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Selectman Michele Couture filed a complaint. |
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Chair Mary-Jo Avellar defended her actions. |
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Selectman files complaint alleging open meeting law violation
By Pru Sowers
Banner Staff
PROVINCETOWN — Selectman Michele Couture said she filed a complaint with the Cape & Islands District Attorney’s Office Tuesday protesting the attendance of three selectmen at a citizens meeting over the weekend, a possible violation of the state open meeting law.
The three selectmen, chair Mary-Jo Avellar, Austin Knight and Lynne Davies — a quorum of the five-person board — attended a meeting of the Provincetown Association of Concerned Citizens held Sunday at Fanizzi’s By the Sea, a local restaurant. The meeting convened to discuss the creation of several articles PACC membership wanted to place on the April Town Meeting warrant.
Couture said that a government body engaging in a deliberation must comply with the state open meeting law whenever a quorum is present. If a quorum is present and discusses an issue over which that body has jurisdiction, it is considered a public meeting and, as such, must be publicly posted 48 hours in advance, minutes taken and open to the public.
“At this [PACC] meeting, agendas handed out very clearly outlined topics to be discussed. It is upsetting that those members of the board who attended this meeting failed to recognize appropriate caution regarding their presence as a quorum at an unposted meeting with discussions taking place concerning policy issues,” Couture read in a prepared statement delivered at Monday night’s selectmen’s meeting.
Selectman Pam Parmakian also read a prepared statement criticizing the three selectmen for attending the meeting, calling it “a very, very bad choice.”
“In my opinion, you’ve compromised the integrity of this elected board and participated in policy discussions, which is a violation of the open meeting law,” she said, adding, “Shame on you guys.”
Avellar was furious that Couture and Parmakian brought the issue up without speaking to her first, calling it “a sneaky thing to do.” She acknowledged she knew that Knight and Davies were going to attend the meeting but that it fell under an exception in the law providing for “chance” or “social” meetings of a governmental body.
According to the open meeting law, the law does not apply to such unplanned meetings where a quorum is present “at which matters relating to official business are discussed, so long as no final decision on such business is reached.”
Avellar said none of the selectmen present at the Sunday meeting participated in several votes taken by PACC members to decide which issues they wanted to pursue. Five priorities were eventually approved at the meeting involving changes to the town’s policy on affordable housing, reorganizing the school district, a request to selectmen to change the structure of the Provincetown Public Pier Corp., a request for an audit of town finances, and a protest over consulting fees paid on town projects.
Town Manager Sharon Lynn agreed Monday that the selectmen quorum on Sunday raised questions.
“Whenever three selectmen are together, you should think about what you’re doing there, what the purpose of the meeting is and whether it is a chance meeting. This creates the illusion of a violation of the open meeting law,” Lynn said.
“It’s considered a chance social occasion,” Avellar said. “We are allowed to appear in restaurants or singing groups, like we have in the past. No one is going to tell me where I can and cannot go in Provincetown.”
The Cape & Island District Attorney’s Office said it received several telephone calls on Monday inquiring about the legality of the selectmen’s presence at the PACC meeting. Couture said she filed a formal complaint with the office on Tuesday.
Tom Shack, assistant district attorney and chief of operations, said he could not comment specifically on the incident since an inquiry had not yet been conducted. However, the law is clear, he said, on what is allowed when a “chance” quorum of a governmental board is involved.
“If the discussion is on the weather or the food or innocuous things, it is not a violation. However, if somebody brings up an issue and it is a matter over which they have jurisdiction, it’s running close to the line,” Shack said.
Whether the open meeting law has been violated comes down to whether a deliberation occurred, Shack added, and the definition of deliberation “is deliberative, communicative behavior.”
Avellar said she participated in the discussion on the policy issues that PACC members were interested in pursuing but only offered instructional advice on how to legally create an article. Knight and Davies said they did not participate in the discussions. In addition, both Knight and Avellar sat together at a front table where two of PACC’s founders also sat.
Shack, while not commenting on the particulars of the PACC meeting, said even if all members of the board present at a meeting do not speak, it might still be a violation.
“Even if one doesn’t talk, if others did, it looks like a deliberative board,” he said.
At least one person who attended the PACC meeting appeared to believe the selectmen were there as governmental representatives, not private citizens.
“And a very special thanks to the selectman [sic] who offered their expertise and guidance on what would constitute action on any warrant(s) proposed as a result of this meeting,” E. Michael Richards wrote on the PACC website blog on Monday.
If the district attorney’s office finds that a violation occurred, Shack said the remedy is usually corrective and educational, primarily requiring that the DA’s ruling be read into the public record. Most violations of the open meeting law are the result of a lack of understanding, he said.
Avellar was undeterred, however, and insisted the selectmen’s attendance at the PACC meeting was legal.
“I will continue to go to any damn meeting I intend to. If the DA wants to come take me away, fine,” she said at Monday’s selectmen’s meeting.
psowers@provincetownbanner.com
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Feb 28th, 2008