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HomeMy WebLinkAboutOML JMS attachment to Complaint June 7Attachment to Open Meeting Law Complaint JMS Holdings, LLC SE#3-6084 I. STANDINGComplainant:Laurence (LARRY) P. MORINemail: larry.mariner@comcast.netcell phone number: 508-737-7423 Status of “Standing”:Resident of Town of Barnstable since May, 2001Member of Barnstable Conservation Commission since 10/25/2005 II. SPECIFICS OF ALLEGED VIOLATIONSA. Notice of Intent (SE#3-6084) for Replacement of a Dock, Pier, Ramp and Float at exact same locationof the existing dock and pier approved under SE#3-3237, dated 7-2-1997; the subject NOI was filed on 3/27/2023, with hearing dates: April 11, April 25, then hearing as to “Proposed Findings” on May 9, 2023B. Basis of Allegations:1. Following the presentation of evidence and extensive discussions andregarding the relevant issues, one member of the Commissionrecommended that the issues should be resolved just by usingtwo words: “substantial expansion”, whereupon the chairmoved that the Commission find that the replacement of theexisting pier from being part seasonal and part permanent, to an entirely“permanent pier” would constitute a “substantial expansion”.By a vote of 5-1, the motion passed; the Complainant cast the onlynegative vote.Note: There are seven (7) members on this Commission. Atthe hearing on April 11, John Abodeely was not present; however,at a later time between that date and April 25, he met the requirementsto qualify for the quorum for the April 25 hearing under the “Mullin Rule”;further, however, another member (George Gillmore) was not present forthe April 25th hearing, he was not on the quorum and was not eligible toqualify under the “Mullin Rule” because only one member of thecommission may do so for a particular filing. 1.2. Following that vote, the chair decided that he wanted to “take the matterUnder Advisement”, and to continue the matter until 5/9/2023, at whichtime he would submit “proposed findings”. The commission votedto take the matter “under advisement” which had the effect ofclosing the matter in terms of presentation and admission of furtherevidence; at that point the matter appeared to depend upon the “findings”.3. Prior to closing the hearing on this application, and in response to continuing the matter for the purpose of preparing “proposed findings”, the Complainant advised the chair on Zoom that whenever “proposed findings” had been drafted, they must be made available to the entire commission no laterthan Friday, May 5, to enable each commission member to review the“findings” and to be prepared to respond, whether in writing or verballyat the May 9 hearing either to support, propose clarification or changes, or to object to the findings. The chair did not agree to abide by the request, and the chair did not say whom he would select or consult with or when or how the “findings” would be provided to all of the Commission members.4. At the opening of the hearing on this matter on May 9,(a.) the chair had not submitted anything in writing to the entirecommission membership;(b.) the chair informed the members that he had selected two membersof the commission to “assist” him in his deliberations:John Abodeely is one of two attorneys on the commission and hewas the one who had proposed reliance on the two words:“substantial expansion”, andPeter Sampou, who had presented his opinions regarding thepotential or likely adverse impact on the shellfishhabitat that would be caused by the removal andreplacement of the existing pier, even though theevidence relating to the status and condition of theshellfish habitat at the time preceding the originalsurveys prior to the construction of that pier (1997)were no different after the pier had been in place andused for more than 17 years as confirmed by shellfishsurveys from 1997 and 2023;(c.) the chair also disclosed to the members that he had included the following additional persons to assist him in preparing the “findings”, namelyDarcy Karle (the Conservation Administrator) and Kate Connelly (the Assistant Town Attorney);(d.) the chair did not acknowledge that the remaining four members ofof the Commission had not participated and were not aware of whatthe “Proposed Findings” did contain or declare, but 2.(e.) the chair did make it very clear that he had deliberated in hispreparation of such “findings”; and further as noted in more detailstated below [Sec. II, D. Part C], the minutes from the April 25th hearingrevealed significant alterations made by the Vice Chair (LouiseFoster), about which the Complainant alleges further supports theallegations of this Complaint; (f.) Notwithstanding the verbal recitation of the findings by the chair, the commission acting as a body had never afforded or allowed to dispute, discuss, clarify, vary or even comment on what the findings represented, included or excluded, or how they were phrased and expressed. In other words, there was no transparency regarding thecontent of the decisions and findings, or the manner by which they weredeliberated and determined;(g.) at the conclusion of disclosing the “findings” only by readingthem at that time and without any further discussion, the commission voted 5-1 to approve them; whereupon;(h.) the Complainant advised the chair that he would be preparinga written Objection to the findings, which document has since beenfiled with the Commission Administrator and constitutes part of the record in this matter. The Objection has been circulated to all members of the commission, and when this Complaint is submitted to the Attorney General’s Division of Open Government (the “Division”), the Objection will be provided accordingly. C. Pertinent Excerpts from the Open Meeting Law Guide, dated October 6, 2017The Complainant contends and presents excerpts from the following standards andcriteria from the OML Guide as being the basis and foundation upon which this Complaint not only is based, but also justifies investigation, findings, opinions, enforcement and consequences as suggested below.1. The Concept and Definitions of “deliberation” are as follows:(a.) “… to ensure transparency in the deliberations upon which public policy is based;(b.) A meeting is generally described as “a deliberation by a public body withrespect to any matter within the body’s jurisdiction”;(c.) a deliberationis a communication between or among members of a public body;(d.) The OML defines deliberation as “an oral or written communication through any medium, including electronic mail [email], between or among a quorum (emphasis added) of a public body on any business within its jurisdiction”; 3.(e.) To be a deliberation, the communication must involve a quorum of the public body…. Thus, a communication among less that a quorum of the members of a public body will not be a deliberationunless there are multiple communications among the members of the public body thattogether constitute communication among a quorum of members.(f.) Courts have held that the OML applies when members of a public bodycommunicate in a serial manner (emphasis addd) in order to evadethe application of the law; further(g.) …. The expression of an opinion on matters within the body’sjurisdiction to a quorum of a public body is a deliberation even if noother public body member responds. For example, if a member of apublic body expressing his opinion on a matter that could come beforethat body [does] violate the law even if none of the recipients respond.2. The Guide further describes and declares four questionsasking:“What will determine whether a communication constitutes a “meeting” subject to the law?”(a.) Is the communication between or among members of a public body?Answer: yes in this instance, need not be among a quorum;(b.) Does the communication constitute a deliberation?Answer: yes, not only did the chair admit that he had deliberatedbut also, it was clear from the manner in which the chairwithheld his proposed findings notwithstanding admonitionsnot to do so, but also did not make them available to the othermembers of the commission until he read the findings atthe beginning of the hearing on May 9;(c.) Does the communication involve a matter within the body’s jurisdiction?Answer: without a doubt; and(d.) Does the communication fall within an exception to the law?Answer: NO, not one of the five listed exceptions [p. 4 of the Guide]apply to the either the hearings on April 11 or 25, but alsoincident to the time period from April 25 until May 9, and thenat the May 9 presentation of the findings, there was not any discussionby and between the members of the commission.3. Further, the Rule suggests to determine: was there a “Subcommittee” at issue?In this instance, and from July 2015 when the chair assumed his role in that capacity, he has never requested or notified in advance to the entire commission that he was going to call upon one or two members of the commission to “assist” him when it came to try to help him decide what he wanted the “findings” to reveal, most notably in this instance, to limit the facts to “substantial” and “expansion” [changed to “change”], but without any intention to apply the dimensions of the proposed “Permanent” pier, or to acknowledge that there would be no “change” as to itspositioning or location. 4.But, as indicated below [Sec. II, D. Part B] regarding the existence and relevance of “Patterns”, the chair never discussed or took steps to obtain commission approval to form a “subcommittee”, even though he was selecting preferred members of the commission, not to obtain or consider only factual differences or opinions that would differ from his own, but rather to function as a “DeFacto Subcommittee” to thereby evade the transparency requirements associated with such a body.While the Guide as well as recent opinions from the Division indicate thatSubcommittees must comply with the OML, it is anticipated that in response to this Complaint that the chair and/or the commission may try to claim that if and when “less than a quorum of members of a body” was to meet to “advise and make recommendations”, it is unmistakable that these three members of the Commission gathered for the primary purpose of writing the findings and deliberating the decisionby limiting the essential words that would not only require relevant definitions, but would also expose the absence of the true purpose and reasons why the proposed project should be approved as presented.D. Additional Factors to consider include the following:Part A. The manner by which the Proposed Findings were presented to the Commission:1. The chair selected only two members of the commission to “help” him writethe Findings and to avoid having to recognize all of the issues that had been presented and discussed. But the goal from the outset was to selectively limit the true meaning of certain words which would have been negated by the facts presented by the Applicant, most notably dealing with: “substantial”, “expansion” and “change”. And as the chair had done often when resorting to “proposed findings” in earlier decisions, he chose only those committee memberswho would back him up as to the terms and concepts that would enable his views to be approved. As noted earlier under B.4., the only “issues” that the chair wanted to cover in the “findings” were:--- denying the application under “substantial expansion”, and--- opining that the replacement of the current pier to a permanent pier (without mentioning that the dimensions would be identical, and that the location would be the exact same) would constitute an adverse impact on the shellfish habitat.2. Following the vote on April 25 (written in the findings as “substantial change”, not “expansion”), arguably the chair considered that by “taking (the matter) under advisement”, he could control the entire process as to who he would select to participate in writing the findings and making the critical decisions, and to use what turned out to be two full weeks to keep the findings from being disclosed to the remaining four members of the commission. To do so in this particular application, the three selected members were willing to be complicit with him in the process.3. What transpired after April 25, including the drafting (and then the revisions) to theminutes, arguably the content of the “proposed findings” could be read into the record and thereby became part of the minutes for the May 9th hearing, notwithstanding what the video of the entire hearing would reveal. [However, see later comments under Sec. II, D., Part C. regarding the minutes from the April 25th hearing]. 5.Part B. Recognizing the Relevance and Impact as to the “Pattern” by which the chair“Taking Under Advisement” and “Proposed Findings” have been handled.1. The most significant concern should be the method and manner by which thechair chose to arrive at his “proposed findings”, is just part of the Pattern by which he has followed for several previous applications which predate the dates during which the subject Notice of Intent was presented before the Commission.(a.) While it is understood and recognized that as to the interplay between the previous filings discussed under “Patterns” below, the time frame and dates of those decisions may preclude considering them as additional violations of the Open Meeting Law, nonetheless any references to prior matters which were very similar to those at issue in this Complaint deserve consideration by the Division as they relate to how the Open Meeting Law violations as alleged in this Complaint have established as a repetitive “Pattern” to be considered and weighed as to the significance and severity of these issues.(b.) the “Pattern” can best be viewed as circumventing the Open Meeting Law requirements dealing with Quorum and factual and opinion Deliberations that were intentionally withheld from the entire commission, the applicant and the public until the actual reading of the proposed findings;(c.) by limiting the Deliberation process as to only those facts and opinions thatwere going to be included within the “proposed findings”, only two (2) of the members of the commission would be informed by having participated in supporting the chair’s position and opinions to ensure a desired outcome, but also precluded any semblance of a meaningful “deliberation” by and between any of the other members of the Commission;(d.) a separate Objection to the actual “findings” has been prepared and filed by this Complainant, a copy of which has been circulated to the entire commission and to the Applicant’s consultant, and will be submitted to the Division along with this Complaint at the appropriate time as prescribed in the Guide and Instructions;(e.) regarding references to prior applications in each of those hearings, the “decisions” to be made were “taken under advisement” at the chair’s request. In order to enable this Complaint to be timely filed and served upon the chair within thirty (30) days, the Complainant will utilize the period within which the chair and the commission is required to respond, duringwhich time the Complainant will review the various agenda, minutes and other pertinent procedural and factual information that is relevant to support and expand upon the nature and basis of the “Pattern” to illustrate and confirm how these “proposed findings” have been presented to the commission in substantially the same manner and technique as at issue, and will be useful to confirm and evaluate the “Pattern” to be relevant to support a violation of the Open Meeting Law; accordingly,(f.) The Complainant reserves the time and right to gather and submit such information, although this information will be prepared and readily available within that time. . 6.Part C. The Significance and Manner by which the Minutes from the April 25th hearingwere handled and how they relate very specifically to the Open Meeting Law1. Pertinent Excerpts from the Open Meeting Law Guide, dated October 6, 2017Taken from Page 16 of the Guide, the following question is posed:“What records of public meetings must be kept​?Public bodies are required to create and maintain accurate minutes of all meetings,including executive sessions. The minutes, which must be created and approved ina timely fashion, must include:*** the date, time and place of the meeting;*** the members present or absent;*** the decisions made and actions taken including a record of all votes;*** a summary of the discussion on each subject (emphasis added);*** a list of all documents and exhibits used at the meeting; and*** the name of any member who participated in the meeting remotely.As applied to the issues at hand in this Complaint, if the chair had chosen to seek the formation and approval of a Subcommittee, including designating the names of the members whom he preferred to participate, deliberate and decide, arguably the objectivewould have beenconfined to the preparation of the findings thatwould be received by the remaining members of the commission without controversy and voted “aye”. However, had a valid subcommittee been both recognized, formed and approvedby the entire commission, then perhaps the deliberations and decisions of the three members might have been viewed as “transparent”. In this instance, however, there was no public notice, no record or minutes of decisions made, factual matters considered, actions taken, how many subjects were actually discussed, or what documents and exhibits were considered.2. The minutes of the Commission’s hearings on April 25, 2023, are very significantas they relate to these alleged violations of the Open Meeting Law(a.) First, the minutes for almost every hearing held by the Commission have beenprepared by an experienced and qualified Staff Member, Kim Cavanaugh.Almost without exception, she has taken notes during every hearing andhas timely and thoroughly prepared minutes either from those notes, and/orfrom the video when it became available. Then, the draft version of the minutes have been circulated to the members of the Commission prior to having them placed on the Agenda to be reviewed, edited if needed, discussed and ready for approval. Except for very minor changes or edits (such as typos, misspellings, correction of person’s names), there have been virtually no errors or changes to the minutes that were ever needed. 7.(b.) In this instance, the initial set of minutes was sent to the Commission memberson May 3 [8 days following the hearings] by Kim Cavanaugh, the StaffMember who takes notes during each hearing and prepares the minutes in atimely and professional manner. There is absolutlely no doubt that while theinitial set of minutes was accurate, Kim did not have anything to do with makingthe “revisions” or “changes” to the minutes that were actually presented to thecommission for review and approval. These minutes were ten (10) pageslong, which based on the 17+ years of experience on this Commissioner, thisComplainant has never recalled a set of minutes of that length or quality ofaccurate information. However,(c.) on May 5, an unexplained “revised” set of minutes appeared, with many changes that raised immediate concerns by the Complainant. Then, either later onMay 5 or the following day, a further set of “edits” or “revisions” were circulated, but without explanation. While these “edited” or “revised” versionscame from Kim Cavanaugh’s email address, it was beyond obvious that none of those “revisions” had been made by Kim, but rather by someone else who, until the hearing on May 9, had not been known or identified.(d.) On May 4, when the Agenda for the May 9 hearing was posted and circulated,the minutes from the April 25 hearings were included to be reviewed for approvalbut without any reference to the “revisions” that had been made. (e.) Thereafter, when the Video had become available (May 8) on the Town website,the Complainant watched and listened thoroughly to the entire video, taking notes as to what was discussed, and compared the notes to the “revisions”. Almost without exception, most of the “revisions” had never been discussed, mentioned or voted upon during the April 25th hearing, but the content,if accepted and without review of the Video, could have bolstered the inaccuraterecitation of facts and opinions in the “Findings”.(f.) From a close perusal of the “revised” minutes, and being totally familiarwith what the real issues that had been presented, discussed, and either votedupon or minimized by the limited range of issues, it became obvious that these changes were not “minutes” at all but rather just the rephrasing to (try to) present a (concealed) objective. “Minutes” are intended to be an accurate record of what was said, rather than creating a false picture into a defensive rebuttal to thereafterfacts actually presented and which they knew would prove to be detrimental the desired objective.(g.) The final item on the Agenda for[on May 9 called for the the review and approval of minutes. Without any discussion, a motion was made to approve the minutes “as submitted”. The motion was second and voted: five in favor, one opposed. The Complainant was the only Member who objected and voted “NO”. At that time, one other member [Gillmore] abstained only because he had not been on the quorum for the April 25th hearing. (continued on next page) 8.In reaction to the Complainant’s vote of “No”, another member of the commission (John Abodeely) asked the Complainant why he had voted “no”, to which the Complainant responded that the changes had not been made by Kim and the content of most if not all of the changes did not correlate with or relate to any of the actual factual issues and opinions that had been discussed during the hearing on April 25th.(h.) At that point, the Vice Chair (Louise Foster) answered, “I made those changes, what’s wrong?”(i.) The answer to her question is simple: these are not “edits” or “revisions” to minutes,rather they represent a collection of changes to present a position intended to support the chair’s desired findings and to exclude the facts as stated in the Project Description (the narrative in the Notice of Intent) as well as an abundance of sources of credible information presented in rebuttal to any presumption or opinions supporting the application and the Applicant’s evidence and position, all of which were presented during the hearings and are included in the entire record of the proceeding, but excluded from the “findings” proffered by the chair.(j.) It has never been the authority of any individual member of the commission,including either the chair or vice chair, to unilaterally change the wordsof the minutes or to replace or submit words that were not covered during thehearings that not only were inaccurate, but also that were rephrased to advance and present a position contrary to that presented by the applicant,but opposed by the chair.(k.) It remains to be determined upon what basis and what authority the Vice Chairmade such changes without approval from the entire commission. TheComplainant will initiate a review and hearing as to those unanswered questions.Dated: June 7, 2023Respectfully Submitted by//Laurence P. Morin​//Laurence (Larry) P. MorinMember of BarnstableConservation Commission 9.