Supervisor of Records
Office of the Secretary of the Commonwealth
One Ashburton Place
Boston, MA 02108
December 6, 2012
Appeal of the Denial/Failure to Respond by the Town of Cohasset
to Requests for Public Documents
Through a series of requests for public documents – see attached letters dated October 25, 2012, November 2, 2012 and November 9, 2012, I have asked for and been denied copies of at least one memorandum and potentially several others dealing with the Town of Cohasset’s employment contract with Acting Town Manager Michael Milanoski.
Further, I expanded that request in my letter of November 9th and to date have received no response from the Town to that expanded request. I am including the responses that I did receive from Paul Carlson, Chairman, denying my request and claiming attorney/client privilege.
In his letter of November 9, 2012 Chairman Carlson references the Memorandum (“Memo”) regarding the town’s contract with Milanoski in his claim of privilege. My appeal is to that claim of privilege as well as the town’s failure to respond to my expanded request.
The Memo involves a discussion of an existing public document, the acting town manager’s contract of March 3,2012. As early as September 2012 the Board began discussing extending the contract, which ends on June 30, 2013, to June 30, 2015. On September 1 1, the Board, through its chairman, issued a statement saying
“.. .the Board has determined that it is in the best interests of the Town of Cohasset to enter into a new contract with Michael Milanoski so that he can continue serving the town through June 30,2015 as Acting Town Manager.”
On October 25, 2012 the Board held an emergency meeting to issue a press release that states in part “Michael (Milanoski) is currently working under a March 2012 contract naming him as Acting Town Manager through June 30, 2013… In September…the Board entered into executive session and voted to come to terms on a contract with Milanoski through June 2015. We did this based on advice from counsel and the belief that ‘acting’ positions can and often do last for multiple years. We recognize the need to improve upon the current contract and Chairman Paul Carlson and Lee Jenkins are working with counsel on this matter. We do not yet have a negotiated extension with Michael Milanoski.”
I was present at that emergency meeting and have included a recording of it. There was extensive discussion by the three selectmen present of the Memo and its impact on the existing contract as well as its impact on the press release as it relates to the contract extension.
Some of the relevant discussion by various selectmen:
“…I have discussion in view of what we received this week from Town Counsel. I’m wondering if we don’t have a good contract.”
“…The email impacts ongoing negotiations… we are working to make that (contract extension) happen.”
“…There was no advice from counsel – probably we should amend the statement to say “after speaking” with counsel, instead of advice.”
“…I don’t think Town Counsel even approved the contract, who wrote it? Town Counsel wouldn’t have sent this memo if he had seen the contract’”
“The contract has issues.”
“..I have questions based on the Memo, about where we are atloday?”
“I do have some questions based on that memo”’
As a journalist I believe the public has a right to know what counsel had to say- since the Vice Chairman stated that this wasn’t really advice, about an existing public contract and its issues. Any claim of privilege was waived by the lengthy public discussion of what was contained in the memo.
Since October 25th, there has been no further mention of negotiating a contract extension’ Rather the Board has stated that there was a “legal snag with town counsel” (the Memo or Memos) and they have instead sought to change a sentence in the Town Manager Act addressing the qualifications of the town manager. Again the public has a right to know what the snag entails, as there are no longer on-going negotiations to relate a privilege to.
It seems clear that both parties to the contract negotiations, the Town AND Milanoski have had access to these memos. If Milanoski has reviewed the memos, any claim of privileged advice is thereby waived; and review by the public is appropriate and legal. The Board has offered no grounds, other than a blanket claim of privilege, to justify withholding these and other requested documents from the public. There appears from the circumstances to be no litigation, contract negotiation or other confidential context to shield disclosure of these documents; certainly the Board has articulated no such grounds despite bearing the burden of demonstrating the existence of the privilege and establishing that it has not been waived. On the contrary, there are many reasons to believe it has been waived, if it existed in the first place.
In closing, my appeal to your office involves both the refusal to produce Town Counsel’s Memo(s) as well as the failure to respond within 10 days to my expanded request for documents in the letter dated November 9, 2012.
The town will be addressing the change to the Act at a December 10th Town Meeting and full public discussion requires a full understanding of the issues. I therefore ask for a speedy response to my appeal.
The appeal was made by