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Wonderland's Executive Privileges: Court to Decide

Wonderland's Executive Privileges: Court to Decide

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Published by Craig Shibley
Today in East Brookfield District Court, the Honorable Judge Robert Gardner Jr., took under advisement a motion by this muckraker, pro se, to release numerous executive session minutes related to a Notice of Trespass issued by the Town of Barre last September.
Town officials refused to release the minutes to the Worcester DA's Office back in June '13 during discovery.
So now Judge Gardner will render a determination either ordering Wonderland to release the minutes - or not.
To be continued . . .
Today in East Brookfield District Court, the Honorable Judge Robert Gardner Jr., took under advisement a motion by this muckraker, pro se, to release numerous executive session minutes related to a Notice of Trespass issued by the Town of Barre last September.
Town officials refused to release the minutes to the Worcester DA's Office back in June '13 during discovery.
So now Judge Gardner will render a determination either ordering Wonderland to release the minutes - or not.
To be continued . . .

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Published by: Craig Shibley on Aug 08, 2013
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10/17/2013

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COMMONWEALTH OF MASSSACHUSETTSTHE TRIAL COURTDISTRICT COURT DIVISIONEAST BROOKFIELD DIVISION DOCKET NO. 1369CR40
 
 ______________________________ )COMMONWEALTH ))v. ))CRAIG SHIBLEY ) ______________________________)DEFENDANT’S ARGUMENT IN SUPPORT OF ITS MOTION FOR LEAVE TO SUMMONSRECORDS PRIOR TO TRIAL
Now comes the Defendant and respectfully moves this Honorable Court pursuant toRule 17(A)(2) of the Massachusetts Rules of Criminal Procedure, for leave to summons intoCourt records pertaining to the Defendant from the following source (Town of Barre Board ofSelectmen) prior to the trial date. Minutes from the following (7) executive sessions convenedby the Board of Selectmen under the Open Meeting Law: 
 July 2, 2012
Exemption #4,
to discuss the deployment of or strategy regarding security personnelor devices
; 
 July 18, 2012
Exemption #4,
to discuss the deployment of or strategy regarding security personnel or devices
; 
August 6, 2012
Exemption #4,
to discuss the deployment of or strategy regarding security personnel or devices
; 
September 4, 2012
Exemption #4,
to discuss the deployment of or strategy regarding security personnel or devices
; 
December 3, 2012
Exemption #4,
to discuss the deployment of or strategy regarding security personnel or devices
; 
December 17, 2012
Exemption #4,
to discuss the deployment of or strategy regarding security personnel or devices
; 
 January 7, 2013
Exemption #4,
to discuss the deployment of or strategy regarding security personnel or devices
;Additionally, the Defendant requests the Commonwealth produce any additionalexecutive session records from July 2012 to the present involving the Barre Board of Selectmenspecific to a Notice of Trespass issued by the Board of Selectmen on September 6, 2012 undereither Exemption #1 or #5 of the Open Meeting Law.
 
Lampron procedures are clearly outlined in Commonwealth v. Lampron, 441 Mass. 265(2004) and United States v. Nixon, 418 U.S. 683 (1974)
 
how a party moving to summonsdocuments pursuant to Mass. R. Crim. P. 17(a)(2) prior to trial must establish good cause byshowing:I. The Documents Are Evidentiary And Relevant;II. That The Records Are Not Otherwise Procurable Reasonably In Advance Of Trial By ExerciseOf Due Diligence;III. The Moving Party Cannot Adequately Prepare For Trial Without Such Production AndInspection In Advance Of Trial And That The Failure To Obtain Such Inspection May Tend ToDelay The Trial;IV. This Application Is Made In Good Faith And Not Intended As A General FishingExpedition;When a third party does not consent to the release of the records, such as the case here,the moving party must meet these four criteria.
Historical Background & Summary of Facts:
 In a media report published in the
Worcester Telegram & Gazette
(
9.30.12
) Barre SelectmanLief Ericson stated how “
 
the matter (of the Notice of Trespass) was decided behind closeddoors”.This reference to an executive session meeting would be affirmed in an earliercorrespondence (
9.26.12
) from then Acting Town Administrator Heather Lemieux as a follow-up to a related records request made by the Defendant.Ms. Lemieux wrote the following:
The minutes you are requesting are Executive Sessionminutes under MGL c. 30A, Section 21 Paragraph 4 “to discussthe deployment of or strategy regardingsecurity”… The reason for this executive session is still an ongoing matter and therefore is beingwithheld
.Since the September ’12 correspondence the Town of Barre has asserted the records areprivileged and the alleged reason for the executive sessions remains an ongoing matter.According to Barre’s Special Counsel, Fernand Dupere, “
this notice (was) based on thethreats you have made against town of Barre officials/employees
”. No accompanying affidavit wasever provided.The Open Meeting Law
, MGL c. 30A s. 22
, clearly states how all minutes, including thoseinvolving executive sessions, must be memorialized:
 
(
a) A public body shall create and maintain accurate minutes of all meetings, including
executive sessions
 , setting forth the date, time and place, the members present or absent, a summaryof the discussions on each subject, a list of documents and other exhibits used at the meeting, thedecisions made and the actions taken at each meeting, including the record of all votes.(b) No vote taken at an open session shall be by secret ballot. Any vote taken at an
executive session
 shall be recorded by roll call and entered into the minutes.(d) Documents and other exhibits, such as photographs, recordings or maps, used by the body at anopen or executive session shall, along with the minutes, be part of the official record of the session.(f) The minutes of any executive session, the notes, recordings or other materials used in the preparation of such minutes and all documents and exhibits used at the session, may be withheld fromdisclosure to the public in their entirety under subclause (a) of clause Twenty-sixth of section 7 of chapter 4, as long as publication may defeat the lawful purposes of the executive session, but nolonger; provided, however, that the executive session was held in compliance with section 21.
The minutes of these executive sessions strike at the very core of this criminalproceeding:
The illegal issuance of a Notice of Trespass which are being shielded by theTown of Barre pursuant to the Statutory Exemption which applies to records that are:
specifically or by necessary implication exempted from disclosure by statute
(see: MGL c. 4s. 7 (26)(a).
The Town of Barre, to date, has not cited any statute.The Public Records Law assumes all records are public all the while placing the burdenon the records holder to prove
with specificity
that such records are exempt. So it is theDefendant’s assertion that the documentary evidence sought has a “
rational tendency to prove
[or disprove] an issue in the case
.”The minutes sought are without question relevant to this case and involve not only thequestionable actions of the Board of Selectmen but also the Barre Police Department and theinformation contained therein would be material to the case as to likely create a reasonabledoubt that would not otherwise exist,
Commonwealth v. Pare
, 43 Mass App. Ct. 566 (1997).***According to Barre Chief of Police Erik Demetropoulos, in his report to the Court (11.20.12),the “
Notice further articulated that Mr. Shibley was served
due to his recent arrest 
at a Town boardmeeting
”.Chief Demetropoulos was referencing an occurrence on June 19, 2012 in which theDefendant, at the time a publicly elected official serving on the Town of Barre’s Planning Board,was charged with Disturbing the Peace and Resisting Arrest (2 counts) while serving in hiscapacity as an elected official.The Court should also consider the legitimacy of the Barre Board of Selectmen’s calculateddecision to use Exemption #4 of the Open Meeting Law rather than Exemption #1,
to discuss thereputation, character, physical condition or mental health, rather than professional competence, of an

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