Interesting Planning Board meeting last night. Jerome Donovan was voted temporary Chair until a new Chairman is named; Mr. Donovan accused a Town Councilman of being a possible plaintiff against the town in regards to the GEIS; three members of the town board were in attendance at the Planning Board meeting without prior notice to the public. Acting Planning Board chairman, Jerome Donovan, invited the three town board members plus the Deputy Supervisor and Town Attorney to attend an executive session [in violation of the Open Meetings Law] called by the Planning Board to discuss "employment histories of Planning Dept and Planning Board personnel".
The Open Meetings Law is very clear; if a majority of a public body gathers to discuss public business, it is considered a meeting that falls under the Open Meetings Law regardless if there is any intention of taking action. Second of all, it is questionable if Mr. Donovan's explanation for the executive session, "employment histories of Planning Dept and Planning Board personnel", is a legitimate reason for an executive session.
We refer to an opinion letter from Robert Freeman, Executive Director of the Committee on Open Government. The Town of Williamson Comprehensive Plan/Master Plan Committee invited members of the Town Board, the Planning Board, the Zoning Board of Appeals, and the School Board to a meeting to review the Comprehensive Plan much like the NH Planning Board invited the town board to their meeting and executive session.
According to Robert Freeman's Opinion Letter:
From my perspective, if a majority of the members of any of the boards to which you referred was present at the gathering in question, the gathering would, in my opinion, have been a "meeting" subject to the Open Meetings Law. Further, I believe that each of those boards for which a majority was present would have been obliged to provide notice in accordance with §104 of that statute.Mr. Freeman further states in his opinion letter:
...the Court of Appeals, the state's highest court, found that any gathering of a quorum of a public body for the purpose of conducting public business is a "meeting" that must be convened open to the public, whether or not there is an intent to take action and regardless of the manner in which a gathering may be characterized...So what is the obligation of the town board when faced with this scenario. A public body cannot conduct an executive session prior to a meeting. Every meeting must be convened as an open meeting and a notice of a meeting must be given to the public in advance. Then as part of the open meeting a majority vote of its total membership [in this case the town board as well as the Planning Board] has to be taken before entering executive session. No notice was given to the public regarding a meeting of the town board at the Planning Board meeting nor was a vote taken by the town board to go into last night's Planning Board executive session.
Question was raised by those in attendance as to the legality of the town board members attending the executive session, but they seemed to go upon deaf ears. Mr. Donovan insisted that the executive session was legal, but Mr. Wiatr asked Mr. Donovan what authority did he contact regarding inviting town board members to the executive meeting. Mr. Donovan said that he asked the town clerk. Well there's some legal authority for you! How about bringing it to the attention of the town attorney prior to the meeting so that he could get a LEGAL opinion on how the Open Meetings Law might come into play in this instance.
During the discussion as to the Open Meetings violation, Mr. Tyksinski stated to us that he agreed with us that the meeting would constitute a violation of the Open Meetings Law. We shut off our cameras after the vote to go into executive session was taken, but we turned them back on when the relevancy of the OML was discussed. Here is that portion of the meeting.
As you can hear, Mr. Donovan assured the Town Attorney that no action was going to be taken and the Mr. Cully made it clear that he was concerned about Open Meetings violations. However, as we already pointed out, according to Robert Freeman, meetings still come under the Open Meetings Law regardless of whether there is intent to take any action. While Attorney Cully stated that he wanted to make sure that the Open Meetings Law was not violated, it was apparent that he is not completely familiar with the law. Mr. Donovan should have contacted Town Attorney Cully prior to the meeting to allow him time to research the law; the Town Attorney is the authority that should have been contacted, not the Town Clerk.
The executive session started with all members of the Planning Board and the invited town board members and others in attendance. However, much to the credit of Supervisor Tyksinski, upon information and belief, he left the executive session shortly after it started because he was uncomfortable with the whole scenario.
The Observer Dispatch is right on target with their editorial in today's newspaper, New Hartford transparency key to trust; Supervisor Tyksinski must show residents that maintaining an open government is paramount to his administration. We think Pat went a long way in showing that last evening when he walked out of the executive session shortly after it began.
We also have to point out that the attack on Councilman Backman by Mr. Donovan was uncalled for and the matter should have been discussed behind closed doors [and probably would have come under the 'pending litigation' part of the Open Meeting Law regarding executive session]. However, Mr. Donovan chose to publicly air this diatribe even though he obviously did not have all the information he needed to make the accusations and statements that he made last evening. Mr. Donovan apparently was just out to publicly attack the councilman who has been outspoken in his disapproval of the 5-acre requirement contained in the Generic Environmental Impact Study (GEIS) for the Southern end of town.
Here is a videotape of the Planning Board Meeting held on Monday, January 11, 2010.