The Stoneham Finance & Advisory Board violated the Open Meeting Law relative to an executive session held in November 2011, according to the Massachusetts Attorney General Martha Coakley's Office.
Spring Street resident Kathleen Sullivan filed a complaint to the Finance & Advisory Board in early November 2011, claiming that the Board "entered executive session to discuss 'public safety' and excluded the Town Administrator (David Ragucci) and a Selectman from that meeting" and "[n]o minutes were taken or recorded" during the meeting, according to a four-page Sept. 20 letter from Assistant Attorney General Amy Nable to Finance and Advisory Board Chairman Russell Wilson, former Finance and Advisory Board Chairman John Carino and Sullivan.
The Attorney General's office reviewed the Nov. 8, 2011 complaint filed with the Board; the Board's Nov. 25, 2011 response; the Nov. 28, 2011 complaint filed with the Attorney General's office and documents attached to the complaint, including the notice for the Board's November 7, 2011 meeting and three news articles related to the complaint; the open and executive session minutes for the Board's November 7, 2011 meeting; a video recording of the open session portion of the Nov. 7, 2011 meeting; and conducted a telephone interview with Carino on July 23, 2012, according to the letter.
"Following our review, we find that the Board did take minutes for the November 7, 2011 executive session meeting, and could exercise its discretion in deciding who was permitted to attend that closed door meeting," wrote Nable in the letter. "However, we find that the Board's November 7, 2011 discussion was not appropriate for executive session and did violate the Open Meeting Law.
"Because our review of the material listed above included executive session minutes that remain confidential, we are unable to provide a full recitation of the facts..."
Sullivan's complaint, which she filed the day after the Oct. 13, 2011 Town Meeting, according to the letter. During the session, Sullivan and Town Moderator Larry Means got into a heated exchange as to whether she could move about the Town Hall Auditorium while Town Meeting was in session.
"On October 26, 2011, the Stoneham Independent reported that, during Town Meeting, Town Moderator Larry Means prohibited attendees from moving about the Town Hall auditorium while others were speaking," wrote Nable. "At one point, according to the article, the Town Moderator 'threatened to have police escort [the complainant] out of the building after she left her seat to ask Town Counsel William Solomon a question.'"
On Nov. 3, 2011, the Finance & Advisory Board posted an agenda and notice—created by Carino—for a Nov. 7, 2011 meeting, which was expected to cover four subject areas including the fiscal year 2013 budget, town moderator, town administrator (information requests) and possible executive session, according to the letter.
"At the time the notice was created, Carino anticipated that one of the other Board members would speak about a 'public safety' issue during the executive session, and that the Town Moderator would attend and participate in that executive session," wrote Nable. "Carino did not know exactly what the discussion would entail, however."
In a video of the Nov. 7, 2011 meeting, Wilson made a motion "that [the Board] go into executive session for the purposes of discussing public safety — safety issues," according to the letter. The motion was seconded and passed unanimously and no roll call vote was taken, according to the letter.
"During the executive session, the Board discussed the Town Moderator's authority and discretion to maintain order during Town Meeting," wrote Nable. "The Board has no direct authority over Town Meeting or over public safety issues generally, but may make recommendations to those with such authority. During the executive session, the Board decided to report its findings on the issue to the Board of Selectmen." However, no report was submitted to the Selectmen, according to the letter.
The Finance & Advisory Board did take minutes for the public and executive sessions and supplied them to the Attorney General's office, so that complaint was dismissed, according to the letter. The Attorney General's office also dismissed Sullivan's claim that the Town Administrator and a Selectman needed to be present for the executive session, according to the letter.
"Unlike open session meetings, which must be open and accessible to all members of the public, public bodies generally have discretion to determine who may attend and participate in its closed door sessions. We therefore find that the Board did not violate the Open Meeting Law by not including these individuals in the meeting," wrote Nable. "As noted earlier, however, the Board should have held this discussion in open session, where all interested parties would have been able to observe its deliberations.
Nable also noted: "...Although not raised by the complainant, we note that the notice for the November 7, 2011 meeting failed to list the reason for the anticipated executive session with sufficient specificity. Public bodies must list anticipated discussion topics in their meeting notices with "sufficient specificity to reasonably advise the public of the issues to be discussed at the meeting ... At the very least, therefore, the notice should have cited the executive session purpose pursuant to which the Board anticipated holding a closed door discussion."
The Attorney General ordered "immediate and future compliance with the Open Meeting Law," and cautioned the Board "that a determination by our office of similar violations in the future may be considered evidence of intent to violate the Open Meeting Law," according to the letter.
From Sept. 20, the Finance & Advisory Board has 30 days to review the minutes from the Nov. 7, 2011 executive session and "release all portions that were not appropriate for discussion under executive session Purpose 4, unless the attorney-client privilege or an exemption to the Public Records Law applies," according to the letter.
"Executive session Purpose 4 enables a public body to keep security measures confidential when it believes that publicly disclosing security plans would decrease their effectiveness," wrote Nable.
After receiving the Attorney General's findings, the Finance & Advisory Board has 21 days to file an appeal in Superior Court, according to the letter.