WESTFIELD – A resident, for the second time this year, has filed a complaint alleging that a City Council member has violated the state’s Open Meeting Law by sending email to other council members suggesting specific action to achieve a desired goal.
Under state law the members of a municipal board can exchange factual information, but cannot express an opinion or attempt to persuade other members of that board to adopt a specific action.
Stephen C. Dondley of 10 Kane Brothers Circle has filed a complaint with City Clerk Karen Fanion that Councilor David A. Flaherty violated the law when he responded to an email communication sent by City Solicitor Susan Phillips regarding a vote taken by the City Council on Dec. 5, 2013.
The council voted to cut $1.7 million from the levy as it was setting the 2014 fiscal year tax rate. The council had approved several other motions, including the use of $1.25 million from stabilization to balance the city’s budget which was $940,000 in the red and to use the remaining funds to buffer residents and businesses from a higher tax increase.
The council also voted to adopt a residential shift factor of 1.63 which evenly divided the tax increase between residential property owner and commercial, industrial and personal property (CIP) owners.
Those actions would have resulted in a 3.4 percent increase in property tax.
The council then took the vote to reduce the tax levy, and in effect the 2014 budget, by $1.7 million which resulted in a tax increase for all property classes of less than 1 percent.
Phillips and City Auditor Deborah Strycharz requested the state Department of Revenue to review the council action and make a determination of whether the council’s vote to cut the levy, after approving the budget in June, was legal. The DOR ruled that the council acted beyond its authority, which it had in June when approving the budget, but not in December when setting the tax rate.
Flaherty, in his response to Phillips and also sent to all other council members, argued that the intent of the council was to cut the levy and determine a specific line item for that cut, most likely insurance, which could be reinstated after the DOR certified the city’s free cash account, estimated at $2.8 million, making the budget whole again.
Dondley, in his complaint, said that Flaherty sought “strategies the council might follow to cut the budget in a way that complies with the DOR requirements for the budget approval process.”
Dondley also noted that the Attorney General determined that Flaherty had violated the Open Meeting Law earlier this year and charged “that this email constitutes a violation of the Open Meeting Law and is therefore an intentional and willful violation of the law.”
Dondley, who by law is required to lodge his complaint with the board from which the alleged violation came before filing it with the Attorney General, requested the City Council to establish a committee with the authority to make public reprimands to members violating the law and to fine offenders; to allow the committee to review all communication between quorums of City Councilors; to ensure that all council members receiving Open Meeting Law training; and to establish procedures for releasing communications found to violate the law.
Flaherty said that there were a number of email communications exchanged between councilors following the Dec. 5 meeting and subsequent communication from the Law Department.
“Several emails related to the tax shift, levy, and stabilization
votes may be interpreted as non-compliant, not just the one cherry-picked by Mr. Dondley. None of them had any intent of hiding anything from the public,” Flaherty said Tuesday, in an email to the Westfield News.
“My email was in response to an unsolicited opinion of the City Solicitor (that Dondley did not include in his complaint) and included facts and my recollections of what happened during a prior meeting. I also asked an important clarifying question to the City Solicitor.” “Looking back on this specific email, it probably should have been sent via ‘Reply to Solicitor’ instead of ‘Reply all’,” Flaherty said.
“I have taken steps to ensure that the public has access to the full message stream, and further to ensure that all councilors have access to training to help avoid Open Meeting Law and Public Records Laws issues in the future.” Flaherty said in the statement. “I’ve also asked for training for councilors related to a variety of legal and procedural topics so that we can hopefully avoid some of the chaos in the future.”
