held a lengthy discussion regarding the Town Manager’s assertion. There is no executive session purpose that permits a public body to discuss behind closed doors a breach of confidentiality or other protocol, unless the public body is discussing a complaint or disciplinary matter under Purpose 1. See G.L. c. 3OA, § 21(a). Because the Board did not enter into executive session under Purpose 1, this topic should have been discussed in open session.

CONCLUSION

We find that the Board violated the Open Meeting Law by failing to identify which union and/or nonunion personnel it would be discussing in executive session on December 18, 2012, and by discussing a topic in that executive session that should have been discussed in open session. We order immediate and future compliance with the Open Meeting Law, and caution the Board that future similar violations may be considered evidence of intent to violate the Law.

Additionally, we order the Board to review the minutes from the December 18, 2012 executive session and release all portions that were not appropriate for discussion in executive session.

This review must occur within thirty (30) days of receiving this determination, and the Board • i 2 shall certify to this office in writing that it has complied with this order.

We now consider the complaint addressed by this determination to be resolved. This determination does not address any other complaints which may be pending with our office or the Board.

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Footnote 2: If it has not done so recently, we also recommend that the Board review the remainder of the December 18, 2012 executive session minutes to determine whether continued nondisclosure of the portions that were appropriate for executive session under the Open Meeting Law is warranted, and publicly announce that determination during an open session meeting.

___________________________

Jonathan Sclarsic

Assistant Attorney General

Division of Open Government

cc: Martha Gjesteby

© Copyright 2013 Tanna K, All rights Reserved. Written For: Tinytown Unleashed
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