Thursday, February 12, 2009

Let the Judge decide...

On Feb 12, 2009, at 12:06:08 PM, wrote:
Subject: Appeal for Public Documents denial
Date: February 12, 2009 12:06:08 PM EST

Secretary of the Commonwealth
Public Records Division
McCormack Building, Room 1719
One Ashburton Place
Boston, MA 02108

I wish to appeal Amherst Town Manager Laurence Shaffer’s denial of my Public Documents Request dated 1/26/09. The document in question is an email of complaint to the town manager with job related criticism including the possible disappearance of town equipment; that statement was also copied to all five Amherst Select Board members. Therefor I believe it is a public document.

That whistleblower is no longer working as a municipal employee and will be receiving money (either tax money or insurance money) as severance compensation. I firmly believe the general public has a right to know.

And because that individual signed a “non disclosure” agreement with the town, he cannot tell his side of the story or make those potentially serious allegations public.

Sincerely Yours,

Larry Kelley
Amherst Town Meeting member
Amherst Redevelopment Authority

---Original Message-----
From: Shallow, Joanne (SEC)
Sent: Thu, 12 Feb 2009 12:32 pm
Subject: RE: Appeal for Public Documents denial

your case number is SPR09.044. In app one week you will receive a formal
acknowledgement letter in the mail with the case number and name of the attorney
assigned to review your appeal. What is you mailing address

On Feb 12, 2009, at 1:02:33 PM, wrote:

Hi Joanne,
Sorry, I should have included that (and today's date):
Larry Kelley
460 West St.
Amherst, Ma. 01002
Thank you for a prompt response.

Memo: Town Manager
Re: Complaint from municipal Information Technology Department worker
Dear Mr. Shaffer,

Could I please get any written or electronic correspondence during the calendar year 2008 up to today’s date concerning a complaint by an Information Technology municipal employee on how the department is/was being managed including his communications, and any response from your office to him, the IT manager or the Amherst Select Board?

Larry Kelley
Cc: Amherst Select Board

From: Shaffer, Larry
Sent: Mon, 26 Jan 2009 4:22 pm
Subject: RE: Public Documents Request

Dear Mr. Kelley,

Could you be more specific with your request?

Thank you.


Sent: Mon, 26 Jan 2009 4:27 pm

Hey Larry,

Specifically an email sent to you and Cc'd to the Select Board, I believe in November, from XXXXXX who is now no longer employed with the town.


From: Shaffer, Larry
To: LarryK4
Cc: DJENKINS@K-PLAW.COM; Zlogar, Kay ; Eunice Torres

Sent: Tue, 3 Feb 2009 5:12 pm

Subject: FW: Request for Documents


Please let this acknowledge receipt of your e-mail of January 26, 2009, requesting production of an e-mail from XXXXXX to myself and the Board of Selectmen in November 2008. Although record responsive to your request exist, such documents may be withheld from disclosure pursuant to the Public Record Law.

The document may be withheld pursuant to:

Exemption (c) of the Public Records Law. Exemption (c) permits a custodian to withhold records that are:

Personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.

The Supreme Judicial Court (“SJC”) has defined personnel records to include any records that would be helpful in making determinations regarding hiring and firing. Wakefield Teachers Association v. School Committee of Wakefield, 431 Mass. 792, 798 (2000). The court specifically noted that employee work evaluations and promotion and termination information pertaining to a particular employee fall within the definition of personnel records. Thus, certain responsive records are exempt as they fall within the definition of personnel records and relate to specifically named individuals.

Exemption (d). The document relates to the development of policy. Exemption (d) is intended to avoid release of materials that could taint the deliberative process if prematurely disclosed and applies to:

Inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this sub clause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based.

The application of the exemption is limited to recommendations on legal and policy matters found within an ongoing deliberative process. Babets v. Secretary of the Executive Office of Human Services, 403 Mass. 230, 237 n.8 (1988). In considering exemption (d), the court in General Electric Company v. Department of Environmental Protection, 429 Mass. 798, 807 (1999) stated, “The purpose of exemption (d) is to foster independent discussions between those responsible for a governmental decision in order to secure the quality of the decision.” Id. Accordingly, premature disclosure of the document may jeopardize the Town’s ability to analyze the issues, consider the recommendations of the employee, and reach a decision as to how to proceed in this matter. As such, responsive records are exempt pursuant to exemption (d) of the Public Records Law.

Exemption (f). Further, the requested report contains innumerable details regarding voluntary complainants and witnesses. Exemption (f) of the Public Records Law allows a custodian of records to withhold from disclosure those records that are:

Investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.

One of the purposes of this exemption is to encourage people to come forward and co-operate in matters under investigation. Globe Newspaper Company, 419 Mass. at 863; Bougas v. Chief of Police of Lexington, 371 Mass. 59, 354 N.E.2d 872 (1976). Thus, exemption (f) permits the permanent withholding of any details that would tend to identify complainants and voluntary witnesses, even in those instances where an investigation has concluded.

As noted, the responsive records are replete with details that would identify complainants, as well as witnesses that voluntarily provided information and cooperated with the investigation. The SJC has held that, “[t]he inquiry as to what constitutes identifying information regarding an individual . . . must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual…” Globe Newspaper Company v. Boston Retirement Board, 388 Mass. 427, 438 (1983). Considering the content of the responsive records from the perspective of the public, as well as those who are familiar with the subject matter, the names and identifying details of the voluntary witnesses and complainants are inextricably intertwined with the remainder of the information contained in the document. The identifying details cannot be redacted in such a way so as to permit disclosure of the records without identifying the individuals involved.

Stated differently, due to the small number of individuals involved in the investigation and their involvement with the matters at issue in the document, the document may not be redacted in such a way so as to avoid the possibility that the unredacted portion of the records may indirectly identify these individuals. Accordingly, the responsive documents will be withheld from disclosure pursuant to exemption (f).

Based on the above your public records request is denied. You may appeal this decision to the Supervisor of Public Records.

Very truly yours,

Laurence Shaffer
Town Manager

I of course hit "reply all," and since the Town Manager is a veteran I'm sure he gets the reference:

Sent: Tue, 3 Feb 2009 5:41 pm
Subject: Re: Request for Documents
To: Amherst Town Manager
From: Larry Kelley
Re: Public Records hoarding

Dear Laurence,


Very truly yours,

Larry K
I then get a hit on this blog at 5:55 PM (less than 15 minutes later) from someone in Boston doing a Google search: 'Open Meeting Law, Public Records Law, Amherst Town Manager'. And of course, the only folks outside Amherst on that email 'reply all' list was the town law firm, those Big City Boys, Kopelman and Paige, P.C. Hmmm... But you would think Big Time lawyers would do their research BEFORE giving their paid opinions.

You may want to turn up your volume slightly to catch all of this because not only did ACTV SCREW UP the video portion of Monday night's SB meeting, I think they also forgot to turn on my microphone (hey, what the Hell do you want from a $250,000 publicly funded operation)

But we can't send a positive message to our employees?

Let's hear if for whistleblowers


Ed said...

Is he actually serious? And why did Enuice Torres get a copy of this?

If an email goes to all 5 selects, then it almost becomes a public meeting document.

But you are going about this the wrong way -- instead of asking for Schafer's incoming copy, you should be asking for the employee's outgoing copy of the same email. It was generated by a town employee on town equipment in the course of the employee's duties which did not include either of the things Schafer is raising -- I am assuming this person neither was involved in personnel nor investigation.

The protection of whistleblowers is if they are anonymous -- if you know who the person *is* and request the copy from his outbox rather than Schafer's inbox then there is no whistleblower protection involved. You already know who it is.

It also is possible that the nondisclosure agreement may be "contrary to public policy" -- I am not a lawyer but am inclined to think that if it is an agreement not to reveal a crime (which the conversion of town property would be) then it is at best unenforcable and arguably itself a criminal conspiracy.

I wonder what the DA's Office would say about this, a nondisclosure agreement to cover up what essentially is a form of embezzlement? And if she was to sit this person down in front of a Grand Jury, what would happen to the nondisclosure agreement?

LarryK4 said...

Yeah, that's a good point!

Town Manager Barry Del Castilho was once officially reprimanded by the State Ethics folks when I filed a complaint about a column he did for the ultra crusty Amherst Bulletin on town time using a town computer (although it may have been a typewriter since we're talking 1995) to advocate for the Town Hall renovation Override.

He was of course, not all that persuasive as the Overrides failed both times BUT Town Meeting circumvented the voters by taking out a monstrous loan that I think we are still paying off to this day.

Anonymous said...

Larry, you have no idea how important what you are trying to do, is, to A LOT of people working for the Town of Amherst. How much would come out if the folks felt more protected! Sadly for some, it is too late... they were totally unprotected and at the mercy of those who should never have been given the power to use an individual's income/job loss as a tool to blackmail/intimidate.

Still, people are doing this very thing as I write this. They will have their day, hopefully... They know who they are.

Neil said...

It's hard to imagine that Shaffer can withhold a town worker (and whistleblower's) e-mail correspondence sent to Shaffer and the 5 member select board.

If Shaffer's going to be obstructionst,send the request to the Select Board. Also, request that all electronic forms of the correspondence be left "as is" and that no backup tapes be recycled or destroyed until the matter is resolved.

It's not the malfeasance that gets people fired, its the cover-up.

What was the whistle blowing issue?

LarryK4 said...

Believe it or not I don't (yet) actually have the email.

But I'm told it had to do with management using taxpayer time to do private sidejobs, and the possible theft of town equipment.

These are of course simply unsubstantiated allegations, and in America you are innocent until proven guilty.

When the info IS released, then we can ALL act like Jurors and decide if any of it has merit. That too, is part of the American system of justice.

"Sunlight is the best antiseptic."

Anonymous said...

"But I'm told it had to do with management using taxpayer time to do private sidejobs, and the possible theft of town equipment."

Haha, that must be in the school transportation dept.!!

LarryK4 said...

No, Information Technology Department.

But the point is, if ALL employees (transgenders included)--no matter what the department--feel comfortable coming forward, then measures can be taken, tax money saved, accidents, perhaps, avoided.

Ed said...

The Minuteman would always love tips -- we have a couple of people who are REALLY good at tracking down fiscal irregularities and if they can chase them through the complex UMass system, I suspect they can also figure them out in Amherst.

Paper should be out Tuesday morning.

Anonymous said...

The same person 'allegedly' barely ever showed up to work for months on end and management was very well aware of it. Management gets away with this kind of stuff everyday. Personal phone calls, poor performance, personal business, and simply not showing up for work. And the person who was trying to make it right, gets fired. Oh I'm sorry, they 'resigned' (under duress I am sure). I wish more people had the nerve this employee had to stand up for what is right and go to management, no matter the cost. (in this case, and other in the past, their job is the price they paid)

And now Shaffer wants to take away contract negotiated raises. Why? so he can reward more Department Heads for bad behavior? I don't think so! or maybe he wants to hire back another incompetent employee to manage our health trust fund?

p.s. Larry she makes WAY more than that $43,000

LarryK4 said...

Yeah Larry (the other one) makes $125-K per year plus another $4,000 cell phone and car allowance; almost as much as our acting-School Co-Superintendents who come in at $135-K (and should have negotiated a wheelchair allowance).

And then John Musante was given a $10,000 raise as consolation for not becoming Town Manager so he joins the $100-K club.

But the AP reported yesterday that UMass has the highest percentage of top paid workers in the state (most of whom will not be working this coming Monday on whatever the Hell state "holiday" it is)

dominique said...

Larry: FYI - Monday is a Federal holiday, called "President's Day," which was created by the consolidation of George Washington's and Abraham Lincoln's birthdays.

LarryK4 said...

Yeah, I actually knew that (I'm just grumpy because I'm working)

Anonymous said...

At least you've still got a business to go to work at. These are tough times so look on the bright side.

LarryK4 said...

Yeah, that's why I get so pissed off at Unions allowing a minority of people to get laid off so that the remaining majority can get their "negotiated raises and cost of living increases"

Anonymous said...

Larry, Good job, you and every other tax payer needs to get this investigated. It sounds like there were many wrongs done here and people need to be accountable. I feel very sorry for this employee if any of this is true. I for one am going to watch and hope you can get the truth to come out! NO ONE should lose their job for trying to do the right thing!!!!!!!!!!!!

Anonymous said...

Thanks Larry!
There is a lot of truth here and although it does not surprise some of us who see this and hear about this everyday, others (like the public and the taxpayers) would be shocked and apalled to know the truth here. Don't stop doing what you're doing, keep digging! Someone has to stand up to management and rock the boat. At least you can't get fired!

Anonymous said...

This employee (who sent the email in question) was well liked and a hard worker. Schaffer humiliated him and demoted him because he pointed out in the email that Schaffer himself had been informed of the problems within the town and hadn't done anything about them. The email was also copied to the select board. I guess it became personal for Schaffer at that point. After getting the email he took the employees priviledges away and banned him from the town for a couple of days. Then no one was allowed to talk to him and everything became secretive after that.