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AG: Conway violated Open Meeting Law

CONWAY — The state Attorney General’s Office has ruled the selectmen violated the Open Meeting Law by failing to post notice the topic of a meeting where it discussed the termination of former Town Administrator Edward MacDonald.

But the state found the board did not deliberate or hold “secret meetings” to agree to end MacDonald’s employment.

The board is not fined or punished by the state for the violation.

Rather, the Attorney General’s Office ordered the board to comply with the Open Meeting Law in the future and cautioned it that if it commits a similar violation, it could be considered an intentional violation.

It also encouraged the three-member board, made up of O’Rourke, Jim Moore and Rick Bean, to review the Attorney General’s Open Meeting Law training video.

Overall, Selectboard Chairman John O’Rourke said he was pleased with the attorney general’s finding.

“The conclusion of the Attorney General concerning the Open Meeting Law complaint of Edward MacDonald fully exonerates the actions of the Board of Selectmen in relation to not accepting the 30-day notice of Edward MacDonald after discovering that he had not resigned from his position as town administrator of Chester,” said O’Rourke said.

O’Rourke said he’d accept the fault for failing to post proper notification of a discussion at a January meeting.

“As chair of the board, I will take the hit for that oversight,” O’Rourke said. “However, in the far more serious matter of ‘deliberating outside of a noticed meeting,’ the board was fully cleared of any violation.”

MacDonald did not return calls for comment.

History of complaint

On Jan. 7, MacDonald resigned as town administrator after 47 days on the job. He gave the Selectboard a 30-day notice. But on Jan. 14, the board voted to not accept MacDonald’s 30-day notice after learning he was still employed as town administrator in the town of Chester.

On March 9, MacDonald filed a complaint with the attorney general, alleging that his former employers violated the Open Meeting Law. MacDonald claimed the board terminated his employment on Jan. 14 without providing proper notice of the discussion to the public and that the board deliberated outside of a legally arranged meeting to discuss terminating MacDonald’s employment.

MacDonald also alleged that the Selectboard deliberated outside of a posted meeting by agreeing to add Ron Sweet as a candidate for the interviews for the highway superintendent job before its Jan. 7 meeting. The attorney general declined to review this last complaint because it was not raised in the initial complaint filed with the Selectboard and were untimely.

“However, we remind the board of its obligations under the Open Meeting Law,” Assistant Attorney General Jonathan Sclarsic writes in the finding. “Public bodies are required to list topics in a meeting notice with sufficient specificity to reasonably advise the public of the issues to be discussed.”

The state found that the board violated the law by not providing notice of a discussion on MacDonald’s termination for the Jan. 14 meeting.

The law requires that government groups post notice 48 hours before a meeting and include a list of topics that the chair expects will be discussed.

Selectboard Chairman John O’Rourke, in his response, said MacDonald was responsible for preparing the meeting agenda. After handing in his resignation to the board on Jan. 7, O’Rourke said MacDonald should have included his employment as a topic for the Jan. 14 meeting without his prompting. However, the state said while the board can delegate the task to MacDonald, O’Rourke, as the chair, still has an obligation to inform MacDonald what he expects will be discussed at a meeting.

The attorney general found that O’Rourke should have updated the meeting to include MacDonald’s resignation as a topic. The state ruled that O’Rourke could anticipate MacDonald’s employment as a topic after discovering MacDonald’s second job on Jan. 10 and later speaking with town counsel and the personnel committee chair on Jan. 14 about his employment and contract.

Regarding the second complaint, the state found O’Rourke’s claim that the decision to terminate MacDonald’s employment was solely his and did not involve “secret meetings” as credible.

“It appears that (O’Rourke) discovered information that he brought to the board’s attention during its Jan. 14, 2013 meeting, and that the board agreed in a public meeting to accept MacDonald’s resignation. We therefore find that the board did not violate the Open Meeting Law with respect to this allegation,” Sclarsic writes.

You can reach Kathleen McKiernan at:
kmckiernan@recorder.com
or 413-772-0261 ext. 268.

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