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Assessors did not follow meeting law in dealing with Speidel case, town counsel says

Arlington Town SealHe says action weren't intentional; minutes released

 The Board of Assessors unintentionally failed to follow all state Open Meeting Law procedures when it met April 7 to discuss issues involving John B. Speidel, who had been director of assessments since 2011 until he resigned, town counsel has written.

Douglas W. Heim, the counsel, wrote to the state Monday, July 14, in response to two complaints from Chris Loreti, a former Redevelopment Board member.

To address the failure to release a series of meeting minutes earlier this year, Heim explained that Kevin Feeley, the board's chairman, who would have prepared them, was unavailable for nearly two months because of an April 18 medical procedure requiring hospitalization, rehabilitation and home recovery. Six sets of minutes were released to Loreti and the public.

As to Speidel, Heim wrote that the assessors authorized Feeley to take unspecified employment actions in an April 7 closed session, "but recognizes that it mistakenly failed to follow all Open Meeting Law procedures for entering such executive session.

"Such errors were not an intentional attempt to violate the Open Meeting Law, but rather were the byproduct of attempting to appropriately balance an employee's rights and reputation with the Board's need to examine whether certain employment issues should be explored in an atypical situation."

In the letter to Amy Nable, director of the Office of the Attorney General Division of Open Government, Heim wrote that the board would comply with future closed-session requirements.

Loreti continues plea; Feeley was in hospital

In response, Loreti wrote Wednesday, July 16, that "it appears the Board of Assessors still doesn't understand its obligations under the Open Meeting Law. It continues to refuse to make public any meeting minutes related to ending Mr. Speidel's employment -- even though Mr. Heim has just made public some of this information in his response. I'll be asking the Division of Open Government in the Attorney General's office to intervene."
Issues in the assessments office arose quietly earlier this year and came to a head about April 16, the day Speidel resigned, without announcement. Two days later, Feeley went into the hopital.

On May 21, James F. Doherty resigned without explanation from the Board of Assessors, which he had served since 1993. He has not responded to a number of phone calls requesting to comment.

On July 1, Robert Greeley, a longtime former head of assessments and the brother of Selectman Kevin Greeley, was voted to the seat Doherty had left.

Fourteen candidates for the full-time director's position were trimmed to three finalists, including Doherty. Following some resistance to do so, the resumes of those three were released July 14.

To spur more complete public information about the issue, Loreti filed a June 19 Open Meeting Law complaint alleging the board refused to provide seven sets of meeting minutes. In a July 14 letter to Nable, Heim said six sets of minutes could be released. One meeting, April 28, was canceled.

Counsel explains delay

Heim explained the delay in preparing minutes:

"Given such unusual circumstances, as well as the fact that May and June are the busiest times of the year for the Board in terms of abatements, exemptions and appellate tax cases, as well as taxpayer requested hearings on abatement applications, a number of meeting minutes previously prepared by Mr. Speidel were either not submitted to the Board for review and approval, or not posted on the Town's website in a timely manner.

"For example, while the Board approved meeting minutes for February 24, 2014 on March 10, 2014, Mr. Speidel apparently did not post such minutes prior to his departure .... Similarly, while Mr. Speidel took minutes for the April 7, 2014 Meeting, such minutes were not submitted for review or otherwise provided to the Board, who were required to locate the draft minutes. Hence, the April 7, 2014 minutes were not approved until the June 16, 2014 Meeting due both to Mr. Speidel's departure and the lack of a quorum of members following Mr. Doherty's resignation and given Mr. Feeley's medical needs."

As to the April 7 closed meeting, Heim wrote that the board discussed tax abatements and exemptions. Further, several matters related to Speidel's employment as director were "brought unexpectedly into focus for the Board. Those matters prompted unanticipated discussion of whether or not any action should be taken with respect to Mr. Speidel's employment within the executive session, along with scheduled abatements and exemptions discussions.

"Without improperly disclosing matters in detail which implicate the reputation, character, or privacy interests of Mr. Speidel protected from public disclosure under the Open Meeting Law (O.L. c. 30A § 21(a)(I», Public Records Law G. L. c. 4, § 7(26)(c), and/or employment law generally, during the executive session the Assessors jointly examined whether or not any employment actions were merited with respect to the Director.

"No disciplinary proceeding was conducted at such time, but the Board did contemplate its future options and explicitly authorized Chairman Feeley to discuss their concerns with the Director, gather Mr. Speidel's perspective, and if necessary, accept his resignation if circumstances warranted such action."

Closed-session minutes could be provided to state

A note says the assessors maintain that the April 7 closed-session minutes "remain inappropriate for public disclosure, but will provide them the Division of Open Government upon request."

Heim's explanation continues:

"Authorized by the Board to address the aforementioned concerns, Chairman Feeley conferred with Mr. Speidel. Mr. Speidel elected to retain legal counsel to represent his interests. Subsequently, Chairman Feeley, Arlington's Director of Human Resources, Caryn Malloy, and legal counsel for the Town of Arlington negotiated with Mr. Speidel's counsel, resulting in Mr. Speidel's voluntary resignation effective April 18, 2014, pursuant to a Separation Agreement detailing the terms of such resignation ....

"As previously noted, the Board had authorized Chairman Feeley to accept Mr. Speidel's resignation and Chairman Feeley acted in good faith accordingly. Further, each of the interested parties were represented by counsel and explicitly agreed that the Separation Agreement was both voluntary and confidential unless disclosure was required Iaw. In sum and substance, the Board through its agent - Chairman Feeley, and Mr. Speidel - through his counsel, agreed to a resolve a sensitive and intensely personal employment matter via mutual agreement with no disciplinary proceeding ever conducted."

Heim proposed these remedies:

Writing that the board recognizes that before entering executive session on April 7, Heim says "it should have, at a minimum, stated that in addition to entering executive session to discuss exemptions and abatements, it was also entering such session to discuss the potential discipline or dismissal of, or complaints or charges brought against an employee pursuant to c. 30A §21(a)(1).

"In hindsight, the Board also acknowledges that other procedural measures should be taken under such circumstances in recognition of an employee's rights under the Open Meeting Law. However, the Board respectfully asserts that such [actions] are mitigated both by the unexpectedly immediacy of the concerns at issue and the nature of the employment relationship between the Board and its Director.

"The Board did not expect to discuss employment issues in advance of the April 7, 2014 Meeting. Moreover, it did not conduct a disciplinary proceeding, but rather considered its options and authorized Chairman Feeley to explore resolutions, including whether the Director was amenable to resignation. Throughout, the Board attempted to respect Mr. Speidel's privacy interests inherently recognized by the Open Meeting Law in §21(a)(1), as well as his other legal rights. While the Board clearly erred with respect to the procedural requirements of entering an executive session in this instance, Mr. Speidel retained representation and ultimately entered a voluntary agreement to resign without expressing dissatisfaction with such process from an Open Meeting Law perspective."

Disputes Loreti's claims

Heim's letter takes issue with Loreti's claims about the redactions in Speidel's separation agreement.

Heim wrote: "Meanwhile, contrary to the complaint's allegations, the Board's conduct does not evidence intent to inappropriately conceal its actions or deliberate outside of a public meeting." Further, it says, the board "did not deliberately withhold open session minutes from Mr. Loreti or anyone else, and has never been held in violation of the Open Meeting Law previously."

On June 5, Loreti was provided a copy of the separation agreement at issue in response to his June 2 public-record request. [YourArlington also received it that day.]

"The redacted copy provides the vast majority of the material terms of the agreement, including the amount of financial consideration. The redactions withhold only sensitive personnel information.

"While, Mr. Loreti is presently appealing the redactions to the Supervisor of Public Records, the Board submits that record as produced properly balances of the public's interest in matters such as the financial aspects of a settlement with the privacy interests of an individual employee. See e.g., G. L. c. 4, § 7(26)(c)(establishing the privacy exemption for personnel files and 'materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.')

"Finally, there is no evidence that the Board deliberated with respect to a disciplinary proceeding or any other matter outside of its meetings. Rather at worst, the Board's April 7,
2014 executive session minutes evidence uncertainty about the necessary process for addressing sensitive employment issues.

"The Board understands its errors and will take appropriate measures to ensure future compliance with the Open Meeting Law's requirements, but maintains that it acted in a good faith attempt to balance transparency and employee privacy rights and interests, resulting in an action which has not been obscured from the public and to which there has been no objection by the former employee at issue. As such, the Board respectfully submits that no further action outside of the promise of future compliance is appropriate in this instance."

Opinion, July 11, 2014: Let's be more open

June 28, 2014: Secrecy alleged in director resignation

This story was published Wednesday, July 16, 2014.

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