Tisbury’s select board has been ordered to release executive session minutes. The order came Monday as part of a determination from the Division of Open Government, which is part of the Office of Attorney General Maura Healey. Specifically, the division ordered the release of two sets of executive session minutes focused on former Tisbury Police Officer Mark Santon.
The order comes in response to an Open Meeting Law (OML) complaint lodged by the Martha’s Vineyard Times in February. The division found the board violated OML three times in relation to the minutes. Those violations were failure to approve executive session minutes in a timely manner, failure to respond to a request for executive session minutes in a timely manner, and withholding executive session minutes without justification.
The minutes to be released are from executive sessions held May 24, 2017, and Dec. 15, 2017. A third set from Jan. 31, 2018, was initially withheld from The Times, but the board later authorized the release of those minutes. Santon was terminated from the Tisbury Police Department on Dec. 15, 2017, and the minutes of the executive session held that day likely pertain to that termination. The released Jan. 31, 2018, executive session minutes outline the select board’s approval of a separation agreement with Santon. That agreement, which was released to The Times along with the Jan. 31, 2018, minutes, converts Santon’s termination to a resignation, and prohibits him from ever being employed by the town of Tisbury again.
Santon’s departure from the Tisbury Police Department came as tarnish began to further spread on his record. Investigations found Santon allegedly exhibited a “blatant disregard for the truth” and that he allegedly left a female prisoner unattended in a cruiser, creating conditions where she nearly killed herself. Santon was also accused of filing a false police report that triggered an OUI charge against a man from New York, a charge that was eventually dismissed. Santon was further accused of being disobedient and lying to his chief.
In its determination, the division found that the board failed to muster a reason to justify withholding the May 24, 2017, and Dec. 15, 2017, executive session minutes, despite being given two opportunities to do so.
“Our office made two requests to the board, through counsel, asking that the board provide additional explanation regarding its assertion that the purposes for the May 24 and Dec. 15, 2017, executive sessions are ongoing such that the Open Meeting Law justifies continued nondisclosure,” the determination states. “We also reminded the board that it had the burden of justifying continued nondisclosure. We did not receive a substantive response to these requests. Therefore, we find that the board has not met its burden of justifying continued nondisclosure.”
The division also stated, “Minutes of executive session discussions regarding complaints and disciplinary action generally must be released to the public once the public body has taken all action it intends to take regarding the matter.”
The division gave the board 30 days to release the minutes to The Times. However, it was noted that the board may execute redactions pursuant to Public Records Law.
“We find that the board may no longer rely on the Open Meeting Law to withhold the minutes of its executive sessions held on May 24 and Dec. 15, 2017, and we order the board to release these minutes. If the board believes that portions of the executive session minutes may be withheld from the public under a claim of attorney-client privilege or an exemption to the Public Records Law, then it may redact such information, but it may not continue to withhold the minutes pursuant to the Open Meeting Law.”
The division noted that regular and executive session minutes “must be reviewed and approved in a timely manner,” and that timely manner is understood to mean within the next three meetings of a public body, such as a select board, or within 30 days, whichever is longer. Based on when the three meetings were held, the board didn’t review and approve the minutes for years.
“The board acknowledges that it failed to timely approve the three sets of minutes at issue here,” the determination states. “The board has committed to establishing a procedure for timely approving meeting minutes in the future.”
The division noted a public body “must reply to a request for executive session minutes within 10 days.” The determination points out that the board acknowledged it didn’t respond to The Times request in 10 days, but had asked for a time extension.
“The Open Meeting Law does not specifically provide for extensions of time to respond to requests for meeting minutes,” the determination states. Moreover, the division noted that a town lawyer requested additional time “two days past the 10-day deadline.”
Counter to arguments posed by The Times, the division didn’t find the three violations to be intentional. In explaining its decision, the division noted the board hasn’t been found in violation of OML regarding the approval or release of executive session minutes in the past. Also, the division found no evidence the board acted with “intent” to violate the law.
Updated to correct the date on a set of minutes.