D.A. Finds Open Meeting Law Violations

December 29, 2009

Ashfield Select Board
Edwin Murray, Chair
Town Hall
P.O. Box 560
Ashfield, MA, 01330

Dear Mr. Murray:

The Northwestern District Attorney’s Office has completed its investigation of complaints that the Ashfield Select Board violated the Open Meeting Law by engaging in certain email discussions of substantive matters over which the Board has jurisdiction. The Open Meeting Law requires that a governmental body’s discussions on such matters be conducted solely at properly posted meetings that are open to the public. The District Attorney’s Office also received complaints regarding the propriety of emergency meetings held on July 2 and July 13, 2009. The Office has reviewed the minutes of these meetings, and well as the minutes of all meetings held in June and July, 2009. This Office makes the following findings:

A. Two June 8, 2009 emails distributed amongst all three Select Board members, one written by Bill Perlman and one written by Tom Ulrich, copy attached hereto as Exhibit A, violated the Opening Meeting Law as they involved a quorum of the Select Board discussing the performance of the police chief and the parameters of his position, both matters over which they have jurisdiction. The remedy for this violation is to make the emails available to the public.
B. A June 23, 2009 email from Mr. Perlman to the other members of the Select Board and reply email from Mr. Ulrich to Mr. Perlman, with copies to R. Dave DeHerdt, violated the Open Meeting Law because they involved discussion or deliberation about matters over which the Select Board has jurisdiction. For ease of reference, a copy of these emails is attached hereto as Exhibit B. Since the content of the emails has been made available to the public and since the matters discussed were subsequently aired at length at public meetings, there is no remedy for these violations. Subsequently, Mr. Perlman recused himself from deciding on disciplinary matters and, in July 2009, resigned his position from the Board.
C. July 2, 2009 Emergency Select Board meeting. This meeting, minutes of which are attached hereto as Exhibit C, was called to order at Midnight on July 2, 2009 for the purpose of making the annual appointment of town officials. The “emergency” that arose was the Board’s failure to appoint the slate during a regularly scheduled meeting. The reason for the emergency did not meet the statutory definition of emergency: “a sudden, generally unexpected occurrence or set of circumstances demanding immediate action.” G. L. c. 39, section 23A. Therefore, the meeting was improperly held. To remedy this violation, the Board must ratify its July 2, 2009 emergency action at a properly posted open meeting.
D. Emails for July 3, 2009, copies of which are attached hereto as Exhibit D, violate the Open Meeting Law as they involve a substantive discussion on a matter over which the Board has jurisdiction. (Footnote: The email from Bill Perlman to the administrator and the other members of the Board does not violate the Open Meeting Law because it is merely a request to place an item on an agenda.) Specifically, the Board discussed taking possession of a town-owned computer being used by the Chief of Police in order to determine whether the Chief had installed software for monitoring other members of the police department via his computer. Subsequent emails do not reveal if any further action was taken by the Board. To remedy this violation, all discussions held regarding the Chief’s computer that were held on July 3, 2009 should be deliberated anew at a properly posted open meeting.
E. A July 9, 2009 exchange of emails between Mr. Perlman and Mr. DeHerdt, with copy to Mr. Ulrich, copy attached hereto as Exhibit E, violated the Open Meeting Law. To remedy this violation, the Board should review the substance of this email at an open meeting and make the email available to the public. If the board believes that the discussion could properly be held in executive session, it should convene an executive session in accordance with the Open Meeting Law’s procedural requirements.
F. A July 10, 2009 email from Mr. Ulrich to Mr. Perlman and Mr. DeHerdt, a copy of which is attached as Exhibit F, regarding suggestions for changing the physical location of the police station and guidelines for the police chief if he returns to work violate the Open Meeting Law. To remedy the violation, the Board should repeat this discussion at a properly posted open meeting.
G. The minutes of the July 13, 2009 emergency meeting, copy attached hereto as Exhibit G, indicate that the meeting was called to discuss a town employee’s resignation. It is unclear why the employee’s resignation would require an emergency meeting. In fact, no action was taken at the meeting on this topic or on other topics discussed. Since the minutes of the meeting have been released to the public, no further action is necessary to remedy this violation.
H. A July 24, 2009 email from Mr. Perlman to town counsel with copy to Mr. Ulrich and Mr. DeHerdt, attached hereto as Exhibit H, violate the Open Meeting Law because it contained substantive and strategic discussion by a member of the Select Board to all other members.
I. A July 25, 2009 email from Mr. Perlman to Mr. Ulrich, copy attached hereto as Exhibit I, violated the Open Meeting Law because it involved substantive discussion by one member of the board to another. As no action was taken with respect to the contents of this email, no further action is required. The remedy for this violation is to make the emails available to the public.

CONCLUSION

The documents submitted by the Select Board have revealed that the Board twice improperly invoked the emergency exception to the posting requirement and held emergency meetings. Further, one of the emergency meetings was improperly convened in executive rather than open session. Some email exchanges amongst Board members involve substantive discussion of matters over which the Board has jurisdiction. Such use of email is prohibited under the Open Meeting Law; email is appropriate for procedural matters only. The Board should release the contents of said emails as detailed above. Once these steps are taken, the District Attorney’s Office will consider this matter closed.

Very Truly Yours,
(signed)
Judith Ellen Pietras
Assistant District Attorney

cc: Town Counsel Donna MacNicol
Complainants

Editor's Note: This post was transcribed from a pdf file on the stationery of the Northwestern District Attorney's Office. (Image files create a problem for dial-up users.)