Board of Registrars Dismisses Open Meeting Law Violations Complaints

The Amherst Board of Registrars (BOR) met on June 1, 2021 to continue a hearing on three Open Meeting Law (OML) complaints filed against the BOR.  The initial hearing was held on May 24 to hear complaints filed by Attorney Carol Gray, one of the lead petitioners,  in an effort to force a referendum on borrowing for the Jones Library renovation and expansion.

Board member Jamie Wagner, who had been appointed temporary Chair of the Board for the hearing on May 24, continued in that capacity.

The Complaint
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.
   
2. Failure to create and approve minutes in a timely manner.
   
3. Violation of the Open Meeting Law by Town 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 full complaint can be read here.

Town Attorney Gregg Corbo and Town Clerk Sue Audette  appeared to dismiss Complaints 1 and 3 at the May 24 meeting but no formal vote of the Board was taken at that time. Corbo 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.

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 (AG) 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.

The bulk of the June 1 hearing was devoted to producing a remedy to Complaint 2 by correcting minutes from the meetings in question and voting to accept them.  At the May 24 meeting, Corbo offered his opinion that the minutes in question were inadequate, and Board Member Demetria Shabazz observed that the written minutes were frequently in conflict with the video transcript. At the June 1 meeting there was considerable discussion about how much detail is required in minutes. Shabazz offered several substantial corrections to the written minutes based on her viewing of the video recording of those meetings.  Many of her suggestions were contested by Board member Jackie Gardner who argued that the detail in Shabazz’s corrections was unnecessary.  Gardner also objected to the inclusion of opinions offered by speakers that were critical of the Town or the Board.  But in the end, all but one of Shabazz’s suggested corrections to the minutes were accepted unanimously by the Board.  The corrected minutes will be filed with the Town Clerk’s office but will apparently not be available on the Town website.   The Indy has filed a public records request for these minutes and will provide links to them when they become available. 

Dismissal Of The Complaints
The board formally voted 3-0-1 to dismiss all three OML complaints (Shabazz abstaining) and 3-1 (Shabazz dissenting) to submit a letter composed in advance of this meeting by Corbo, to the AG, stating the BOR’s reasons for dismissal.  That letter has not yet been made available to the complainant or to the public but a draft was briefly displayed on the meeting’s Zoom screen.  A brief summary of the reasons for dismissal follows:

1. In this matter, minutes for all three meetings raised in the Complaint were created within the next three meetings of the Board, as required by the regulations.  In fact, draft minutes were presented to the Board during its May 24, 2021 meeting, the third meeting after the April 21, 2021 meeting.  The fact that the draft minutes were not posted on the Town’s website is irrelevant, as the Open Meeting Law does not require such a posting. (Although the Open Meeting Law requires that draft minutes be maintained as public records and that they be made available upon request, G.L. c. 30A, § 22(c), the complainant does not allege that she requested copies of the draft minutes or that she was denied access to them). Therefore, as all three sets of minutes were created in a timely manner, there was no violation of the Open Meeting Law.
   
2.  Although the April 21, 2021 meeting minutes were not approved within the next three meetings or the thirty-day timeframe as set forth in the regulations, the Board submits that there is good cause for not doing so.  Draft minutes from the three meetings were provided to each of the Board members by electronic mail on May 20, 2021, for discussion and vote during the May 24, 2021 meeting.  During the meeting, one of the members of the Board identified a discrepancy between what was in the draft minutes and what she observed on a video recording of the meeting.  As that discrepancy could not be resolved during the meeting, the Board members agreed to postpone further discussion of the matter until its June 1, 2021 meeting.  In addition to requiring that meeting minutes be approved in a timely manner, the Open Meeting Law requires that they be accurate.  Because the minutes stand as the official record of the Board’s proceedings, the public’s interest in the accuracy of the minutes is paramount. 
   
   Therefore, in this matter, the Board chose to take a short amount of additional time to ensure that the minutes accurately reflected what was discussed at the meeting.  As this is a matter of significant public concern in the Town of Amherst and is the subject of pending litigation, the Board’s decision in this regard was reasonable and should be considered good cause for the slight delay.  Therefore, there was no violation of the Open Meeting Law with respect to the timeliness of the Board’s approval of minutes. In any event, the minutes have now been approved, rendering the complaint moot.
   
3. Finally, the complainant avers that the Board violated the Open Meeting Law when the Town Attorney discussed the complainant’s first Open Meeting Law complaint when it was not posted on the notice for the May 7 meeting, but was posted for discussion at the May 10 meeting.^[1]  For the reasons stated below, such discussion did not violate the Open Meeting Law because the discussion of the complaint was within the context of, and flowed naturally from, the topic listed on the meeting notice for that meeting.  Moreover, the discussion could not have been reasonably anticipated more than forty-eight hours prior to the meeting….
   
   In any event, it is well settled that violations of the Open Meeting Law may be cured by independent deliberative action taken at a subsequent meeting.  Pearson v. Board of Selectmen of Longmeadow, 49 Mass. App. Ct. 119, 125 (2000).  It is equally well-settled that the goal of the Open Meeting Law is to advance democracy by providing broad access to governmental decision-making and eliminating the secrecy surrounding the deliberations and decisions on which public policy is based.  Ghiglione v. School Committee of Southbridge, 376 Mass. 70, 72 (1978).  In recognition of this principle, the Appeals Court has held that subsequent discussion of the subject matter of an improperly posted meeting at a subsequent open meeting, and the record thereof, was sufficient to cure any purported defects in the notice for the meeting of the public body at which the matter was originally discussed.  Allen v. Board of Selectmen of Belmont, 58 Mass. App. Ct. 715 (2003). 
   
   In this regard, the May 4, 2021 Open Meeting Law complaint was subsequently discussed at a duly-noticed public meeting held on May 10, 2021.  That meeting lasted more than three hours and featured opportunities for comment by members of the public, members of the Board, and the Town Attorney.  The minutes of both the May 7 and May 10 meetings have been approved and are publically available.  The recordings of the meetings are also available for public viewing on the Town’s youtube page, at:  https://www.youtube.com/watch?v=63K4T9HAvb0 (May 7, 2021); https://www.youtube.com/watch?v=BZTUK8UhZys (May 10, 2021).
   
   Therefore, given the wide availability of public access to the Board’s discussion of the May 4, 2021 Open Meeting Law complaint, there was no violation of the Open Meeting Law with respect to the Board’s discussion of that complaint during its May 7, 2021 meeting.

The Indy has filed a public records request for the BOR’s statements of dismissal filed with the Attorney General and will post the full statements when they become available.

Public Comment
Eight residents spoke during public comment – all offering some entreaty of the Board to remedy what they saw as unjustified disqualification of the signatures of registered voters in the recent voter veto petition.

Prior to public comment, Shabazz moved that Amherst attorney and constitutional scholar John Bonifaz be allowed to address the Board outside of the framework of and prior to public comment.  That motion failed for  lack of a second.  Bonifaz then addressed the Board during public comment.

John Bonifaz
Bonifaz, recounted the contents of a letter he sent to the Board, Council and Town Manager the previous morning. That letter is also posted in The Indy. 

He urged the BOR to enter into a consent decree with the plaintiff that would be approved by the Court, that would re-certify the wrongly disqualified petition signatures and establish a date for the referendum specified by the voter veto petition. He noted that in the case now before Supreme Judicial Court (SJC), the plaintiffs have submitted overwhelming evidence that their rights have been violated. “ The right of signature is constitutionally as fundamental as the right to vote,” he said. He urged the BOR to read the complaint, examine the evidence, and to correct their mistakes.  Bonifaz noted that the Town Manager has responded to this letter saying he and only he has the authority to respond to these allegations.   Bonifaz asserted that to prevent the  Board from engaging in such discussions is to prevent the  Board from doing its duty.  And they are the ones who are named in the suit he noted.   He warned that the Board that their personal and collective integrity was on the line.

Following Bonifaz’s public comment, Granger asked for discussion. Audette warned that discussion was not permitted because the matter was under litigation and in any case, the BOR would need the Town Manager’s permission to discuss anything about the case. Attorney Corbo advised the BOR not to discuss Bonifaz’s comments, offering his opinion that Bonifaz’s comments could not be discussed because they were not on the agenda, and hence discussing them would be a violation of OML and that in any case, according to the Town Charter, the issues raised fall under the sole discretion of the Town Manager.  

Shabazz stated that she had tried to place Bonifaz’s comments on the agenda and was told that she could not.

Sarah Mckee
McKee introduced herself as an Amherst resident and long-time member of the D.C.bar.  She pointed out that the Town had entered dangerous territory by disenfranchising voters and telling them that they have no recourse unless they sue.  She said “this is a very disturbing precedent.”

Vincent O’Connor
O’Connor cited 42 US Code Sec 1983 and 18 US Code Sec 242 on the deprivation of constitutional rights, noting that such violations can entail serious penalties. He warned that town officials (including the individual members of the BOR) have significant liability under federal law.  He added that if the alleged denial of rights is found to be malicious, then the liability for court expenses may be personal and may not be paid by the town. 

Peggy Matthews-Nilsen 
Matthews-Nilsen suggested that the voter suppression that we see in other parts of the country and now here, is at odds with Amherst’s reputation as a progressive community.  She pointed out that the Town Charter promised better representation and more democracy.  She spoke of the aggressive and careless disqualification of 222 signatures from the voter veto petition. She pointed out that the Town Clerk acknowledged that “mistakes were made”  but nonetheless forced voters to go to court to seek redress.  She said, ”Why is less democracy acceptable in Amherst? Why would the Town resist this project being brought to a town-wide vote if they are confident that going forward with the project is the will of Amherst voters? And, why is voter suppression in any form, tolerated in our town?”

Sean Burke
Burke, a 37 year resident of Amherst, said that he had collected signatures from his neighbors.  He said ” My wife was disqualified as were some of my neighbors. I wasn’t. I question the review of these signatures. “

Adrienne Terrizzi
Terrizzi, a 50 year plus Amherst resident and long-time member of League of Women Voters Amherst said that she was speaking solely as an individual today.  She said “Something is wrong and must be corrected.  Please find a way to make this right.” She emphasized she has not been involved with this petition in any way and Is here today to state that citizens’ rights must be protected and that voters must have redress.”

Carol Gray
Gray is the attorney who filed the complaint and is one of the lead petitioners for the voter veto effort and is also on the legal team for the plaintiffs in the suit now before the SJC.  She encouraged people to send their written comments to the Town Clerk so that they can be incorporated into the minutes.   She spoke to her OML complaint of May 14 noting that the minutes of the May 24 meeting are not yet publicly available and she requested that minutes be posted publicly along with the BOR’s agenda.  She noted that the minutes for the BOR April 21 meeting were not posted within the required 30 days and that Corbo has acknowledged this fact.  “Hence, here is a violation of the OML” she said.   The remedy Gray seeks is to create accurate minutes, to require the BOR to undergo OML training,  and to caution Town Attorney Goldberg about OML violations.  She pointed out that there is an archive for minutes of Boards and Committees and the archive for the BOR is empty.  Only nine sets of BOR minutes have been taken and approved since 2006.  She asked that the OML training be done by an independent party and not KP law, the Town’s Attorney. 

Rita Burke
Burke said ,”This is not personal and this is not about the library. But shame on Attorney Corbo for repeatedly trying to make it about that.  This is about voter rights.  I remain baffled that I am being told that I do not know how to sign my name or after 37 years of voting in this town. I am now ineligible to participate (in this petition process).  There is enough confusion here and clearly mistakes were made – voters should be able to expect that the Board and the Clerk’s Office are committed to getting this right”. 

Executive Session
Following public comment Shabazz moved that the BOR schedule an executive session to discuss the litigation, noting that the Board is the defendant in this suit but has yet to have any discussion amongst themselves of the pending litigation.  After some discussion about whether this was permissible, Shabazz repeated her motion citing Chapter 30A Sec 21 of Mass General Laws requesting an executive session of the Board to discuss litigation. The Board voted 2-1-1 (Gardner no,  Audette abstained) to schedule such a meeting.

Adopting The Letter Of Dismissal
Shabazz then moved that the BOR not submit KP law’s response to the OML, drafted on behalf of the BOR, until the BOR can meet in executive session to discuss the letter and the litigation. Corbo informed the BOR that their response must be received by the AG by June 4.  Shabazz said that she still objects to submitting KP law’s interpretation without having a chance to discuss it as a Board. Shabazz contended that the letter to the AG needed to acknowledge that a violation of OML had indeed taken place as Corbo had indicated at the May 24 meeting.  Corbo, Audette, and Gardner argued that since the BOR took steps to effectively remedy the violation  there was no need to acknowledge that a violation had taken place. The Board voted 3-1 to accept and submit Corbo’s letter to the AG (Shabazz dissenting).