HUNTINGTON – The Gateway Regional School District is taking the first steps in rectifying an open meeting law violation.
After voting down a move to discuss the complaint in executive session, Committee Chair Gretchen Eliason and the rest of the board consulted with Attorney Russell Dupere, counsel for the district, about ways to mend a complicated situation.
The complaint, made in writing several months ago by Blandford resident Tony Van Werkhoven, addressed a vote taken by committee members during a meeting on June 26, 2013 for the chair and vice-chair seats.
“The meat of the complaint is that we elected chair and vice-chair by ballot, as we understood was the requirement of our policy in Chapter 71, Section 16A,” Eliason said.
Eliason posed the question to Dupere in front of a contingent of hilltown residents about whether there was a conflict between Chapter 71, Section 16A, state law and the committee’s actions, along with advice on it’s next step.
“My opinion is that there is not a conflict between the two statutes, that you can read them to make sense together,” Dupere said. “The open meeting law specifically says that you cannot vote, in open or executive session, by secret ballot.”
Dupere added that the other section of the law states that a board must vote for chair and vice-chair by ballot, just not by a secret ballot.
“What other committees have done… was by ballot, writing down who they wanted for chair, give it to whoever was presiding over the meeting, and that person would read aloud how each person voted,” he said, adding that the practice doesn’t occur much anymore. “At this point, most committees vote, in open, about who they want for chair and vice-chair.”
Dupere then suggested that, should the committee choose to continue voting by ballot, to do it in the form of the presiding official reading the ballot off after the votes have been cast.
When asked by committee member Shirley Winer whether or not the committee used a “secret ballot” to conduct the vote, Dupere merely replied “that’s my understanding.”
“The votes were read, but they just weren’t attributed to a person,” Winer said.
Conversation then transitioned toward mending the error, which Dupere outlined for the committee.
“You have 30 days to file a complaint,” he said. “I read the complaint, I understand why (VanWerkhoven) feels that they’re within the 30 days, because that’s when they found out about it.”
“The reality is, if you read your minutes and what was online, it didn’t indicate who voted which way. That alone is an indication that you didn’t do it correctly.”
Dupere added that, while the complaint itself wasn’t timely, it did have merit, but righting the wrong in a traditional manner may prove difficult.
“The usual remedy, under the ‘Elks decision’, would be to redo that portion of the meeting, revote, and do it in the open,” he said. “The difficulty here is that you don’t have the same members, which is why you’re supposed to do it within the 30 days. The second step would normally be that you indicate in the future we’re going to vote in the open and not by secret ballot.”
The Elks decision, or the Benevolent & Protective Order of Elks, Lodge 65 versus the Planning Board of Lawrence, was a 1988 case in Essex County in which Elks Lodge 65 alleged that “certain private, individual consultations between a city council’s president and other members of the council had violated the Open Meeting Law,” and “were not entitled to an order requiring the council to comply in the future with the Open Meeting Law’s provisions, where any violations had been cured by subsequent council meetings, held in compliance with statutory requirements, before the action was commenced.”
The Lawrence City Council argued that, because the public meetings were in compliance with the open meeting law, the judge could not invalidate actions taken at those meetings, and argued that because the Elks filed their complaint more than 21 days after the actions they sought to invalidate, their complaint was barred by Chapter 39, Section 23B, thus the Superior Court judge allowed the city council’s motion to dismiss on the ground that the complaint was untimely.
“The first step (I woud recommend) is difficult now because one member has passed away, and you have new members on the committee since then,” Dupere said. “If this was a timely complaint, I think the Attorney General’s office would make you redo that portion of the meeting.”
Committee member Ruth Kennedy of Russell had exhaustively researched the situation and shared her findings with the assemblage.
“Not only is the complaint not timely, but the open meeting law complaint form online, which he (VanWerkhoven) used, says it must first be filed with the public body that is alleged to have committed the violation prior to filing a complaint with the Attorney General,” she said. “This was filed with the Attorney General, cc’d to us.”
Kennedy added that an additional 30-day timeframe with which to file a complaint kicks in after “they’re reasonably aware of it going on.”
“It also says that the complaint must set forth the circumstances which constitute the alleged violation, giving the public body time to remedy the alleged violation,” Kennedy said. “On his complaint, it clearly states that he has to file with the body first.”
She said the complaint should be thrown out as it was “not filed on time” and “it was not filed properly with us first to give us the time to address this.”
“In reserving the right to do it in some kind of ballot vote, whether we write our names on them or have a teller, we want to leave those options open,” said Eliason. “There is a reason to do it by ballot vote, and that is so that you vote your conscience, and not necessarily how your neighbor is voting.”
The committee ended the evening by voting to send letters as drafted by Attorney Dupere to the Attorney General and Mr. VanWerkhoven to remedy the violation.
“The law is important, but also it’s the right thing to do,” Dupere said to the committee and the crowd. “The bottom line is, the public should have the right to know how people are voting. If everything else is public, I don’t see why that wouldn’t be public.”
