Possible Illegal Duxbury Selectmen’s Meeting Monday, July 2, 2012 Concerning North Hill?

It looks like the Duxbury Board of Selectmen is contemplating holding what may be an illegal meeting in executive session this coming Monday, July 2, 2012 concerning to the North Hill lawsuit. The following is the text of the body of an email that was sent this morning to the Duxbury Board of Selectmen and the Town Manager concerning the matter:

Gentlemen,

As is pretty much obvious in the inclusion of the word “emergency” in the item, “6:00 P.M. EMERGENCY EXECUTIVE SESSION: To discuss ongoing litigation strategy with respect to Johnson Golf v. Town of Duxbury”, that was added to this agenda on Friday, June 29, 2012, this does not constitute proper, timely, notification for a meeting of the Duxbury Board of Selectmen on Monday, July 2, 2012 (which is the following business day). So, presumably, someone is under the impression that by labeling the newly added item with the word “emergency” this can somehow cure the lack of timely notification for the intended executive session.

The Open Meeting Law (MGL Ch. 30b, Sec. 18, Definitions) defines “emergency” as follows: “Emergency”, a sudden, generally unexpected occurrence or set of circumstances demanding immediate action.  Recently fired former Town Counsel Bob Troy testifying, contrary to expectations, quite fully in his deposition last Thursday, June 28, 2012 (instead of not showing up and/or refusing to say anything) – and flatly contradicting prior testimony by a number of Town employees in his own sworn testimony on that day – might seem like “a sudden, generally unexpected occurrence” to some, but it is hardly a matter “demanding immediate action” by the Duxbury Board of Selectman.

No immediate action is required in the case since it is not slated to go to trial until October and the next scheduled (or soon to be scheduled) events in the case are the continuation of Troy’s deposition (for it is not yet even near complete), the continuation of former Selectman Betsy Sullivan’s deposition, and the start of the deposition of former Selectman Andre Martecchini. These are currently scheduled for the week of July 9-13 and certainly they do not require any action at all, immediate or otherwise, on the part of the Duxbury Board of Selectmen. They do not even involve the Duxbury Board of Selectmen.

In short, it is difficult to come up with any plausible reason to justify a claim that this proposed executive session, clearly [not] noticed on a timely basis under the OML, can properly be held on the assertion of some “emergency”. In fact, the very characterization of the session in the agenda as being “To discuss ongoing litigation strategy with respect of Johnson Golf v. Town of Duxbury” pretty much amounts to prima facia evidence of a routine (“ongoing”) discussion that flatly contradicts assertion of an emergency to excuse the lack of proper, timely notification to the public as required by the Open Meeting Law.

I therefore urge that you ponder the wisdom of going forward with a meeting that is not timely noticed on the questionable assertion of “a sudden, generally unexpected occurrence or set of circumstances demanding immediate action” unless you are quite certain that, in fact, immediate action of the Duxbury Board of Selectmen really is urgently required. Absent such firm conviction a more prudent course would surely be simply to re-schedule the intended executive session with proper notice as required by the Massachusetts Open Meeting Law. Do you think?

Copies of both the original agenda, posted on Thursday, June 28, 2012 and the revised agenda, posted on Friday, June 29, 2012 and therefore too late to meet the 48 hour posting requirement of the open meeting law are as follows:

Here is a copy of the original agenda, posted on Thursday, June 28, 2012:

This is a copy of the revised agenda, posted on Friday, June 29, 2012:

Detailed information about the Massachusetts Open Meeting Law is available on the web site of the Massachuestts Attorney General at: http://www.mass.gov/ago/government-resources/open-meeting-law/