Over a three-year period from 2009 through 2011, as Oak Bluffs struggled through a period of budget turmoil and personnel upheaval, the Oak Bluffs board of selectmen cited an exception to the open meeting law to go into executive session 17 times, deliberating in secret on a range of town issues.
Until recently, the board kept nearly all of the records of those meetings under lock and key, though the law requires selectmen to review them at reasonable intervals, and make the minutes of the meetings public once the exception to the open meeting law no longer applies.
Executive session minutes that remain cloaked in secrecy make it nearly impossible for taxpayers to learn how selectmen voted on sensitive issues or understand potentially costly decision-making. It also makes it impossible to determine whether the exception cited to go into executive session meets legal criteria.
Having hired a new town administrator and town accountant, Oak Bluffs appears on a steadier financial course. Under increasing scrutiny, and with the guidance of new town administrator Bob Whritenour, the selectmen have been far more careful in recent months about citing specific exceptions for going into executive session.
Mr. Whritenour said the board has a copy of the attorney general’s guide to the open meeting law in hand when it goes into executive session.
“We go through, meticulously, the reasons for convening an executive session, put it on the agenda, and if there’s any question we check it out with counsel,” Mr. Whritenour said. “In every area we’re trying to instill more structure, really follow procedures. Everybody’s eager to know what the right procedure is and follow it.”
Kathy Burton, re-elected on April 12, is entering her second three-year term as selectmen. Elected chairman last year and re-elected Tuesday, she calls for an executive session only after she cites the specific exception to the open meeting law, and reads directly from the state statute.
“I can’t argue for right or wrong when I was not the chairman, and didn’t elect to go into executive session,” Mr. Burton said when asked about past executive sessions. “I really can’t comment on the things that have happened in the past.”
On February 17, The Times made a public records request under the Massachusetts Public records law for the minutes of 17 executive sessions in 2009, 2010, and 2011.
That time period included the sensitive contract negotiations that surrounded the departure of Michael Dutton, former town administrator, after a period of costly missteps.
At that time, the selectmen had released only one of those sessions, a minor dispute about land use. In response to The Times request, Ms. Burton met with Mr. Whritenour to review the minutes, and sought the advice of the town’s labor counsel, who advised them which what records should be released and which should be kept secret.
The board later met in executive session to discuss releasing the minutes. Immediately following the meeting, the board released the records of seven of the executive sessions. The accounts of nine other meetings were not released.
“Some of them are still pending,” Ms. Burton said in a phone interview. “The ones associated with matters that were just recently finished, we felt like we need to seek legal counsel and see if it was appropriate to release them.”
Is it over?
None of the meetings in which the board discussed the negotiated resignation of Mr. Dutton were among the records released.
Mr. Dutton resigned on July 8, 2011, after months of public and private criticism of his handling of town finances. The resignation was announced in a carefully worded statement from the board of selectmen, immediately after an executive session, and the 21-page severance agreement was released to the public.
The agreement includes a clause in which Mr. Dutton, as a condition of his severance agreement, agreed to take no further legal action against the town.
The agreement notes that the resignation is irrevocable, and Mr. Dutton’s severance agreement has been executed.
The public records law places the legal burden on the board of selectmen to demonstrate why records should be kept secret.
Asked what could be pending that would prevent the board from making the records public, Ms. Burton said she is seeking a legal opinion from the town’s labor counsel.
“I just want to be sure that the sensitive nature of the severance agreement and someone’s future employment is not affected,” Ms. Burton said. “I want to make sure things that were said are not going to alter the severance agreement.”
Of the records that were released, the minutes reflect several discussions that raise questions about how closely the town followed the provisions of the open meeting law, which was revised and strengthened in in July, 2010.
On May 8, 2009, the extent of the town’s impending financial crisis was becoming clear to town officials.
The minutes of an executive session on that evening, chaired by selectmen Greg Coogan, do not cite the exception to the open meeting law for that executive session, a requirement of the law.
The board met in secret to discuss proposing a buyout plan that encouraged town employees to retire early in exchange for a cash payment and other benefits. The employees would not be replaced, saving the money budgeted for salaries.
The Massachusetts attorney general’s open meeting guide cites an example similar to the Oak Bluffs board’s discussion, as an illustration of the purpose of executive sessions.
“The purpose does not apply if, for example, the public body is deciding whether to lay off a large number of employees because of budgetary constraints,” the guide states.
In hindsight the buyout discussion touched on critical issues that might have benefitted taxpayers if it was public.
The buyout plan involved spending taxpayer dollars. The decision not to replace retirees, town officials now acknowledge, contributed significantly to the budget crisis that prompted sharp cuts in services, and left the town strapped for cash for the foreseeable future.
An August 25, 2009, executive session also raises questions about the purpose cited for the executive session.
According to the minutes, Duncan Ross, who was chairman of the selectmen at the time, cited discussion of a potential lawsuit, and “collective bargaining,” as the exceptions to the open meeting law which allowed the executive session.
The minutes reflect that one of the town’s union employees was seeking arbitration to dispute his firing. There is no mention of a lawsuit.
The board also discussed the new floor plan for town hall, and a reorganization of the staff, including elimination of four full-time positions and two part-time positions. There is no reference to collective bargaining.
The attorney general lists ten purposes for executive sessions, but most fall into one of four exceptions to the open meeting requirements.
The four most common reasons are to discuss conduct, discipline, or dismissal of a public employee; to discuss strategy for negotiating collective bargaining agreements; to discuss strategy for litigation; or to discuss the purchase of land.
Less common exceptions to the open meeting law cover security plans, investigation of criminal conduct, discussion of trade secrets, compliance with certain grant requirements, job applicant interviews (in certain cases), or to meet with a mediator.
The law starts with the premise that government should be open and accessible. The exceptions are based on common sense, after weighing the public interest in knowing what elected leaders do against the public interest in the harm that could result if their actions are revealed.
For a hypothetical example, a board of selectmen might call an executive session to talk about the purchase of land for a new municipal building. Selectmen might discuss the purchase price, or the range of prices they are willing to negotiate. The public has an interest in the decision to spend taxpayer funds to purchase the land, but that interest is outweighed by the possibility of taxpayer funds being wasted if the owner of the land knows in advance what the town is willing to pay.
In order to call an executive session, the public agency must declare the reason for it, as outlined in the open meeting law. A roll call vote is required, and a majority is needed to go behind closed doors. Once in secret session, the law requires the public agency to keep accurate records of what happens, and record any votes by roll call. They cannot discuss any matters outside the scope of the reason declared for the executive session.
By law, the executive session minutes become public records once the reason for the executive session is no longer necessary. The public body is responsible for reviewing executive session minutes at reasonable intervals, and voting whether or not to release them.
In another hypothetical example, if a collective bargaining agreement is signed and goes into effect, there is no longer any reason for secrecy. The contract itself is a public document.
The public has a right to examine the terms of the agreement, as well as a right to know what their elected leaders discussed in the executive session, how they voted, and who favored or opposed certain parts of the contract.