There were three attendees in the audience of the May 21 meeting of the Marion Planning Board, two of which were attorneys.
At issue was an Open Meeting Law (OML) complaint filed by Attorney John Mathieu on behalf of his client Chris Loranger and 324 Front Street JV, LLC.
The complaint alleges the Planning Board members violated the OML by communicating with each other via emails about the project after the April 17 meeting during which the members discussed Loranger’s project on Front Street.
In the complaint, a copy of an email from Administrative Assistant Maureen Murphy asked the members to refrain from further emails, since their discussions were considered “deliberations” and can only occur at a public meeting.
The complaint, which alleges allthe Planning Board members committed the violation, states that after the April 17 meeting “…[The] Board continued Deliberations by emails between the members on April 19 & 20, 2018…”
Loranger, through the complaint, asked the board to “withdraw any and all correspondence created as a result of these illegal deliberations…. I specifically request the Memo created and forwarded to the Zoning Board of Appeals be formally withdrawn.”
After receiving Mathieu’s hand-delivered letter on May 21 questioning the validity of the board going into executive session, Town Counsel Jonathan Witten addressed the board, reassuring them that their intent to go into executive session to discuss the complaint was legitimate.
Mathieu’s letter stated that the notice for this evening’s meeting “…fails to indicate the specific purpose of the executive session which is therefore a violation…” of the Open Meeting Law.
The statute enumerates ten purposes for executive session and requires that a public body must state on its public notice the specific purpose for the executive session.
Mathieu contested the board’s fulfillment of that requirement with the note on the evening’s agenda that stated “Executive Session Open Meeting Law Complaint.”
Witten assured the board they had complied with the law, but also said, “Could there have been more specificity? Sure.” Witten pointed out as evidence of the adequacy of the notice the fact that Mathieu was attending the meeting on behalf of his client.
In the vote to go into executive session, Planning Board Vice Chairman Stephen Kokkins abstained, citing his absence from the meeting that the flurry of emails addressed. However, Chris Collings, attending remotely via telephone, suggested that this discussion was about emails the entire board received, and therefore Kokkins could be involved in the vote for executive session.
“At what point do you have an open meeting violation?” asked Collings. “[When you have received] read receipts from everyone?” Witten replied that whenever an email is sent between one or more members of the board, there is a violation if what is discussed is non-ministerial (i.e. a member may be late or other non-substantive matters).
Board member (and Selectman) Norman Hills was visibly impatient to move into executive session as the discussion continued.
Kokkins pressed Witten on the question, saying, “Personally, I need clarification. [Is it] a quorum or a single pair?”
Witten went on to say, “Whenever there is a deliberation between two members in a matter before the board … any communication must be brought before the board in public session…. Anytime we email each other, we risk violating the Open Meeting Law. Don’t communicate with each other – just through Terri [Santos].”
According to Witten, although the quorum for a five-member board is three members, two members could be considered a subcommittee and therefore any communication of substance is potentially a violation of the Open Meeting Law.
Collings noted that some towns are using Facebook to have discussions, which Witten said was a bad idea.
The Planning Board proceeded with its executive session, and while the board met Mathieu commented, “This is a violation of the Open Meeting Law right now. The notice is faulty,” and said he would be filing another complaint with the Attorney General regarding this meeting.
Mathieu said he believes the Planning Board’s response to the Zoning Board of Appeal’s request for comment on an appeal pertaining to Loranger’s project was “personal.”
“You have to scratch your head,” said Mathieu. “[The Town says it’s in favor of] condos and elderly housing – until someone proposes it; then suddenly no one is for it.”
The Planning Board directed Witten to answer the Open Meeting Law complaint.
Although Comments to the ZBA regarding 324 Front Street was on the agenda, this was not discussed.
The next meeting of the Marion Planning Board is scheduled for June 4at 7:00 pm at the Marion Town House.
Marion Planning Board
By Sarah French Storer