Select Board Responds To Open Meeting Law Complaint

ORLEANS – The select board will submit a response to an Open Meeting Law complaint that was filed against it last month with the state Attorney General’s Office.

 The board voted 3-0 Dec. 17 to allow the board’s chair, Kevin Galligan, to work with Town Manager Kim Newman and the town’s special legal counsel in preparing a response to the complaint, which concerns public discussion about the town’s free cash certification for the current fiscal year. Board members Mark Mathison and Michael Herman were not in attendance at the meeting.

Galligan in an email last week said the board “responded immediately” to the complaint, which he said was received on Dec. 15. Town Clerk Kelly Darling said Monday that the board has until Jan. 8 to officially file its response to the complaint with the Attorney General’s office.

The complaint from Jamaica Plain resident Samira Payton dated Dec. 9 concerns the town’s most recent $2.16 million free cash certification, which was completed Nov. 10. Specifically, the complaint cites what Payton calls “a major FY26 free cash shortfall” that was discussed during the time dedicated to the town manager’s report at the end of the board’s Nov. 19 meeting.

“No notice was provided to alert the public that millions of dollars in financial discrepancies, free cash certification issues, and fiscal concerns would be discussed,” the complaint reads.

The public discussion stemmed from a memo to the select board dated Nov. 14 from the town’s finance director, Darrin Tangeman, that Newman said was designed to provide the select board with more information about the certification ahead of the Nov. 17 special town meeting. In the memo, Tangeman explains that the town’s free cash for fiscal 2025 was reduced by approximately $2.5 million due to “loan drawdowns and transfers” related to a Massachusetts Clean Water Trust loan that was not received by the end of the fiscal year on June 30, as well as unexpended funding through the American Rescue Plan Act (ARPA).

 “This temporary deficit remains a major component of the deductions reflected in the FY 2026 free cash calculation and continues to hold back free cash until remaining loan proceeds and other funding are fully posted to the project,” Tangeman wrote in the memo.

 Tangeman elaborated further before the select board on Dec. 17. 

 “If you go to most of the towns on the Cape, you’ll see that the timing of cash flow and receivables often reduce the total amount of free cash that can be certified. It’s very common,” he said.

 The loan from the Clean Water Trust is being used to help fund the first two phases of sewering downtown and in the area of Meetinghouse Pond, Tangeman said. The town also used funding through two ARPA grants to help cover the cost of phase two of the sewer work, he said.

 Public Works Director Rich Waldo said an application was put into the state revolving fund (SRF) in April for reimbursement of expenses related to the sewer work for the first three months of 2025. But upon learning that the town had until the end of the calendar year to use $800,000 in unexpended ARPA funding, the town withdrew and revised the application in an effort to utilize those ARPA funds, he said. 

 The select board in June voted to expand the scope of how the ARPA funds could be used. But it wasn’t until last month, well after the end of the 2025 fiscal year in June, that the revised application was submitted through the SRF program, Waldo said. 

 “But fortunately I think we have a good recourse where we can go back (for reimbursement),” he said. 

Tangeman said that the revised application for approximately $6.3 million in reimbursed funds is currently under review through the SRF program. If and when it is approved, he said, the town will request a free cash recertification from the state, which would boost the town’s free cash reserves by “several million dollars.”

“I strongly anticipate we’ll have those funds at the annual town meeting for appropriation,” he said.

 But Payton in her complaint claims the board failed to act in accordance with the state’s Open Meeting Law when it discussed the matter publicly in November. The law stipulates that all subjects of discussion by the board be listed on that meeting’s agenda “with sufficient specificity” and that the agenda be made publicly available at least 48 hours in advance of the meeting, not including weekends and holidays.

 “The MA Attorney General has consistently ruled that broad labels such as ‘Town Manager Report’ are insufficient when significant matters are anticipated to be reviewed and discussed,” the complaint reads. The issue was not specifically itemized as a topic for discussion on the agenda for the board’s Nov. 19 meeting. 

 “It did, however, become a point of discussion, and that’s where the trip up comes, where we probably should have said ‘You know what? We’ll discuss this at our next meeting,’” Newman said Dec. 17. “But we engaged in discussion, because that’s what we do.”

 The complaint calls for the board to undergo “mandatory Open Meeting Law training,” and that a “public statement” be made “that the select board is committed to full transparency.” Galligan added that the board quickly moved to revise its agenda for the Dec. 17 meeting to allow for discussion about the complaint.

 “I think we are fully committed to full transparency to the public, because we are mindful that we work for the public in the public interest,” said Andrea Reed of the select board. “And so we continue that commitment with both a swift response when we fall short of our goals and a total commitment to do the best job we can each time we meet.” 

 In her complaint, Payton also asked that details of the fiscal 2026 free cash certification be put on the agenda for the board’s next meeting to allow the public “the opportunity to ask questions and participate” in discussion on the matter. Newman noted that the certification was placed as an agenda item for the Dec. 17 meeting before the complaint was received. 

 “I think that shows a commitment to transparency,” she said.

 But going forward, Newman and members of the board said a better job needs to be done to condense information for the public and to alert them to the various avenues and tools that are available to find information on free cash and other matters on their own.

 “We have two issues: translation of municipal conversation to public digestibility, and two, the resources that are new that are available to seek that information directly,” Reed said.

 And if all else fails, Newman said, members of the public are welcome to bring their questions or concerns to town staff directly.

 Beyond the complaint, Galligan called for all board and committee chairpersons to undergo Open Meeting Law training in the new year.

 “I know it’s a requirement,” he said. “They have to get certified. I think it’s something we really need to recommit to, so I’m going to make that an item of priority as we head into 2026.”