Rifle minutes deemed insufficient

Attorney general’s office finds O.B. select board violated Open Meeting Law. 

The rifle behind the minutes found to be in violation. — Courtesy Oak Bluffs Police Dept.

Following a complaint filed by The Martha’s Vineyard Times, the state attorney general’s office found that five sets of the Oak Bluffs select board executive session minutes violated Massachusetts Open Meeting Law. 

Specifically, the office’s Division of Open Government determined the five sets lacked sufficient detail. The minutes all pertain to a lost and recovered Oak Bluffs Police Department rifle that resulted in a police sergeant resigning from the force. As The Times previously reported, the investigation into what happened to that rifle turned up a number of mysteries. “The investigation has established more questions than answers,” Paul L’Italien, a private investigator hired by the town, wrote in his report. Among those unanswered questions was how a rifle that disappeared from the Oak Bluffs Police Station suddenly appeared months later in a place that had been searched by police officers. Per his report, L’Italien was particularly mystified by Officer Michael Maliff, the person who was assigned the rifle but who couldn’t remember who assigned it to him, when he received it, how he transported it off-Island for training, and who he returned it to. 

The Times looked for further insight into the rifle investigation in executive session minutes. Those minutes represented meetings held by the select board to discuss the rifle and make decisions about the person the town ultimately blamed for its disappearance, former Sgt. Michael Marchand. Upon review of those minutes, which weren’t revelatory, The Times filed an Open Meeting Law (OML) complaint that argued the select board generated “skeletal descriptions” of its executive session meetings. Per the complaint, The Times requested a redo of the minutes to add greater detail. The Oak Bluffs select board declined. 

In a letter to The Times signed by chair Ryan Ruley, the board argued the minutes were sufficient as is, and refused to redraft them. The Times subsequently filed for further review from the attorney general’s Division of Open Government. In a July 28 determination, the division found five out of the six sets of minutes cited by The Times contained violations that the board nonetheless approved. 

“Following our review,” the determination letter states, “we find that the board violated the Open Meeting Law by approving insufficiently detailed minutes for its Nov. 24, 2021, Dec. 3, 2021, Dec.14, 2021, Dec. 28, 2021, and Jan. 11, 2022, executive session meetings. In reaching this determination, we reviewed the complaint, the board’s response to the complaint, and the complainant’s request for further review, including eight exhibits. We also reviewed the regular and executive session notices and minutes for the dates at issue, as well as video recordings of the Dec. 14, 2021, Dec. 28, 2021, Jan. 11, 2022, and Jan. 25, 2022, open session meetings.” 

The determination letter dissected the various executive session minutes, and provided explanations of the aspects of OML that apply to the complaint. In summation the letter states, 

“[T]he board’s Nov. 24, 2021, Dec. 3, 2021, Dec. 14, 2021, Dec. 28, 2021, and Jan. 11, 2022, executive session minutes fall short of the accuracy requirement of the Open Meeting Law. The minutes generally identified topics that were discussed, without any actual summary of the discussion. For instance, the board’s Nov. 24, 2021, minutes reference “a discussion” of possible punishments, and its Jan. 11, 2022, minutes state that it “discussed multiple options of discipline,” but neither recap what the board discussed or considered. Likewise, the Dec. 14, 2021, minutes simply declare the results of ongoing negotiations. Despite the length of the meeting, the minutes make no mention of any discussion between board members. The Open Meeting Law requires that meeting minutes include more than a statement that a public body discussed a specified topic; the law requires that the minutes summarize the discussion that was held … We therefore find that the board violated the Open Meeting Law by approving insufficiently detailed minutes of its Nov. 24, 2021, Dec. 3, 2021, Dec. 14, 2021, Dec. 28, 2021, and Jan. 11, 2022, executive sessions.”

The determination pointed to another potential fault in the minutes that wasn’t contemplated, at least specifically, in The Times complaint — failure to list documents and exhibits: “[T]he Open Meeting Law requires that the minutes of a public body’s meeting include a list of all documents and exhibits used by the public body during the meeting … The law does not define what it means for a document to be used at a meeting but, at a minimum, it is clear that where a document is physically present, verbally identified, and the contents are discussed by the members of a public body during an open meeting, it has been ‘used’ for purposes of the Open Meeting Law … As such, any documents that are physically present, verbally identified, and discussed during a meeting must be separately listed in the minutes. It is not enough that those documents are simply referenced in the body of the minutes, or that the minutes include a digital link to the documents … Here, we note that none of the minutes include a list of documents or exhibits used during the sessions. To the extent that any documents or exhibits were used, they must be listed in the corresponding meeting minutes.”

The rifle investigation generated a number of documents, including interview transcripts, memos, and L’Italien’s report and supplemental report. None of these are listed in the minutes. 

The determination also found some arguments made by The Times didn’t equate to OML violations. The Times argued all six sets of minutes were in violation. The division found the sixth, which reflects a Jan. 25 meeting, one that very lightly touched upon the rifle affair, did contain sufficient information. 

“The complaint further alleges that the minutes of the board’s Jan. 25, 2022, executive session were insufficiently detailed,” the determination states. “Specifically, the minutes indicate that ‘the board discussed’ the process and timeline for advertising the vacant police chief position without including further detail about those discussions. However, the minutes also include a list of actions the board initiated, such as assessing potential promotions. Therefore, although the Jan. 25, 2022, minutes include a simplistic statement that the board ‘discussed’ a topic, we find that the board also included enough additional detail to adequately capture the substance of the discussions … Accordingly, we find no violation of the Open Meeting Law with respect to the Jan. 25, 2022, minutes.” 

The division’s opinion of absent start times is basically in accord with the board’s position on the subject, per its letter and per comments made by town labor counsel Jack Collins during an open session meeting when the complaint was discussed.

The Times argued the minutes’ accuracy was flawed in two instances because a start time for the executive sessions wasn’t included. In a paragraph-length footnote, the division found The Times was off-target in its allegation. 

“The complaint further alleges that the executive session minutes are insufficiently detailed in that they do not include a start time,” the determination states. “A public body must ‘create and maintain accurate minutes of all meetings, including executive sessions, setting forth the date, time and place’ of the meeting. G.L. c. 30A, § 22(a). Here, where the board met in an open meeting before moving into executive session, the minutes indicate when the open session began, but do not further specify when the Board entered executive session. We have not construed the Open Meeting Law as requiring meeting minutes to separately list the start time of an executive session. Therefore, the board did not violate the Open Meeting Law by omitting this information from the minutes.” 

Finally, The Times argued the board intentionally violated OML. The division found otherwise. 

“An intentional violation is an ‘act or omission by a public body or a member thereof, in knowing violation of [the Open Meeting Law],’” the determination states. “An intentional violation may be found where the public body acted with deliberate ignorance of the law’s requirements or has previously been advised that certain conduct violates the Open Meeting Law … Here, we find no evidence that the board intentionally violated the Law or acted with deliberate ignorance of the Law’s requirements. Furthermore, our office has never previously found the board in violation of the Open Meeting Law. Therefore, we decline to find an intentional violation.” 

An order contained in the determination demanded the board’s “immediate and future compliance with the Open Meeting Law…” The order cautioned the board that “a determination by our office of a similar violation in the future may be considered evidence of intent to violate the Law.”

On Friday, Ruley declined comment on the determination, and referred inquiry to the town administrator’s office. In an email to The Times, Oak Bluffs town administrator Deborah Potter wrote, “Although the AGO ruling is still being reviewed, the select board, along with every town board, committee, and department, always intends to abide by the requirements of the OML to the best of their abilities, and will do so in this instance as well.”