Plymouth County DA's office rules Wareham selectmen violated Open Meeting Law
December 07, 2009 2:36 PMWAREHAM — The Board of Selectmen violated the state's Open Meeting Law last spring when it met repeatedly in executive session to discuss the controversial “computer audit,” the Plymouth County district attorney's office has ruled.

The ruling, issued Friday, centered on a finding by Assistant District Attorney Mary Lee that the board discussed “matters that exceeded the scope of the stated purpose” of the closed meetings, which was to discuss criminal charges or the filing of criminal complaints.

Lee ordered the board to make public the minutes of the meetings of May 12, May 26 and June 2, with a narrow exception for one matter still pending.

The board must also acknowledge at an open meeting that it violated the Open Meeting Law with its improper executive sessions on May 26 and June 2.

Town Maintenance Director Mark Gifford, who together with Wastewater Treatment Plant operator David Simmons was called one of the “two biggest rats that work for the town” during the June 2 meeting, went to the district attorney for an investigation on the grounds he was not afforded his right to be present when his reputation is being discussed.

Lee ordered that Gifford and Simmons both be given the opportunity to put a letter of response in the official minutes of those meetings.

“This office does not accept the board's interpretation of the comments about Mr. Gifford. From the board's response to this investigation, it is apparent that the comments were made in the normal course of the discussion in executive session and represented one selectman's viewpoint during that discussion,” Lee wrote. “Therefore, that statement is not exempt from scrutiny under the Open Meeting Law simply because it was only voiced by the member.”

The comment, which came from Selectman John Cronan, was accidentally aired on local cable television and on the Web as part a nine-minute segment toward the end of the June 2 meeting, lifting the curtain on the conversation.

Complaints were filed with the district attorney soon after, and an investigation has been under way since.

Neither Gifford nor Simmons answered phone calls Monday.

Lee dismissed virtually all of the selectmen's claims about the computer audit as justifying a closed session.

“The executive session minutes of June 2 and two prior executive sessions purport to explain the reason and purpose of he computer audit,” Lee wrote. “On May 12, while allegedly discussing a person's reputation under purpose (1), the board decided that a computer audit was appropriate to deal with the problems raised.

“The problems went beyond the complaint that arguably raised a concern about possible criminal misconduct and addressed whether the town computers were more generally being used to criticize and denigrate people. The board planned a computer audit ‘to see who is fueling this negative blog ... and to determine the amount of time employees are wasting on personal Web sites.' This stated purpose is not related to a criminal investigation.
“As demonstrated in the May 26th and June 2nd executive session minutes, those private discussions had little if any content about criminal matters,” Lee ruled.

She also wrote that the May 26 meeting minutes reveal that only one of six reasons for the computer audit could even be construed as being a criminal matter, and that the board also talked about another litigation matter having nothing to do with criminal matters.

“Thus the discussion of the general computer audit, as recorded in these minutes, cannot be properly characterized as limited to a criminal investigation where it was undertaken primarily to address non-criminal matters,” Lee ruled.

The June 2 meeting was also unlawful because it strayed well beyond the legal grounds for executive sessions, she wrote.

“The June 2 executive session discussion about the computer audit apparently focused on the details and costs of that audit,” Lee wrote in her ruling, which was addressed to town counsel Kopelman & Paige. “The June 2 discussion also included the statements about Mr. Gifford, another individual and their department without any connection to criminal matters.

“Your letter of July 27 indicates that a criminal investigation was, at best, only part of the computer audit: ‘To the extent that the audit might result in evidence of use of town computers for illegal purposes, such information could have criminal implications.'

“It is not a sufficient justification for the generalized discussion of the computer audit under purpose (5) that evidence of a crime could hypothetically be uncovered while the board is conducting an investigation into non-criminal or other matters. The board must actually be discussing a criminal investigation in order to meet privately,” Lee wrote.

“Even assuming that the board was permitted to enter executive session to investigate the potential civil rights violation or criminal harassment of the individual who complains to the board, the ensuing discussions far exceeded the limited scope of the purpose of the executive sessions by discussing a computer audit into other matters,” she wrote.

Lee also admonished the board for failing to follow the legal method of convening an executive session.

“This office reminds the board of its obligations to begin every meeting in an open session, even when the board intends only to hold discussions in executive session, as it is required by law,” Lee wrote. “The publicly available open session minutes must also reflect the purpose for the executive session announced in the open and the vote of each member during the required roll call vote on whether to enter executive session.”

The district attorney continues to investigate a complaint filed by The Standard-Times this fall over the secretive method the board used to choose a new town administrator. Of particular concern was the seeming absence of public deliberation.



Steve Urbon is senior correspondent of The Standard-Times.


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