Selectmen Refute Open Meeting Law Violations Claims

By: William F. Galvin

Topics: Open Meeting Law and Public Records Law

Harwich town seal.

HARWICH – The board of selectmen is declining to take any action on alleged violations of the state Open Meeting Law filed by The Port Restaurant and Bar.

Through town counsel, the board informed the Director of Open Government in the state Attorney General’s Office that no steps would be taken to remediate the complaints. The response said the board did not violate the law and that several of the complaints were “frivolous and hyperbolic” and outside the scope of the Open Meeting Law.

The latest complaint filed by The Port's attorney Raymond Tomlinson was over an executive session held by the board on July 26 alleging that Selectmen Chairman Michael MacAskill falsely stated the actions taken by the board in the closed door meeting when returning to the open session. MacAskill reported that the discussion was a strategy session relating to litigation and said no action was taken.

Three days later, the town’s legal counsel, John Davis, said in a Suffolk Superior Court hearing that in the executive session the selectmen voted to “stay” an earlier vote to suspend the restaurant’s liquor license for three days in August. The draft minutes of the executive session confirm that selectmen voted 4-0 to stay the suspensions. The complaint charged that the board did not comply with the OML as it did not act with transparency and properly inform the public of the vote.

The failure to inform The Port of the action caused the restaurant to incur substantial additional and unnecessary legal expense in preparing for the July 29 hearing in Suffolk Superior Court, according to the complaint, filed by the restaurant's attorney, according to the complaint.

Town counsel Janelle M. Austin said the response is for the July 26 executive session complaint, but it is also a consolidated response to the five earlier OML complaints filed by The Port for selectmen hearings and meetings on April 26, April 27, May 4, May 10, and May 12. 

“Despite being notified previously that substantially all of the allegations raised in the approximately 15-page complaints are wholly outside the scope of the Open Meeting Law, Port Restaurant...continues to use the Open Meeting Law as an improper vehicle by which to file a barrage of grievances against the board,”  the selectmen’s response reads.

Executive sessions maybe convened to “discuss strategy with respect to…litigation if an open meeting may have a detrimental effect on the bargaining or litigation position of the public body and the chair so declares,” according to the Open Meeting Law. MacAskill declared that the July 26 session would have a detrimental effect on the board’s litigating position, according to the complaint.

“Because the board properly entered into executive session and has no obligation to disclose to the complainant or to the public the substance of those discussions in open session,  the board considers the complaint resolved,”  the board response said.

The previously filed complaints also allege the board violated the law due to the failure to release executive session minutes from the hearings of April 26 through May12.  The board asserted that releasing its executive session minutes will compromise the purposes for which the executive session meetings were held and declined to do so.

As for other matters stated in The Port’s complaints, the board’s responded that alleged violations of the conflict of interest law, the licensing statutes, noise bylaws, litigation practices, and unsubstantiated claims of “bias” or “malicious and orchestrated” actions to target The Port are not properly brought in an OML  complaint and will not be further addressed by the board.

“The Attorney General should decline to review any further complaints by Port Restaurant in which it impermissibly uses the Open Meeting Law to file frivolous and hyperbolic complaints against the board as it relates to pending litigation, other statutes and bylaws, and it’s attorneys’ expenses,” the board concluded.

The Division of Open Government has yet to act on The Port’s complaints. 

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