Selectmen broke law, AG says

The conversation about candidates for the Historic District Commission took place in hushed tones among the four members present, and was recorded and broadcast by the local-access cable television station.

A resident who saw the discussion on television filed a complaint with Attorney General Martha Coakley’s office in October.

Jonathan Sclarsic, an assistant attorney general, sent the town a letter Monday stating that Coakley’s office believes the board violated a “bedrock principal of government transparency,’’ and has decided to refer the case to an administrative law judge for a hearing and potential fine.

The letter stated that the members knew they were going to vote on the Historic District Commission appointments on July 8, 2010, and they knew at the time of their discussion that the public meeting had not yet convened.

“Nonetheless, they came to an agreement on the slate of candidates that they would approve — in hushed voices and in an empty room — outside of public view,’’ the letter stated. “This is not a mere technical violation, but a violation of a bedrock principal of government transparency.’’

The letter also stated that although the board members may not have arrived that night with the intention of discussing candidates for appointment prior to the meeting, they should have been aware of their obligations under the law, which sets strict limits on what can be discussed outside of scheduled meetings.

“None of the member present stopped the discussion or chose to leave,’’ the letter states. “Thus, we conclude that the Board intentionally agreed on a slate of candidates for appointment, outside the view of the public, in violation’’ of the Open Meeting Law.

The selectmen were Thomas Fay, Susan Pope, Steve Correia, and John Bladon. Selectman Joseph Nolan had not yet arrived for the meeting.

The Board of Selectmen issued a statement Monday night stating that they plan to take time to review the letter.

“As we have stated before, the open-meeting law establishes a very high bar for all committees and Board members to do the public’s work in public,’’ the statement said. “That bar is set high on purpose, and appropriately so. We are committed to the open-meeting law and we are committed to make certain that this type of conduct will not occur again.’’

Resident Linda Segal sent a letter to the Board of Selectmen on Aug. 5 complaining about the apparent violation. The board released a statement on Aug. 17 stating that the comments made five minutes before the meeting should have occurred during the meeting. It also announced that it would reenact the conversation at a future meeting.

Segal was not satisfied, however, and filed a complaint with the attorney general’s office on Oct. 7.

“To me, in this particular case, it’s just so obviously not transparent government,’’ said Segal, who previously served on the Board of Selectmen. “I was rather floored and very distressed. These kinds of things truly bother me.’’

Segal said she is pleased that the state took the allegations seriously.

“The actions they decided to take are very strong and sends a serious message and I’m very grateful for that,’’ she said. “I’m satisfied with the outcome because it shows the state is serious about upholding the Open Meeting Law. It’s a basic tenet of how we govern ourselves.’’

The attorney general’s Division of Open Government reviewed the town’s local cable station’s broadcast of the meeting, which showed a majority of the board’s members gathering before the scheduled meeting time, and deliberating quietly on the appointment of potential candidates to the Historic District Commission.

In addition to reviewing the broadcast, the office also reviewed e-mails, meeting minutes, and conducted interviews with board members. In those interviews, several board members told the attorney general’s office that they were looking for new appointees with a fresh perspective because they believed the commission was trying to block the Town Center project, a major development mixing commercial, housing, and retail uses near downtown.

After the investigation, the AG’s office decided to refer the case for an administrative hearing and recommended a $1,000 fine. The office, which was granted authority over enforcing the Open Meeting Law last year, also found that the Otis Board of Selectmen had intentionally violated the law.

“When our office was granted authority of the Open Meeting Law last year, our goal was to promote greater transparency and uniform compliance with the law throughout state government,’’ Coakley said. “This process has allowed us to hold accountable the public bodies that have committed violations, and in instances where those violations were intentional, we have the proper tools to enforce strict penalties.’’

An administrative law judge will be appointed to conduct a hearing and determine whether the violations were intentional and whether a fine should be imposed. The judge would also set the amount of any fine. No hearing date has been set, said Brad Puffer, a spokesman for the attorney general’s office.

In the first year since taking over enforcement of the law, Coakley’s office has reviewed more than 170 complaints, issuing a variety of determinations and advisory opinions.

Only the Wayland and Otis complaints were considered to be intentional and referred for a hearing, Puffer said.

Jennifer Fenn Lefferts can be reached at jflefferts@yahoo.com.