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HomeMy WebLinkAboutOML 2024-21 - Barnstable Conservation CommissionTHE COMMONWEALTH OF MASSACHUSETTS OFFICE OF THE ATTORNEY GENERAL ONE ASHBURTON PLACE BOSTON, MASSACHUSETTS 02108 (617) 727-2200 www.mass.gov/ago February 6, 2024 OML 2024 – 21 VIA EMAIL ONLY Kathleen Connolly Assistant Town Attorney Kathleen.Connolly@town.barnstable.ma.us RE: Open Meeting Law Complaint Dear Attorney Connolly: This office received two complaints alleging that the Barnstable Conservation Commission (the “Commission”) violated the Open Meeting Law, G.L. c. 30A, §§ 18-25. The first complaint was filed with the Commission by Laurence Morin,1 on or about June 7, 2023,2 and with our office on August 1. The second complaint was filed with the Commission on June 9, by Attorney Brian Wall on behalf of his client JMS Holdings, LLC (“JMS”), and was filed with our office on August 4. You responded to the complaints on behalf of the Commission by letters dated June 27. Together the complaints allege that 1) the chair of the Commission, Tom Lee, improperly deliberated outside of a meeting when drafting a proposed finding related to a Notice of Intent filed by JMS; and 2) the minutes of the Commission’s April 25 meeting are insufficient.3 Following our review, we find that the Commission violated the Open Meeting Law by creating insufficient minutes for its meeting held on April 25. We find that the Commission did not otherwise violate the Open Meeting Law. In reaching this determination, we reviewed the 1 At the time the complaint was filed with the Commission and with our office, Laurence Morin was a member of the Commission. 2 All dates are in 2023, unless otherwise stated. 3 The complaints and requests for further review raise additional issues that we decline to review because they either do not, even if true, constitute violations of the Open Meeting Law or were not raised in an original complaint first filed with the Commission. See G.L. c. 30A, § 23; 940 CMR 29.05; OML 2019-19 (“The Division of Open Government’s statutory authority concerns compliance only with the Open Meeting Law.”); OML 2021-186, n.1 (“We generally decline to review an allegation that was not included within the original complaint to the Board because the Board has not had an opportunity to respond to it.”). 2 Open Meeting Law complaints, the Commission’s responses, the requests for further review, minutes of the Commission’s April 25 meeting, and portions of video recordings of Commission meetings held on April 11, April 25, and May 9.4 FACTS We find the facts to be as follows. The Commission is a seven-member public body; therefore, four members constitute a quorum. JMS filed a Notice of Intent with the Commission seeking to convert a seasonal pier to a permanent pier. The Commission held public hearings regarding JMS’ Notice of Intent on April 11 and April 25. During the April 25 hearing the Commission discussed, among other things, whether the change from seasonal to permanent constituted a substantial change such that the request would fall under an updated version of the Commission’s regulations. At one point the Chair stated that he could draft a finding that the change from a seasonal pier to a permanent pier was a substantial change and as such JMS’ request fell under the new regulations. Ultimately, the Commission voted, five to one, in favor of drafting such a finding. Thereafter, the Chair asked JMS’ representative how they wished to proceed. The representative asserted that JMS did not want to continue the hearing and instead wished for the Commission to make a decision. The Commission then discussed its options for moving forward—approve the request subject to conditions, deny the request, or take the matter under advisement. Ultimately, the Commission voted, five to one, to take the matter under advisement so that it could consider the proposed finding at its May 9 meeting. Prior to the May 9 meeting, the Chair drafted the proposed finding. As part of his drafting process, the Chair sought input from Commission members John Abodeely and Peter Sampou, as well as Conservation Administrator Darcy Karle and a Town attorney. During the Commission’s May 9 meeting the Chair read the proposed finding aloud. There was then some discussion, including statements from Mr. Morin objecting to the substance of the finding as well as to the fact that the finding had not been shared with the full Commission prior to the meeting. Thereafter, the Commission voted in favor of accepting the proposed finding. The Chair then read aloud proposed special conditions for the project, and the Commission voted to accept the special conditions. DISCUSSION I. The Chair Did Not Violate the Open Meeting Law By Seeking Input from Individuals, Including Two Commissioners, When Drafting the Proposed Finding. The Open Meeting Law requires that, unless lawfully convened in executive session, all meetings of a public body must be open to the public. G.L. c. 30A, § 20(a). The Open Meeting Law defines “meeting,” in relevant part, as “a deliberation by a public body with respect to any matter within the body’s jurisdiction.” G.L. c. 30A, § 18. In turn, the law defines “deliberation,” in relevant part, as “an oral or written communication through any medium, including electronic mail, between or among a quorum of a public body on any public business within its jurisdiction.” Id. 4 Video recordings of Commission meetings can be found at https://www.town.barnstable.ma.us/boardscommittees/Conservationcommission/. 3 A quorum of the Commission is four members. As such, we find that the Chair did not improperly deliberate outside of a posted meeting when he communicated with Commissioner Abodeely, Commissioner Sampou, the Conservation Administrator, or legal counsel as these were not communications between or among a quorum of the Commission. Therefore, we find no violation with respect to the allegation that the Chair improperly deliberated outside of a meeting when drafting the proposed finding.5 II. The Commission Violated the Open Meeting Law by Creating Insufficient Minutes of Its April 25 Meeting. The Open Meeting Law requires that a public body “create and maintain accurate minutes of all meetings, including executive sessions.” G.L. c. 30A, § 22(a). Minutes must include “the date, time and place [of the meeting], the members present or absent, a summary of the discussions on each subject, a list of documents and other exhibits used at the meeting, the decisions made and the actions taken at each meeting, including the record of all votes.” Id. When reviewing minutes for compliance with the Open Meeting Law, we look for substantial compliance with the accuracy requirement. See OML 2013-64. By substantial compliance, we mean that the minutes should contain enough detail and accuracy so that a member of the public who did not attend the meeting could read the minutes and have a clear understanding of what occurred. See OML 2012-106. When summarizing discussions, we encourage public bodies to include dissenting or minority opinions whenever possible. Where significant debate on a matter occurs and one or more members of the body or the public disagree with the decision ultimately taken by the public body, public bodies should note the opposing viewpoints in the meeting minutes. While it is not necessary to record the comments of every speaker, and we acknowledge the difficulty of doing so where there are many speakers whose remarks may even overlap, if a particular individual speaks at some length or is the only one to offer an argument for or against a proposal, that person and his or her comments should be identified in the minutes. See OML 2019-167; OML 2012-29. We understand Mr. Morin’s complaint to allege that the minutes for the Commission’s April 25 meeting do not accurately record the discussions held during the hearing regarding JMS’ Notice of Intent. After review of the minutes and recording of the April 25 meeting, we agree. Under the subheading “JMS Holdings LLC,” the minutes set forth a bulleted list of the “issues discussed.” Although the bullets provide some information about issues that were discussed, overall, the minutes fail to summarize the discussions that occurred. Indeed, in some places the minutes simply state that discussion of an issue or options occurred without then summarizing the discussion. Additionally, the minutes fail to include minority viewpoints or arguments against the Commission’s ultimate decision to find that changing the pier from seasonal to permanent was a substantial change. Although this was the Commission’s ultimate 5 To the extent the complaints allege that the Chair, Commissioner Abodeely, and Commissioner Sampou constituted a subcommittee, we find no evidence that the Commission created a subcommittee. Instead, the Chair volunteered to draft the proposed finding and then two Commissioners later assisted the Chair in his drafting. See OML 2017-111 (finding that no subcommittee was created where a single volunteer was sought to work on a matter and another board member thereafter, on their own initiative, volunteered to assist). Open Meeting Law determinations may be found at the Attorney General’s website, www.mass.gov/ago/openmeeting. 4 finding, the minutes do not accurately record the discussion on this point. The end result is minutes that do not accurately record what occurred such that a member of the public who did not attend the meeting could read the minutes and have a clear understanding of what took place. We also note that the minutes contain some inaccuracies such as indicating that the five-to-one roll call votes were unanimous. Finally, to the extent Mr. Morin’s complaint alleges that a member of the Commission did not have authority to revise draft minutes, we note that the Open Meeting Law does not speak to who has authority to revise meeting minutes. However, we also note that when a public body member substantively revises draft meeting minutes, those revisions may not be shared with a quorum of the public body outside of a properly noticed meeting. See OML 2020-136 (finding a violation where a member of a public body emailed the entire public body providing her suggested edits to meeting minutes). CONCLUSION For the reasons stated above, we find that the Commission violated the Open Meeting Law by creating insufficient minutes for its meeting held on April 25. We find that the Commission did not otherwise violate the Open Meeting Law. We order the Commission’s immediate and future compliance with the Open Meeting Law and caution that a determination by our office of a similar violation in the future may be considered evidence of an intent to violate the Open Meeting Law. Additionally, we order the Commission, within 30 days of receipt of this determination, to amend the minutes of its April 25 meeting to include sufficient detail summarizing the discussions that occurred. We now consider the complaints addressed by this determination to be resolved. This determination does not address any other complaints that may be pending with the Commission or with our office. Please feel free to contact our office at (617) 963-2540 if you have any questions regarding this letter. Sincerely, Elizabeth Carnes Flynn Assistant Attorney General Division of Open Government cc: Barnstable Conservation Commission c/o Darcy Karle, Conservation Administrator (via email: darcy.karle@town.barnstable.ma.us) Brian Wall, Esq. (via email: bjw@troywallassociates.com) Laurence Morin (via email: larry.mariner@comcast.net) Ann Quirk, Town Clerk (via email: ann.quirk@town.barnstable.ma.us) 5 This determination was issued pursuant to G.L. c. 30A, § 23(c). A public body or any member of a body aggrieved by a final order of the Attorney General may obtain judicial review through an action filed in Superior Court pursuant to G.L. c. 30A, § 23(d). The complaint must be filed in Superior Court within twenty-one days of receipt of a final order.