Sunday, August 12, 2007

DA to Amherst: Keep it legal!

District Attorney Elizabeth Scheibel spanked the Amherst Select Board for yet another Open Meeting Law violation warning “For the future, Select Board members should ensure that a quorum of its members do not attend and speak at a meeting on subjects about which they may be ultimately called to take a position unless such meeting is posted as a Select Board meeting and the other requirements of the Open Meeting Law are met.”

On August 1, 2007 three Select Board members (of five) crashed a joint meeting of the Planning Board and Town Commercial Relations Committee unannounced. While only two loquacious members—Rob Kusner and Anne Awad—participated, the common sense DA concluded, “Deliberation occurs even if one of the three members has chosen to remain silent. The issue is whether the public should have been apprised that the Select Board would be discussing a matter over which they have jurisdiction.”

She continues: “As a practical matter, enforcement of the Open Meeting Law can not hinge on a retrospective review of the number of members of a Board who actually spoke at the meeting.” Duh!

In my complaint I also mentioned Rob Kusner’s OTHER excuse: that all three Select Board members were attending/acting as “committee liaisons” rather than as individual Select Board members. The DA probably thought that absurdity unworthy of comment.

Since the Charter Revolution succumbed, the sanctimonious Select Board has relentlessly purged any vestiges of that (common sense) reform movement.

Committee members—especially those on the more influential boards—and even town employees (or whatever the town attorney is considered) have been targeted for termination.

The Amherst Select Board’s scheme is to sabotage pro-development zoning articles scheduled for Fall Town Meeting, and they will go to great lengths to achieve that dubious distinction.

The next joint meeting of the Planning Board Zoning Sub-Committee and Town Commercial Relations Committee is scheduled for this Wednesday. Unfortunately, Open Meeting Law violations are not currently punishable by fines, but it’s a safe bet the Select Board will legally post their intentions.


Alisa V. Brewer said...

From: Alisa Brewer
Date: August 11, 2007 8:42:37 PM EDT
To: Gail Weston (TOWN)
Cc: Larry Shaffer (TOWN MGR), Gerry Weiss
Subject: Monday Aug 13: Please Post Select Board meeting for August 15, 2007 same time & location as Zoning Subcomm & TCRC

Dear Gail/Kate/Judith-

Please post this meeting from the Town website Calendar:

Zoning Subcomm & Town/Commercial Relations Comm
Wednesday, August 15, 2007
Description: Joint Meeting
Time: 5:00 PM
Location: Town Room, Town Hall

as a Select Board meeting as well. However, it should *not* be posted as a "joint" meeting of the Zoning Subcomm/TCRC/SB, but simply as a Select Board meeting, under the Select Board meeting section, with the location and time of the Zoning Subcommm/TCRC meeting.

Doing this Monday morning Aug 13 should preserve the 48 hours notice required by Open Meeting Law, and prevent speculation about the Select Board's role in Select Board member's attendance.

I would really appreciate it if you would also ensure the chair of the Planning Board's Zoning Subcommittee and the chair of the TCRC were copied on this message, as I am unsure if I have email addresses for the current chairs of those bodies.

If you have any questions, please do not hesitate to contact me.

Thank you.


[ Originally published on: Wednesday, August 08, 2007 ]

Quorum conundrum surfaces in Amherst

AMHERST - What if one town committee held a meeting and most of another committee's members showed up without telling anyone first? Is there anything wrong with that?

A Town Meeting member and self-appointed troublemaker for the Select Board thinks there could be, so he has written to the Northwestern district attorney's office seeking a lawyer's opinion.

According to the state's Open Meeting Law, "When quorums of two or more bodies meet jointly, it is a meeting of each of the governmental bodies, and therefore both bodies must give notice of the meeting."

Larry Kelley, happening to stop into a joint meeting of the Zoning Subcommittee and the Town Commercial Relations Committee on Aug. 1, discovered three of five Select Board members - Rob Kusner, Anne Awad and Hwei-Ling Greeney - there.

Kelley did his due diligence and confirmed that the Select Board had not posted a public notice saying that their members were meeting that night, either with the other boards or without them.

"When I mentioned this to Mr. Kusner (who deliberated at length at that joint meeting, as did Ms. Awad) he replied that Ms. Greeney unexpectedly attended BUT, did not speak," Kelley wrote the district attorney.

"If the Amherst Select Board is operating under that assumption, then perhaps a refresher on the Open Meeting Law is warranted," he suggested.

However, it doesn't appear to be a cut-and-dried case.

While she could not speak to this case, Assistant District Attorney Cynthia Pepyne said alleged examples of committee members getting together to discuss matters under their jurisdiction outside of a posted meeting can be difficult to prove.

"If three members appear, but no one says a thing," that is not a violation of the Open Meeting Law, Pepyne said. "It has to be deliberation to be a meeting."

Say a quorum of members shows up at the same bar: "As long as they don't talk about their board business, that's fine," Pepyne said. "The law exempts social or chance encounters. But you can't use it to circumvent the law."

Pepyne couldn't recall a published example of a quorum of committee members having been shown to be discussing business at a bar while their unsuspecting constituents basked in a false sense that all was on the up-and-up.

But she hears mention of board members being at a coffee shop, for instance, and soon after taking some action without public discussion of it.

In fact, a majority of committee members could show up at another committee's meeting and talk all they want - as long as it has nothing to do with their own committee's business, Pepyne said.

Home-based sleuths could try to solve the case of the Select Board at the Joint Planning Board-Commercial Relations Committee meeting themselves by consulting the law at the attorney general's Web site at

Trouble is, the law doesn't address the issue explicitly.

"There's nothing in the Open Meeting Law that directly says a quorum of one body can't go to a meeting of another body," Pepyne said. "If you look at the definition, it says when a quorum deliberates, they're required to have a posted meeting."

Reader's comments
Larry Kelley [ Posted on: Thursday - August 09, 2007 at 12:38 PM]
You gotta be kidden me! Yeah, if three Select Men show up as spectators that's fine. But what if two deliberate and one does not (or two or three do not)? In this case ALL three Select Men were seated around ONE large table with the committee person running the meeting defering to the (two) Select Men who did participate. The DA needs to remember the old adage "If you give them an inch..."

Daily Hampshire Gazette © 2007 All rights reserved

LarryK4 said...

Damn, that was fast!