Police minutes found to be insufficient

Oak Bluffs select board violated Open Meeting Law 14 times, state finds.

2
The attorney general's office found that the Oak Bluffs select board violated Open Meeting Law 14 times in relation to executive session minutes. — Rich Saltzberg

The Oak Bluffs select board violated Open Meeting Law 14 times, according to Attorney General Maura Healey’s Division of Open Government. In an Oct. 27 determination, the division found that the board approved four sets of minutes that were insufficiently detailed, and also that it failed to review 10 sets of minutes in a timely manner. The determination comes following an Open Meeting Law complaint filed by The Times in June. The determination marks the second set of Open Meeting Law violations by the board this year. The select board was previously found in violation of Open Meeting Law in July, when the division deemed five out of six executive session minutes about a missing police department rifle insufficiently detailed. The board was ordered to amend the minutes, and did so

Executive sessions are secret proceedings. Collective bargaining, litigation, and human resource matters are among the 10 lawful purposes for executive sessions in Massachusetts. Often the only window into what happened in a given executive session is the minutes a government body, like a select board, generates and authorizes for release. When minutes are released, the public is sometimes able to learn about events that haven’t been made public before. This appeared to be the case when the Oak Bluffs select board released June 30, 2015, executive session minutes to The Times earlier this year. Those minutes revealed a now former officer was unable to account for a pistol. Executive session minutes sometimes don’t get released, or aren’t released for a long time. Open Meeting Law stipulates that minutes must be released once disclosure of them will not defeat the purpose of the executive session. Some of the executive session minutes subject to the division’s determination were 12 to 13 years old. The division found that Oak Bluffs failed to periodically review for public release minutes spanning eight years: June 8, 2010; August 14, 2012; August 28, 2012; Sept. 11, 2012; March 11, 2014; June 9, 2015; June 30, 2015; July 14, 2015; June 13, 2017; and Nov. 9, 2018. The board released the majority of those minutes on March 22, 2022, following a Times request. The division found evidence the board prepared to review two sets of minutes at points in the past, but unearthed nothing that proved those minutes had actually been reviewed.

“In its response to the complaint,” the division wrote, “the board could not ascertain if or when the minutes were previously reviewed or released. After a cursory review of the board’s notices and minutes for meetings held between June 2010 and December 2019, we could only determine that the board ‘accept[ed]’ the June 8, 2010, minutes on June 22, 2010, and posted notice for a review of the Nov. 9, 2018, minutes, to occur on Sept. 24, 2019. However, we are unable to determine if the board released either set of minutes, and we find no evidence that the board reviewed any of the eight other sets of minutes identified in the complaint. The lack of indication in subsequent meeting minutes that executive session minutes had been reviewed, in combination with the board’s inability to determine if the minutes were reviewed or released, leads us to conclude that the board did not conduct any such reviews … Therefore, we find that the board violated the Open Meeting Law by failing to review executive session minutes at reasonable intervals to determine if continued nondisclosure was warranted.”

In its complaint, The Times argued all 10 executive session minutes released by the board were insufficiently detailed. The division didn’t agree. It found four of the 10 sets of minutes were insufficient, and that the other six sets were not. Per the determination, minutes “should contain enough detail and accuracy so that a member of the public who did not attend the meeting could read the minutes and have a clear understanding of what occurred.” Of the four sets of minutes found to not meet that standard, two covered notable points in Oak Bluffs Police Department history — the attempted merger with the Tisbury Police Department, and the internal investigation of Det. James Morse. 

Tisbury’s and Oak Bluffs’ select board met jointly in Oak Bluffs on June 8, 2010, to discuss unifying their police departments. As The Times reported in 2010 and 2011, reports claimed the proposed merger could yield economic benefits. However, police officers interviewed by The Times didn’t embrace the concept. The division was able to learn greater detail about what happened at the meeting by reviewing executive session minutes generated by the Tisbury select board. Those minutes were released part and parcel with about 50 other sets of executive session minutes, following a request made by The Times in 2021

“On June 8, 2010, the board convened in a joint executive session with the Tisbury select board ‘for the purpose of discussing negotiations,’” the division wrote. “The board and the Tisbury select board each created separate minutes of this same executive session. In the approximately 40-minute executive session, the bodies read and discussed a report detailing how the Oak Bluffs and Tisbury Police Departments could be combined. The board’s minutes for this executive session fall short of the accuracy requirement of the Open Meeting Law. The minutes list topics that were discussed or the resulting decision without any actual summary of the discussion. For example, the board’s minutes capture the boards’ discussion of a joint press release as follows: ‘The press release will be prepared by the two town administrators.’ The Tisbury select board’s minutes detail that the two boards debated who would prepare the statement, the contents of the press release, and whether the report would be made public alongside the press release. 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.”

The division noted how scant March 11, 2014, minutes were (one sentence), the absence of substantive material in June 13, 2017, minutes, and the insufficiency of Nov. 9, 2018, minutes (two sentences). 

“The minutes for the board’s March 11, 2014, June 13, 2017, and Nov. 9, 2018, executive sessions, on their face, fall short of the accuracy requirement of the Open Meeting Law,” the division wrote. “Specifically, the substantive portion of the board’s March 11, 2014, minutes, for an executive session that lasted about 39 minutes, states in its entirety: ‘Town Administrator Whritenour said that it was a good agreement with the Police Department.’ Despite the length of the meeting, the minutes make no mention of any discussion between board members. 

The division also found Nov. 9, 2018, wanting in detail. These minutes involved former Oak Bluffs Police Det. James Morse. As The Times previously reported, Morse, who left the department via a mutual separation agreement, was under investigation in part because a package of cocaine had been delivered to a property of his in Falmouth, specifically to a tenant of his. Morse wasn’t implicated in the drug delivery. It was later found Morse had been using the FBI’s Criminal Justice Information System (CJIS) to research that tenant, and following an audit, allegedly a lot of other people too. 

The division noted the minutes involving Morse state in their entirety, “The recommendation was to give Detective Morse what he is entitled to, namely his comp time and his vacation time. It is legally required that he be given both.” 

The division faulted the 2017 and 2018 minutes for identifying a topic the board “discussed or considered without summarizing the discussion held.”

The division disagreed with an accuracy assertion made in The Times complaint that Open Meeting Law demands start and adjournment times for executive session minutes. 

“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 …’ 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 provide adjournment times, nor to provide start and end times for individual discussion topics, including executive sessions.”

The division also reminded the board to cite documents used in its meetings, and ordered the board to amend the minutes “to the best of its ability, using any means available to it, including notes and other records.” However, the division acknowledged that given the age of the minutes, this may be challenging.

“Although we order the board to amend the executive session minutes to the best of its ability,” the determination states, “we acknowledge the potential infeasibility of accurately capturing the substance of the discussions that occurred during those meetings, and we remind the board that any amendments to the minutes must accurately capture what was actually discussed during the meetings.”

The division gave the select board 90 days to amend the minutes. 

The division declined to find the violations of Open Meeting Law intentional. This was in part because these violations predate the rifle minutes violations. 

“Although that determination also related to the adequacy of executive session minutes, the minutes identified in this complaint predate it by several years, and were released before the July 28, 2022, determination was issued,” the determination states. “We find no other evidence that the board intentionally violated the law or acted with deliberate ignorance of the law’s requirements. Therefore, we decline to find an intentional violation.” 

Select board chair Ryan Ruley didn’t immediately respond to a voice message seeking comment. 

2 COMMENTS

  1. Would be nice to hear what Gail Barmakian has to say since she was a board member during all of the meetings in question.

  2. “Police” and “insufficient” both in the same headline?
    Who would ever have guessed that?
    Great work, MV Times.
    Expect a lot of parking tickets now from the inevitable retaliation.

Comments are closed.