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Michael B. Hootstein PO Box 158 Shutesbury, MA 01072 (413) 259-2142 September 18, 2016 Kevin W. Manganaro, Assistant Attorney General Division of Open Government Office of the Attorney General One Ashburton Place, 20th Floor Boston, MA 02108 RE: Open Meeting Law Complaints Dated August 1, 2016 and August 15, 2016 - OML Violations by the Amherst-Pelham Regional School Committee, Chair Laura Kent and member Kathryn Appy Dear Attorney Manganaro, T herein provide documentary evidence in support of my attached complaint allegations dated August 1 and August 15, 2016, that the Amherst-Pelham Regional School Committee, former Chair Laura Kent and member Kathryn Appy, individually violated the Open Meeting Law before, during and after illegal executive sessions held on July 13, July 20, August 1 and August 9, 2016. A few weeks ago, I was pleasantly surprised when former Chair Kent walked up to me to say hello after a meeting. During our brief conversation, she agreed with me that the school attorneys had intentionally disseminated false legal advice to her and the Committee. Ms. Kent informed me she was distressed and the attorneys should be fired as soon as possible. Unfortunately, within days of her revelation, Ms. Kent felt the need to resign her school committee position on September 14, 2016. I have previously had the privilege of working with Ms. Kent on another committee and want to personally honor Laura for her always well-intentioned service to our school community. This complaint is not a personal condemnation of Laura, but rather a complaint against former Chair Kent in her former "official capacity". ‘As this Office is well aware, the intentional violations of the Open Meeting Law we see here were previously found to be unlawful by the Massachusetts Supreme Judicial Court in District Attorney for N. District. v. School Committee of Wayland, 455 Mass. 561 (2009). It is therefore an extreme violation of the Massachusetts Attorneys’ Code of Professional Conduct and Conflict of Interest Law, for the losing attorneys in the above cited Supreme Judicial Court case, Attorneys Tate, law partner Colomb and Attorney Long to systematically conspire to undermine such a preeminent Massachusetts Supreme Judicial Court ruling, and to intentionally lie to their own school committee clients to accomplish their undermining! Nonetheless, the Committee and the Committee alone is solely responsible for its' own improper and secret deliberations behind closed government doors and the Committee's hiring of, and collusion with, disreputable school attorneys. ‘The executive session and open session minutes, secret email and letters sent by Committee members, Smoking Gun documents, as well as videos and transcriptions of open meetings, all prove a group of School Committee members led by Ms. Appy intentionally obstructed any and all open session Regional School Committee deliberation about the professional competence of the superintendent. In manner above, a 4-3 majority of Regional School Committee members willingly joined in a conspiracy with Ms. Geryk's 3 school attorneys and Ms. Appy to violate the Open Meeting Law and undermine the preeminent Massachusetts Supreme Judicial Court ruling in District Attorney for N. ict. v. Scho Committee of Wayland, 455 Mass. 561, 568 (2009) that instructs: "While professional competence must first be discussed in open session, how that evaluation will factor into a contract or salary negotiation strategy may be suitable discussion for an executive session”. The Committee also violated the Open Meeting Law when, upon prior agreement, each member was ordered to improperly provide private electronic communications on "Survey Monkey" expressing her/his opinions about the professional competence of the former superintendent to Chair Kent, to member Appy and least 5 non-Regional School Committee members including the former superintendent, her 3 attorneys and Pelham Elementary School District member Darius Modestow. On July 13, 2016, at the very first meeting in question, Chair Kent admitted in open session that she and member Appy had secretly deliberated outside of an open meeting with the former superintendent, her 3 attorneys and a Pelham Elementary School Committee member, to make an extremely prejudicial decision, that evaluations provided by the only 2 of 9 non-white Regional Committee members should be disallowed because they "were not compliant." (Exhibit 1 ‘Transcript of Videotaped July 13, 2016 Meeting) This intentional Open Meeting Law violating decision was made secretly by Committee Members under the obvious direction of the former superintendent and her attorneys, for the obvious purpose of obstructing the Committee's evaluation of the professional competence of the former superintendent. The evidence further suggests the former superintendent and Ms. Appy created a racially hostile school committee subterfuge to misdirect public scrutiny away from the former superintendent's and Committee members’ obstruction efforts. Even though the School Committee has been allowing former superintendent Maria Geryk to effectively pre-screen and veto any less than glowing evaluation of her for years, the former superintendent is not allowed by any stretch of the Open Meeting Law or her contract to covertly predetermine, with her close friend Ms. Appy, that Mr. Baptiste's, Ms. Douangmany Cage's and Mr. Robb's superintendent evaluations are "non-compliant". The Open Meeting Law is clear that all deliberations by about the professional competence of a school superintendent must be conducted only during meetings open to the public. See G.L. c. 30A, § 21(a) (1); District Attorney for N. Dist. V. School Committee of Wayland, 455 Mass. 561 (2009) Attorney General Open Meeting Law letter dated May 26, 2011 (Wrentham Board of Selectman); OML 2011-24. ‘There is no dispute that, as a consequence of the Committee's illegal, outside the public view, deliberations, Committee members were compelled by the former superintendent's menacing discriminatory threats against the 2 non-white Committee members, to vote for the $300,000.00 superintendent pay-out in violation of the Open Meeting Law. Newly obtained documentary evidence supports my allegations, that the Committee violated the Open Meeting Law when, at meetings held on July 13, July 20, August 1 and August 9, 2016, the Committee failed to follow proper procedures in convening executive sessions. Meeting notices and stated reasons for the sessions were insufficiently specific and "the committee failed to bear its burden of showing that it properly entered into executive sessions... for permissible purposes under the open meeting-law, given that the committee gave no precise statements during the open meetings of the reasons for convening in executive sessions." See District Attorney v, School Committee of Wayland, 455 Mass. 561 (2009) Executive session meeting notices (Exhibit 2) dated July 13, July 20 and August 1, 2016 are insufficiently specific because they do not identify the specific name of the "nonunion personnel" the Committee planned to "conduct contract negotiations with” in executive sessions, and the Chair failed to first announce and then vote for (with a quorum) in open session, the specific purpose for going into the executive session meetings. (Exhibit 3 Executive Session Minutes) See G.L.c. 30, §§ 21(a), 21(b) (3) Prior to convening in executive session meetings held jointly on July 13, July 20, August 1 and August 9, 2016, between the 9-member Regional School Committee (for grades 7-12) and the 6-member fictitious "Union 26" Elementary School Committee (for grades k-6), the Regional Chair and "Union 26" Chair, independently failed to first announce and then independently vote for (with independent quorums on each committee) in open session, the specific purpose for going into the executive session meetings. Please be advised the fictitious "Union 26" is not a "public body" as defined by G.Le. 304, § 18, because, "The education system for students in kindergarten through grade six" of Amherst, and individually of Pelham, "is structurally a department of the [individual] town...The area served by the Amherst Public Schools is coterminous with the Town of Amherst." (Exhibit 4: "Amherst School District Legal Status") "The area served by the Pelham Public Schools is coterminous with the Town of Pelham." (Exhibit 5: "Pelham School District Legal Status") By e-mail (Exhibit 6), Acting Superintendent Mike Morris confirms, "The three budgets that the district administration manages are the Amherst Public Schools, the Pelham Public Schools, and the Amherst-Pelham Regional Schools. ‘There is no separate budget line for Union 26." An emailed "Interoffice Memorandum" (Exhibit 7) to the School Committee from Sean Mangano, Finance Director, reports that, "The FY17 obligation of $295,000 [for the superintendent pay-out] will be split across the three Districts...according to the standard central office cost allocation methodology (6.4%/42%/4%)... Region ($159,429)... Amherst ($124,000)...Pelham ($11,809)." The September 2011 proposed "Policy BEAA" establishing a "Union 26" Superintendent Union (Exhibit 8) was never voted on, and therefore, no "Union 26" Union exists as any kind of legal entity or any kind of approved subcommittee. Should the Honorable Division of Open Government somehow mistakenly find that the imaginary "Union 26" Elementary School Committee is a "Public body", the minutes (Exhibit 9) of the open session meeting held on August 9, 2016 prove the "Union 26" Committee failed to achieve a quorum vote (4 of 6 members) to lawfully enter into executive session or to deliberate in secret with the Regional School Committee. Minutes from executive session meetings on July 13, July 20 and August 1, 2016 likewise prove "Union 26" failed to ever achieve a quorum vote to enter into executive session. In accordance with OML 2016-121 (September 8, 2016), a "public body" may "enter executive, or closed, session provided that it has first convened in an open session, that a majority of members of the body have voted to go into executive session, and that the vote of each member is recorded by roll call and entered into the minutes. G.L. c. 30A, § 21(b) Before entering the executive session, the chair must state the purpose for the executive session, including all subjects that may be revealed without compromising the purpose for which the executive session was called, and the chair must publicly announce whether the open session will reconvene at the conclusion of the executive session." ‘The minutes (Exhibit 9) of the open session meeting held on August 9, 2016 also prove the "Union 26" Committee failed to achieve a quorum vote (4 of 6 members) in support of the over $300,000.00 superintendent pay-out. In fact, "Union 26" declared they didn't have a quorum to vote on the pay-out and they reconvened the following week to vote for the pay-out. Regardless, the Open Meeting Law does not permit 2 different "public bodies" to mix and match to achieve quorums like the Regional School Committee and "Union 26" incorrectly did in the current matter. When 2 different "public bodies" join together. to "deliberate", each individual "public body" is required to individually obey the Open Meeting Law when entering into executive sessions and voting. Please be advised "Union 26" Chair Darius Modestow resigned from the Pelham Elementary School District Committee a few days after an imaginary "Union 26" representative signed the superintendent pay-out settlement/separation agreement. The signed settlement/separation signature page has not been released for public review. I herein assert, therefore, that "Union 26" signatures representing a non- legal entity on Ms. Geryk's original contract five years ago and on the settlement/separation agreement a few weeks ago, render both legal documents null and void. This troubling "Union 26" controversy further suggests a conspiracy by the former superintendent, her attorneys and Ms. Appy to commit unfair or deceptive acts in a scheme to extort over $300,000.00 from the Regional School District, the Amherst Elementary School District and the Pelham Elementary School District. As further evidence of the former superintendent's, her attorneys’ and Ms. Appy's conspiracy to commit unfair or deceptive acts, Sarah Dolven, the Committee's only member attorney and "swing-vote" in favor of the pay-out, made the following claims of "deception" in her resignation letter on August 14, 2016, 5 days after voting for the pay-out on August 9, 2016 (Exhibit 10): "I resigned on Wednesday evening because I felt that I could no longer ethically continue participating in the process. I am truly heartsick about the level of dysfunction in this committee, and the level of suspicion, mistrust and deception that is apparent." As evidence of the intentional nature of member Appy's and the Committee's Open Meeting Law violations described herein, the Attorney General's previous October 26, 2015 OML 2015 - 159 ruling against Ms. Appy and the Committee, proves Ms. Appy and the Committee continue to violate the Open Meeting Law in the exact same manner they violated the Open Meeting Law in 2015. ‘A public body may enter into executive session to "conduct strategy sessions in preparation for negotiations with nonunion personnel or to conduct collective bargaining sessions or contract negotiations with nonunion personnel." G.L. ¢. 30, § 21(a) (2). However, the law does not authorize a public body to approve a contract based on 14 hours of extortion threats in executive session. See OML 2011-28 (finding that a school committee violated the Open Meeting Law by voting to approve a superintendent's contract addendum in executive session). Although a public body may reach the terms of a contract in executive session, a contract does not become effective until it is publicly ratified. Documentary evidence confirming Committee members felt personally demeaned and threatened by other Committee members and school attorneys is gleaned from the transcript of the July 13, 2016 open session meeting (Exhibit 1), and from the July 13, July 20, August 1 and August 9, 2016 Executive Sessions Minutes (Exhibit 3) and August 9, 2016 Open Session Minutes (Exhibit 9). ‘The joint Amherst Regional School Committee and "Union 26" Committee jointly violated the Open Meeting Law when the two different committees jointly voted in executive session on July 20, 2016 for the $300,000.00 superintendent pay- out. See OML 2011-28. If a vote is improperly taken in executive session, like it was on July 13, 2016, a public body may cure the violation of the Open Meeting Law. To do so, the public body must take an independent, deliberative action, and not merely engage in a ceremonial acceptance or perfunctory ratification of a secret decision. See Pearson v. Board of Selectmen of Longmeadow, 49 Mass.App.Ct. 119, 125 (2000) (citing Tolar v. School Bd. of Liberty County, 398 So.2d 427, 429 (Fla. 1981)). Here, the Committee failed to provide any in-depth discussion of the contract dispute, ever! Prior to both the August 1 and August 9 2016 Executive Session Meetings, Chair Kent sent out a confidential email (Exhibit 11) at the outset of public discussion, that the Committee had already formed a legally binding agreement: "CONFIDENTIAL... "I would like to inform the committee that the Superintendent has accepted our financial offer that was voted unanimously in executive session on July 13, 2016 in response to her request for separation from the district. Please review the attached agenda in which I have allotted 30 minutes for the executive session and the remainder of the meeting will be in open session. The agenda reflects entering executive session to propose questions to our attorney regarding the terms of the standard separation agreement. We will entertain no amendments to the agreement until there is an up or down vote of the presented document in executive session because we have spent over 11 hours of deliberation on this topic. We will then proceed to public session to vote the agreement and share a statement with the publi Counsel for the Committee should have reaffirmed the point by stating "to vote in public at this point ... [would be] in effect formalizing or ceremonially approving a contract that has already been approved by the Committee." Although the Committee took steps to ratify the settlement in open session, they did so with the presumption that the legally binding settlement was already in effect. The Committee's vote to ratify the settlement in just 10 minutes in open session after being subjected to extortion threats during 14 hours and 4 executive sessions and being deprivetl of competent legal counsel, was merely a perfunctory ratification, and therefore did not effectively cure the violation of the Open Meeting Law. In my August 15, 2016 Complaint I wrote, "At the executive session of July 13, 2016, Attorney Colomb presented copies of Ms. Geryk's "SMOKING GUN THREATENING EMAIL" sent to him [2 weeks earlier on June 27, 2016] by his law partner Regina Tate. The email [Exhibit 12] from Attorney Michael Long who jointly represents former superintendent Maria Geryk reads: Gini, "I will forward a formal demand letter on Maria Geryk’s behalf, but wanted to follow up on our discussion of last week before you meet with the three chairs...A non-exhaustive list of claims/causes of action includes: contract violations related to evaluation [my emphasis], violations of Maria's liberty/reputation interests protected by the 14th amendment and section 1983, defamation, invasion of privacy, interference with contractual relations, illegal racial discrimination under c.151B and Title VII, constructive discharge, violations of the OML and state ethics laws under c. 268A, intentional’and negligent infliction of emotional distress...Please excuse the informal tone, I am trying to get something to you for your meeting this morning.” I also submit Attorney Long's "SMOKING GUN EXTORTION DEMAND LETTER" (Exhibit 13) into evidence for your review and review by the Office of the Attorney General, Criminal Bureau. While I am not an attorney, I find Attorney Long's extortion threats to be frivolous, made in bad faith, laughable (except for the grievous harm it has caused our school community) and unsupported in any wild, extreme interpretation of the law! But, instead of boring you and offering my laymen's interpretation of Attorney Long's phony extortion threats, I ask you to please consider an excerpt from a Commentary written by Andrea Battle, Michael Burkart and Pat Ononibaku, published on September 15, 2016 in the Amherst Bulletin (Exhibit 14): "In spite of the vilification of Trevor Baptiste and Vira Douangmany Cage, (the only two current school committee members of color), many whites have offered critiques of Ms. Geryk's performance. The leaders of the opposition to the proposed mega-school are white parents. School committee member Steven Sullivan voted against paying out the $300,000 settlement to Ms. Geryk, and Pelham School Committee member, Dan Robb, has written a less- than-positive performance evaluation, calling into question some of the same points described here...In summary, the larger issue is a failure in leadership. That deficiency has led to the growing resistance to [Ms. Geryk's] administrative style from many quarters. No wonder she left." I also submit into evidence a racially divisive letter written by School Committee members Appy, Kent, Dolven, Ordonez and Hazzard (Exhibit 15) addressed to Mitchell Chester, Commissioner of the Department of Elementary and Secondary Education, that proves a quorum of Regional School Committee members knew that their improper and secret deliberations with the former superintendent would create a racially hostile school environment in which to conceal their deceitfully predetermined (prior to July 13, 2016) decision to pay Ms. Geryk whatever she asked for while keeping the School District's insurance company out of the loop so as to not invoke the binding arbitration clause of the parties’ contract. Whereas, "An intentional violation is an ‘act or omission by a public body or a member thereof, in knowing violation of the Open Meeting Law.' 940 CMR 29.02. [and] an intentional violation may be found where the public body has ‘acted with specific intent to violate the law [or] acted with deliberate ignorance of the law's requirements,’ See OML 2015 - 139 Dudley Planning Board", the Regional School Committee kriew that their improper secret deliberations described herein are not permitted under the Law, and the Amherst-Pelham Regional School Committee's corrupted 4-3 vote "intentionally" violated the Open Meeting Law. Whereas, "The exceptions in section 23B are not to be used as a subterfuge to retreat from an open meeting into an executive session." District Attorney for N. Dist. V. School Committee of Wayland, 455 Mass. 561, 566 (2009), the Committee's intentionally repeated Open Meeting Law violations and subterfuge into secret meetings cries out for nullification of the Committee's 4-3 vote taken immediately after illegal closed door deliberations. See OML 2015-139 Dudley Planning Board Respectfully submitted,