Attachment 1

Copy of OML Complaint

 OPEN MEETING LAW COMPLAINT FORM
Office of the Attorney General
One Ashburton Place
Boston, MA 02108

Please note that all fie lds are required unless other w ise noted.

Your Contact Information:

First Name: Robert Last Name: Nislick (BBQ #6644 14)

Address: P.O. Box 5207

City: Framingham State: MA Zip Code: 01701

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Phone Number: +1 (508) 405-1238 Ext.

Email: rob @nislick.com

Organi zation or Media Affi liation (if any): Attorney for Brooks 5. Read, Susannah Kay, Leslee Robb, Russell Robb, Ill

Are you filing the complaint in yo ur capacity as an individual , representative of an organization, or media?
(For statistical purposes only)

~ Indivi dual D Organization D Media

Public Body that is the subject of this complaint:

~ City/Town □ county D Regional/District Ostate

Name of Public Body (incl uding city/

town, co unty or region, if app licab le): _C_on_c_o
_rd_
Se_le_ct_B_oa
_r_d _ _______ _ _____ ___ _

Specific person(s), if any, you allege Tom McKean, Alice Kaufman, Michael Lawson, Jane Hotchkiss, Linda
committed the vio lat io n : Escobedo

Date of alleged violation: Mar 25, 2019

Page 1
Description of alleged violation:
Describe t he alleged vio lat ion th at th is comp laint is about. If you believe the alleged violat ion was int entiona l, please say so and include
the reasons suppo rtin g yo ur belief.

Note: This text fie ld has a maxim um of 3000 characters.

1. In advance of its March 25, 2019, meet ing, the Concord Select Board published a meeting notice which listed two items :

·1. Call to Order;

2. Adjourn to Executive Session for the purpose of discussing Litigation (Estabrook Road and Open Meeting Law Compla int)".

(A copy of the meeting no tice is attac hed hereto as Exhibit "B" and is also available at https://conco rdma.gov/AgendaCen terNiewFile/Agenda/_03252019-6677) .

2. The Open Meeting Law requi res that: "Notice shall be printed in a legib le, easily unde rstandable fo rmat and shall contain the date, time and place of the
meeting and a listing of topics that the chair reasonably anticipates will be discussed at the meeting ." G. L c. 30A, § 20 (b).

3. "Meeting notices shall be printed or displayed In a legible, easily understandab le fo rmat and shall conta in the date, time and place of such meet ing, and a
listing of topics that the chair reasonably anticipates will be discussed at the meeting. The list of topics shall have suffic ient specificity to reasonably adv ise the
public of the issues to be discussed at the meet ing." 940 Code Mass. Regs.§ 29.03 (1) (b).

4. "Public bodies m ust ident ify in the notice for a meeting the specific executive session purpose they intend to invoke to justify an execut ive session and must
provide as much detai l as possib le to i nform the public of the nature of the executive session discussion w ithout comprom ising the confident iality of the
executive session." OML 2018-146 at 3. · we generally consider a topic to be sufficient ly specific when a reasonable member of the public could read the topic
and understand the anticipa ted nat ure of the public body's d iscussion." OML 2019-24 at 3. "A boilerplate notice topic ... is vague and does not offer the public
an unde rstandi ng of the anticipa ted topics to be discussed at that parti cular meeting." OML 2014-47 at 2.

5. "Topic descript ions must be specific enoug h to advise the public of the issuesto be d iscussed.... The attorney general 's office takes a d im view of catch-all
descript ions ... ." Handbook for Massachusetts Selectmen 11 (4th ed. 2014).

6. "A precise statement of the reason fo r co nvening in executive session is necessary under the ope n meeting law because t hat is the on ly notificat ion give n to
the public that the [public body] wou ld con duct business in private, and the on ly way the public would know if the reason for doing so was proper or improper."
District Attorney for the N. Dist. v. School Comm. of Wayland, 455 Mass. 561,567 (2009).

[Please see Exhibit "A" attached hereto for the complete description of the alleged violations.]

What action do you wan t the public bo dy to take in response to yo ur com plaint?

Note: This text field has a maximum of 500 characters.

1. Declare the executi ve session inv alid because t he meeting notice failed to comp ly w ith G. L. c. 30A, § 20
(b), 940 CMR 29.03(1)(b).
2. Declare the executiv e session inv alid because it failed to comply w ith G. L. c. 30A, § 21 (b) (3).
3. Acknow ledg e that all matters w ithin the session are public.
4. Release all executive session minutes and audiovisual recordings from the executi ve session forth w ith .
5. Ackno w ledg e that it intention ally violat ed the Open Meeting Law .

Review, sign, and submit your complaint

I. Disclosure of Your Complaint .
Public Record. Under most circumstances, your com plaint , and any docum ent s submitted w ith you r comp laint, Is co nsidered a p ublic record
and will be available to any member of th e public upon request.

Publication to Website. As part of t he Open Dat a Init iative, the AGO will publish to its webs it e certai n informat ion regarding your comp laint,
including your name and the name of th e publi c body. The AGO w ill not publish you r cont act info rm ation.

II. Consulting With a Private Attorney

The AGO cannot give you legal advice and is not able to be yo ur private at torney, but represent s the public interest. If yo u have any q uestions
concerning your ind ivid ual legal right s or responsibiliti es yo u shou ld contact a private att orney.

Ill . Submit Your Complaint to the Public Body.

The comp laint m ust be fil ed fi rst w it h t he publ ic body. If you have any qu est ions, please contact t he Divisio n of Open Government by callin g
(617) 963-2540 or by email to openmee ti ng@stat e.ma.us.

and correct t o t he

Signed . f
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y know ledge.

Date:
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By signing below, I acknow ledge t hat I have read and underst oo d t he prov isions above and certify tha t t he informat ion I have prov ided is t rue

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A
 Exhibit "A" - Description of Alleged Violations

1. In advance of its March 25, 2019, meeting, the Concord Select Board published a
meeting notice which listed two items:

"1. Call to Order;

2. Adjourn to Executive Session for the purpose of discussing Litigation
(Estabrook Road and Open Meeting Law Complaint)".

(A copy of the meeting notice is attached hereto as Exhibit "B" and is also available at
https://concordma.gov/ AgendaCenterNiewFile/ Agenda/_ 03252019-6677).

2. The Open Meeting Law requires that: "Notice shall be printed in a legible, easily
understandable format and shall contain the date, time and place of the meeting and a
listing of topics that the chair reasonably anticipates will be discussed at the meeting." G.
L. c. 30A, § 20 (b).

3. "Meeting notices shall be printed or displayed in a legible, easily understandable

format and shall contain the date, time and place of such meeting, and a listing of topics
that the chair reasonably anticipates will be discussed at the meeting. The list of topics
shall have sufficient specificity to reasonably advise the public of the issues to be
discussed at the meeting." 940 Code Mass. Regs.§ 29.03 (1) (b).

4. "Public bodies must identify in the notice for a meeting the specific executive session
purpose they intend to invoke to justify an executive session and must provide as much
detail as possible to inform the public of the nature of the executive session discussion
without compromising the confidentiality of the executive session." OML 2018-146 at 3.
"We generally consider a topic to be sufficiently specific when a reasonable member of
the public could read the topic and understand the anticipated nature of the public body's
discussion." OML 2019-24 at 3. "A boilerplate notice topic ... is vague and does not
offer the public an understanding of the anticipated topics to be discussed at that
particular meeting." OML 2014-47 at 2.

5. "Topic descriptions must be specific enough to advise the public of the issues to be
discussed .... The attorney general's office takes a dim view of catch-all descriptions ...
." Handbook for Massachusetts Selectmen 11 (4th ed. 2014).

6. "A precise statement of the reason for convening in executive session is necessary
under the open meeting law because that is the only notification given to the public that
the [public body] would conduct business in private, and the only way the public would
know if the reason for doing so was proper or improper." District Attorney for the N.
Dist. v. School Comm. of Wayland, 455 Mass. 561,567 (2009).

7. Merely listing the "Estabrook Road" litigation in the meeting notice is vague and not
sufficiently specific to comply with the notice requirements of G. L. c. 30A, § 20 (b), or
to justify an executive session under G. L. c. 30A, § 21 (a) (3).
8. The meeting notice did not contain a listing of topics related to the Estabrook Road
litigation that would be discussed in executive session, in violation of G. L. c. 30A, § 20
(b), 940 Code Mass. Regs. § 29.03 (1) (b). The Concord Select Board and its chair could
reasonably have anticipated many topics related to the Estabrook Road litigation.
Notwithstanding, the meeting notice contained insufficient specificity to reasonably
advise the public of the issues to be discussed in the executive session, in violation of G.
L. c. 30A, § 20 (b), 940 Code Mass. Regs.§ 29.03 (1) (b). The meeting notice provided
no detail to inform the public of the nature of the executive session discussion. Cf. OML
2018-146 at 3. A reasonable member of the public could not read the topic and
understand the anticipated nature of the public body's discussion. Cf. OML 2019-24 at 3.

9. For the same reasons, merely listing "Open Meeting Law Complaint" in the meeting
notice is vague and not sufficiently specific to comply with the notice requirements of G.
L. c. 30A, § 20 (b), or to justify an executive session under G. L. c. 30A, § 21 (a) (3). For
example, as of March 25, 2019, there were two pending open meeting law complaints.
The first one was filed with the Concord Select Board on December 6, 2018, and with the
Attorney General on February 25, 2019. The second one was filed with the Concord
Select Board on January 14, 2019, and with the Attorney General on March 1, 2019. The
meeting notice was so unspecific that no member of public could know which "Open
Meeting Law Complaint" the Concord Select Board planned to discuss in executive
session, let alone have an understanding about the nature of the anticipated discussion.

10. At the meeting, Chair McKean stated: "Calling the meeting for March 25, to order.
It's 6 P.M. We are going to adjourn to an executive session. So I'll entertain a motion to
enter executive session to discuss strategy with respect to pending litigation regarding
Estabrook Road, Town of Concord versus Rasmussen et al, pending on Land Court. And
on the matter of Open Meeting Law Complaint. We have given permission to have this
matter recorded by the people in the audience, for this purpose." Concord Select Board
Member Michael Lawson stated: "I move to enter executive session to discuss strategy
with respect to pending litigation regarding Estabrook Road, Town of Concord versus
Rasmussen et al, pending in Land Court. And on the matter of Open Meeting Law
Complaint." Another member stated: "Second". Chair McKean stated: "The Open
Meeting Law requires a roll call vote in order to go into executive session. Before the
roll call, let me state, in the executive session, the board will discuss with counsel
strategy in the pending litigation. An open meeting may have detrimental effect on the
litigation position of the town. Would the clerk please call the roll." All members voted
"Aye". Then Chair McKean stated: "At the conclusion of the executive session, the
board will not reconvene to adjourn. We will be entering into executive session, and we
will ask the audience to depart. Thank you." (A copy of the audio of the March 25,
2019, meeting, is attached to the e-mail by which this complaint is being filed, and is also
available at https:/ /www .dropbox.com/s/739ld6i9g4e 14hqN oice%20001 _ sd.m4a?dl=0).

11. "A public body may meet in closed session for 1 or more of the purposes enumerated
in subsection (a) provided that: ... 3. before the executive session, the chair shall state
the purpose for the executive session, stating all subjects that may be revealed without
compromising the purpose for which the executive session was called". G. L. c. 30A, §
21 (b) (3).

12. Before the executive session, the chair of the Concord Select Board, Tom McKean,
failed to state any or "all subjects that may be revealed" in the executive session, in
violation ofG. L. c. 30A, § 21 (b) (3).

13. Merely identifying the Estabrook Road litigation without providing any more detail
about all subjects that may be revealed, does not satisfy G. L. c. 30A, § 21 (b) (3).

14. Vaguely and ambiguously referring to "the matter of Open Meeting Law Complaint"
without providing any more detail about all subjects that may be revealed, does not
satisfy G. L. c. 30A, § 21 (b) (3).

15. The complainants believe the Concord Select Board committed an intentional
violation of the Open Meeting Law. See G. L. c. 30A, § 18. The Concord Select Board
acted with specific intent to violate the law and/or with deliberate ignorance of the law's
requirements. See 940 Code Mass. Regs.§ 29.02 (a), (b).

16. Complainants brought to the Concord Select Board's attention, through two previous
open meeting law complaints, that, "before the executive session, the chair shall state the
purpose for the executive session, stating all subjects that may be revealed without
compromising the purpose for which the executive session was called;" See G. L. c.
30A, § 21 (b) (3); [First] Open Meeting Law Complaint dated December 6, 2018, filed
with Attorney General February 25, 2019; [Second] Open Meeting Law Complaint dated
January 14, 2019, filed with Attorney General March 1, 2019.

17. In response to complainants' first Open Meeting Law Complaint dated December 6,
2018, the Concord Select Board acknowledged and conceded, "that it failed to adhere to
some of the formalities in entering into executive session and will be careful to adhere
with more precision in the future, including by utilizing the attached sample motions
(Attachment 2)."

18. The town also conceded, on February 4, 2019, in Plaintiff Town of Concord's
Response in Opposition to Defendants' Motion for Discovery Orders: "As the Town has
explained in its responses to the Defendants' OML complaints, there was some oversight
of minor formalities in entering executive session". (See Town of Concord vs. Neil E.
Rasmussen, et al, Land Court Case No. 17 MISC 00605 (HPS), Plaintiff Town of
Concord's Response in Opposition to Defendants' Motion for Discovery Orders at 10).

19. Additionally, the board and its chair knew that they could not lawfully enter
executive session unless they complied with G. L. c. 30A, §§ 20 (b), 21 (b) (3). They had
actual knowledge of the Open Meeting Law because, according to the Town of Concord
Committee Handbook,§ 11.D.4. "All members of public bodies must sign the Attorney
General's certification form stating that they've received and read the Open Meeting
Law, the Attorney General's regulations, and the Attorney General's Open Meeting Law
Guide. All three of these documents are provided in the back of this Handbook." (See
Town of Concord Committee Handbook,§ 11.D.4.at 24 (Oct. 2018), available at
https://concordma.gov/DocumentCenterNiew/17369/2018-Oct-Committee-Handbook---
OML-Updates ).

20. Additionally, the Concord Select Board chose not to record or broadcast its March
25, 2019, meeting, which is inconsistent with its regular and ordinary practice. An audio
recording exists only because complainants attended the meeting and asked for
permission to record it.

21. The Open Meeting Law was enacted "to eliminate much of the secrecy surrounding
deliberations and decisions on which public policy is based." Ghiglione v. School
Comm. of Southbridge, 376 Mass. 70, 72 (1978).

22. Audio from the March 25, 2019, meeting, demonstrates that the Concord Select
Board recited language from the Open Meeting Law in an attempt to legitimize secrecy
rather than to eliminate it.
B
 TOWN OF CONCORD
SELECT BOARD
AGENDA
March 25, 2019 - 6 p.m. - Select Board Room - Town House
1. Call to Order
2. Adjourn to Executive Session for the purpose of discussing Litigation (Estabrook Road and Open Meeting
Law Complaint)

PENDING
Tuesday March 26 7 am-8 pm Annual Town Election All Precincts
Monday April 1 7pm Select Board Meeting Town House
April 8, 9, 10, 11 6:30 pm Select Board Meeting CCHS - Room 242
April 8, 9, 10, 11 7pm Town Meeting CCHS - Gymnasium
Monday April 15 All Day Patriots Day Town Offices Closed
Monday April22 7pm Select Board Meeting Town House
Monday May6 7pm Select Board Meeting Town House
Supporting materials for agenda items are available online at www.concordma.gov/sbmtgdocs. Materials
are uploaded on the Friday before a Select Board meeting.