The Assistant District Attorney for Middlesex County has issued guidance to the town’s political leadership, declaring that an informal, private gathering of some of the Town’s top elected officials was bound by the State’s open meeting law and asking that the group submit a report to serve as a record of its activities. The letter, dated August 24, was sent from Assistant DA Robert Bender and addressed to John Giorgio, an attorney with Kopelman and Paige, which represents the town. A copy of it was provided to BloggingBelmont.
In July, Giorgio had written a response on behalf of the Town to an official inquiry by the Assistant DA into the officers’ group following a voter complaint that it violated the state’s Open Meeting Law. In that letter, he argued that the group was informal and had no official charge and, thus, did not have to adhere by the OML provisions, according to a report by the Belmont Citizen Herald. “The informal nature of the group suggests that it is not a governmental body of the Town, or any of the Town’s governmental bodies,” Girogio wrote in the 5 page memo. “The Town therefore submits that the citizens group is not a governmental body, and need not comply with the requirements of the Open Meeting Law.” All the same, Giorgio wrote at the time, the group would comply with the provisions of the Open Meeting Law going forward.
In his response, Assistant DA Bender squarely rejected that argument, noting that the group constituted its own government body, whether official or not: “This office recognizes that this group was not established pursuant to any act or special act of the General Court, or town by-law, but each of it’s members is a town official, either elected or appointed…Meeting as a group, these 6 officials constitute an ad hoc committee, established for a specific purpose, and perhaps continuing to meet only until such purpose is accomplished.”
Furthermore, Bender writes “The purpose of this group, as you have reported, is town government: ‘improved communications’ among the four governmental bodies on which these 6 officials serve, and a study of town business within the purview of these four bodies, i.e. the organizational chart, procedures to assure governmentt accountability, and possibly for consolidation of certain ‘school and town functions.’ ”
“In the opinion of this office,” Bender wrote, “the absence of any formal vote by the four bodies does not foreclose the conclusion that this ad hoc committee is a government body and must meet only upon public notice, must maintain minutes of its meetings, and must conduct its meetings in open session.
“The absence of any formal vote by the four bodies does not foreclose the conclusion that this ad hoc committee is a government body and must meet only upon public notice, must maintain minutes of its meetings, and must conduct its meetings in open session.”
The Assistant DA also took a dim view of suggestions that the officers’ group’s membership was based on familiarity with Town Government and knowledge of “the issues,” rather than their elected (or appointed) positions. “It is not surprising that you have described these 6 officials in particular as citizens with a demonstrated ‘commitment to and familiarity with town government’ with ‘a broad based and diverse range of experience and viewpoints.’ All towns would hope that the chairs and vice chairs of its key government bodies would be such people,” he wrote.
However, Bender took a sympathetic view of the town’s efforts to put its house back in order and comply with OML following the inquiry – seemingly ruling out any larger or continuing investigation of whether there was an intentional effort to evade OML. (NOTE: I received this info late in the day and have not yet had time to speak with Middlesex DA). “That the committee has agreed to do so does put aside any suggestion that the meetings of these 6 officials were conducted with any intent to avoid public review,” Bender wrote.
To set the record straight, Bender suggested the officers group submit a report to Town Meeting detailing its activities. The Assistant DA also requested that a copy of that report be forwarded to his office.