Board Of Registrars Continues Hearing On OML Violation Complaint Until June 1

The Amherst Board of Registrars (BOR) met Monday May 24, 2021 to hear an Open Meeting Law (OML) complaint filed by Carol Gray , one of the lead petitioners in an effort to force a referendum on borrowing for the Jones Library renovation and expansion.

The complaint alleges three violations of the OML at BOR meetings on May 7 and May 10, and was filed with the Office of the Attorney General on May 14. The complaint can be found here.

Present for the hearing were Commissioners Jackie Gardner, Dee Shabazz, Jamie Wagner, and Sue Audette (Town Clerk and Ex-officio member of the Board). Staff: Amber Martin (Assistant Town Clerk), Sean Hannon (IT Director), and Greg Corbo (Town Counsel)

Election:
The board unanimously elected Jamie Wagner to chair this meeting only. At the two previous hearings, the Board elected Sue Audette as temporary Chair over the objections of Dee Shabazz, who said that Audette was an ex-officio member and that the meetings should be chaired by an elected representative of the public. She also noted that Audette was the subject of the complaints that the BOR would be hearing and hence would have a conflict of interest if she served as Chair.

Hearing Outcome
The Town Attorney and Town Clerk appeared to dismiss Complaints 1 and 3 below but no formal vote of the Board was taken on these issues. Attorney Carbo agreed that there was substance to Complaint 2 and the Board decided that they would continue their discussion of that complaint and offer a remedy at the next meeting of the Board on June 1 at 1 p.m. That meeting can be joined using the link below.

 https://amherstma.zoom.us/j/88044967932 Or One tap mobile : US: +13017158592,,88044967932# Webinar ID: 880 4496 7932 Or Telephone: US: +1 301 715 8592 or +1 312 626 6799

Corbo explained that once an OML complaint is filed with a public body, the body must respond to the complaint within 14 days. The response can either be a remedy or a response to the Attorney General explaining why the complaint is not judged to be valid.  The response is sent simultaneously to the complainant and to the AG. If the complainant does not agree with the response they can request an investigation by the AG.

Gray’s complaint charged three violations on the part of the BOR at its meetings on May 7 and May 10.

1.  Failure to create and maintain accurate minutes of the past three Board of Registrars’ meetings.

Section 22 of the Open Meeting Law states in relevant part:

Section 22. [Meeting Minutes; Records] (a) A public body shall create and maintain accurate minutes of all meetings, including executive sessions, setting 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.

The complaint states that there are no Board of Registrars’ minutes posted in the Town’s archive for agendas and minutes of Boards and Committees.

2.  Failure to create and approve minutes in a timely manner.

Section 22 of the Open Meeting Law further states:

(c) Minutes of all open sessions shall be created and approved in a timely manner. The minutes of an open session, if they exist and whether approved or in draft form, shall be made available upon request by any person within 10 days.

The complaint states that In the two Board of Registrars’ meetings of May 7 and May 10, 2021, there was no discussion of approving prior Board minutes. In response to a query from Gray, the Town Clerk’s office responded on May 13:

Since the Board of Registrars meets very infrequently, there are very few sets of minutes from years past. In fact, the folder that contains the total sum of minutes has only 9 meetings from 2006-present.

3)Violation of the Open Meeting Law by Attorney Goldberg and others for having discussion about the May 4 Open Meeting Law Complaint during the Board’s May 7 meeting even though it was not on the agenda for that meeting.
The complaint states that there was significant discussion of the May 4 Open Meeting Law Complaint and the law surrounding that complaint by Attorney Lauren Goldberg and others during the Board’s May 7 Board meeting though this item was not on the agenda for discussion that day. Rather, the Open Meeting Law complaint was posted only on the agenda for the following meeting, May 10…. Despite this, Attorney Goldberg continued to advise the Board during that meeting about her thoughts about how the Open Meeting Law complaint should or should not be handled. Gray objected several times in the chat to the discussion of the Open Meeting Law Complaint during that meeting since it was not on the agenda, but Attorney Goldberg persisted in discussing it.

Discussion
The meeting opened with a tense back and forth between Shabazz and Carbo over whether public comment would be allowed and whether it had to be limited to those items that had been posted in the meeting agenda. In the end, no members of the public asked to speak.

Complaint #1: Failure to produce minutes.
Audette noted that government bodies have 30 days to produce minutes and since the minutes in question have been produced at this meeting, and the meeting is within the 30 day limit that the complaint is moot.

The draft minutes were distributed to members of the Board but were not made available to the public. 

Corbo clarified that the rule states that minutes must be produced within 30 days of the meeting they are covering or by the third meeting after which the meeting in question occurred. Today’s BOR meeting was the third3^rd meeting since the April 21 BOR meeting so it is within the requirement provided the minutes are approved at today’s meeting. However they were not. Carbo also noted that the law does not require the posting of such minutes on a public web site.

Complaint #2
Shabazz pointed out that there are substantial discrepancies between the video transcript and the written minutes. She called attention to the video record in which the vote on delegating the Board’s authority to the Town Clerk’s Office there was no motion made, there was no second, and Amber Martin —– who chaired the meeting —, did not vote, and all of this is in contradiction with the written minutes.

Audette conceded that there was a lot of information missing from the written minutes and that the Board would need to go back and fill out the minutes based on the video transcript.

Corbo stated that he had reviewed the minutes and judged them to be incomplete. He recommended that members review the draft, watch the recordings and come back to the next meeting with whatever changes/additions they want to make. He said that in his judgement the minutes are not ready to be approved. Carbo noted that while the complaint about inaccurate minutes might have merit, the remedy available to the Board is to correct the minutes and that will happen at the next meeting/.

The committee then voted 3-0-1 (Gardner abstaining) to continue their discussion of the minutes and Complaint #2 at their next meeting, scheduled for June 1.

Corbo noted that the law requires that the April 21 minutes be approved today, that that was not possible, and that the minutes from the next two meetings would need to be approved no later than June 7. He recommended that the BOR get everything wrapped up by then.

Complaint #3 Inadequate Announcement of. Business
Shabazz stated that she was unclear about the purpose of the announced Board meetings and in particular the April 21 meeting,.

Corbo responded that the April 21 meeting is not part of the OML complaint and that issues from that meeting were dealt with at a previous meeting and that the discussion must be limited to items raised in the May 14 complaint. 

Shabazz said that there had been a violation of OML by Attorney Goldberg and others for having a discussion about strategy prior to the meeting of the BOR on May 10 without it being on the agenda. She noted that there is a transcript of the recorded discussion between Goldberg and Audette and the facts of this discussion are part of the complaint.

Corbo argued that his reading of the complaint is that the pre-meeting discussion is not part of the complaint and that in any case, the conversation does not violate OML which applies to a quorum of the body but not to communication between individuals on the Board and individuals who may be employed to work in service of the Town. The only way that OML would apply would be if a quorum of the Board had participated, he said. He also noted that the pre-meeting is not mentioned in the written complaint by Gray. 

Shabazz asked about an email from Amber Martin to members of the Board about the petitions that was later retracted. She wanted to know whether this counts as an effort at deliberation outside of the bounds of OML.

Audette responded that Martin was just clarifying an agenda item in her email – not deliberating, and that such communication is permissible as long as no opinions from the members are expressed.

Corobo added that agenda distribution is excluded from OML as long as an opinion of a member is not expressed. Corbo then asserted that the discussion was conflating issues and that the complaint does not address emails that may have occurred prior to the April 21 meeting but is restricted to the May 7 meeting.

After a tense back and forth between Corbo and Shabazz about whether the pre-meeting caught on tape was part of the complaint or not, Corbo asserted that that clerk has the right to receive advice from Town Counsel. 

Wagner will chair the continuation of the meeting on June 1.