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State rules county council violated Open Meeting Law

The March 13 decision comes six months after John P. O’Rourke, the Council of Government’s former electricity program director, filed an Open Meeting Law complaint alleging the panel improperly met and voted in executive session. One of the purposes of the sessions was “the dismissal, discharge or termination of the employment of the director of electricity,” according to a ruling written by assistant attorney general Jonathan Sclarsic.

O’Rourke, of Conway, hired for the job in February 2012, was laid off Aug. 19, 2013, after three closed-door meetings that month by the executive committee of the Council of Governments during which there was discussion and votes on the reorganization of its electricity department. O’Rourke is the chairman of the Conway Baord of Selectmen.

The Hampshire Council of Governments then voted in open session on Aug. 22 to support the executive committee’s decision about reorganizing the electricity department, which involved hiring consultants and eliminating O’Rourke’s position.

The Division of Open Government ruled that the executive committee’s stated purpose for going into a closed-door session — the trade secret exemption — was improper.

The council, the ruling states, “has not presented specific facts to support its contention that its discussion of restructuring the electricity department and terminating the director concerned ‘trade secrets or confidential, competitively-sensitive or other proprietary information.’ ”

Sclarsic’s ruling states that the Massachusetts Supreme Judicial court has identified six factors for consideration in determining whether something is a trade secret and that the Hampshire Council of Government’s response to O’Rourke’s complaint failed to meet any of the requirements for that Open Meeting Law exemption.

“The Council has failed to demonstrate the need for secrecy regarding the reorganization of the Electricity Department,” the ruling states.

“... it appears that the primary reason for secrecy was to prevent employees of the Electricity Department from learning about the proposed reorganization, rather than to protect this information from disclosure to competitors,” Sclarsic wrote.

The Council of Governments offers a municipal aggregation program providing bulk electricity and an optional green energy program to 37 communities in western Massachusetts.

O’Rourke, who is chairman of Conway’s Select Board, on Tuesday applauded the ruling, but added that he believes the attorney general office should have ordered his reinstatement. He declined further comment, saying that the legal process continues.

In his complaint, he requested the Division of Open Government to order his reinstatement. Instead, the attorney general’s office ordered the Council of Governments to compensate O’Rourke for the three days between the closed-door vote eliminating his job and the public vote. The amount of money owed O’Rourke is not known.

Todd Ford, executive director of the Hampshire Council of Governments, said of the ruling by the Division of Open Government, “We are currently reviewing their decision and reviewing our options.” He declined further comment, although he said the reorganization of the electricity department has moved forward.

William R. Barnett of Belchertown, chairman of the Hampshire Council of Government’s executive committee, could not be reached for comment.

Dan Crowley can be reached at dcrowley@gazettenet.com.

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