The Division of Open Government of the Massachusetts Attorney General’s Office found that the Marblehead Select Board violated the Open Meeting Law when it failed to sufficiently capture public comments from its meeting of May 18, 2022.
The state office issued its determination April 12 after reviewing a complaint from Marblehead resident Allen D. Waller, which noted that the Select Board had failed to include two comments made during the May 18 public comment period when it approved the minutes for the public meeting in June.
“The first comment was that, since at this meeting, a new town administrator had been appointed, an agenda item, it would be an opportune time to issue a [request for proposals] for the position of special town counsel, the current incumbent firm being Mead, Talerman, and Costa, who authored the Town’s response in this matter,” wrote Waller in an email to the Attorney General’s Office. “The second comment pertained to the choice made by the Select Board for the town administrator position, an agenda item.”
Special Town Counsel Elizabeth Lydon, in an August letter to Waller, responded that meeting minutes are meant to summarize what occurred during public meetings, not offer a complete transcription.
“The comments which you refer to were not made as part of any discussion by the [Select Board],” Lydon wrote to Waller. “As noted in my previous responses to your complaints, the Open Meeting Law requires that minutes set forth the date, time, and place, 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.”
However, the state underscored that public comment was an agenda item and therefore needed to be memorialized in the minutes.
“The relevant facts are not in dispute,” wrote Elizabeth Carnes Flynn, assistant attorney general in the Division of Open Government. “The Select Board held a meeting on May 18 which included a public comment period at the end of the meeting. Members of the public spoke during the public comment period. The minutes of the May 18 meeting, which were approved by the Board on June 15, do not record the public comment period at all.”
Flynn ordered the Select Board’s immediate and future compliance with the Open Meeting Law and cautioned that similar future violations might be considered evidence of intent to violate the law.
Additionally, the Select Board was ordered to amend the minutes of its May 18 meeting to include the public comment period of that meeting within 30 days of the date of the letter.
Select Board Chairman Moses Grader said the board has taken corrective administrative action and would amend the May 18 minutes. He added the violation was not intentional wrongdoing.
“We believe that — for the reasons stated by town counsel in its response letter to Mr. Waller — that we were in compliance with Open Meeting Laws regarding the omission of public comments in the minutes, which did not relate to specific meeting agenda items and did not involve any discussion by the Select Board,” Grader told the Marblehead Current.
He added, “We have always endeavored to provide as much transparency as possible within our understanding of the law and are happy to comply with the judgment of the Attorney General’s findings on this issue.”