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AG Issues Ruling On OML Complaints Against Selectmen, Public Works

The state attorney general found one complaint valid and two invalid.

Recent decisions published by the Attorney General's Office reveal that two complaints filed against Wayland's Board of Selectmen in 2012 did not reveal OML violations.

In an additional decision filed recently, the office found that a member of Wayland's Board of Public Works committed a violation outlined in a third 2012 complaint.

Draft Press Release Via Email

All three complaints were submitted by resident George Harris in 2012.

According to a letter published on the AG's website, Wayland's Board of Selectmen did not violate the OML by circulating via email the draft of a proposed press release, which was the substance of a complaint submitted by Harris on Jan. 30, 2012.

The AG's ruling states that the office generally recommends against a quorum communicating via email between meetings "to avoid even the appearance that members are deliberating outside an open meeting."

The ruling continues, however, to state that the "law excludes from the definition of 'deliberation' certain administrative tasks such as 'the distribution of a meeting agenda' and 'the distribution of reports or documents that may be discussed at a meeting."

The AG did recommend that "administrative tasks" be generally reserved for distributing meeting agendas, scheduling meetings and distributing documents drafted by non-members in order to avoid the perception of deliberation outside a public meeting.

Town Administrator's Review Via Email

In a similar ruling, the AG found that the board did not violate the OML regarding a second complaint filed by Harris on May 29, 2012.

Harris' complaint alleged that the board, "privately engaged in the deliberation of the town administrator's professional competence through the exchange of written communications prior to an open meeting held March 28, 2012."

The AG's response, however, found that this email exchange was again "administrative" and acceptable within the lines of the OML.

In this case, the AG responded that it was appropriate for "evaluations to be a permissible and necessary function for public bodies to conduct ahead of meetings, so long as discussion of the evaluations occurs during an open meeting."

Board of Public Works Email Deliberation

A complaint filed by Harris alleged that a board member, Mike Lowery, sent two emails "to a quorum of the Board expressing his opinions on matters of public business within the Board's jurisdiction."

The AG's office agreed that Lowery did violate the OML, unintentionally, but did "not find a violation by the Board as a whole because there is no evidence that any Board member responded substantively to Mr. Lowery's emails."

The Board of Public Works was ordered to reveal the contents of the two emails at its next meeting.

Editor's Note: The original version of this story contained errors related to a complaint against selectmen. The above has been corrected.

Michael Wegerbauer January 29, 2013 at 02:34 PM
As a follow up, Mike Lowery updated the BoPW regarding the AG's finding in the last BoPW meeting, apologized for the mistake and entered the items in question for the public record. Prior to that, he and the Board had worked with staff to set up a facility to capture all BoPW e-mail communications that go to a quorum of members to ensure the Board is in compliance.
Brooklyn Lowery January 29, 2013 at 05:50 PM
Thanks for the follow-up, Mike. The email exhibits are available at this link: http://www.wayland.ma.us/Pages/WaylandMA_BComm/DPW/MPL%20Emails%20of%20Dec%2015%202010%20and%20Jan%2024%202012.pdf

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