Spruces Sales Negotiation Sparks Open Meeting Complaint

WILLIAMSTOWN, Mass. — A former selectman has filed a complaint with the attorney general's office alleging violations of the Open Meeting Law in discussion of a plan to obtain a federal grant to purchase and, ultimately, close Spruces Mobile Home Park.

Ken Swiatek of Stratton Road, who last month started a group called Friends of Williamstown Conservation Lands, filed the complaint on Monday, just before a meeting of the Board of Selectmen that drew a large audience and comments from about a dozen members of town boards and the general public.

Swiatek alleges in his complaint that the town demonstrated "egregious, insensitive, secretive treatment of the Spruces residents and town citizens at large" in joining Morgan Management, the owner of the park, in a spring 2012 grant application for Federal Emergency Management Hazard Mitigation Grant money.

Swiatek's newly formed group is dedicated to protecting the so-called Lowry property, the 30-acre town-owned parcel off Stratton Road that is currently in conservation. The town has identified the property as a potential site for development of affordable housing — in part to replace housing units lost at the Spruces.

Swiatek cites two instances in March when the Board of Selectmen entered executive session for the stated purpose of discussing "strategy with respect to litigation (Morgan Management v. Town)." Morgan Management signed a purchase and sales agreement (contingent on FEMA awarding the grant) on March 31. Town Manager Peter Fohlin signed the agreement on April 2, Swiatek's complaint says.

"(I) it seems likely that the purchase of real property was discussed during those two executive sessions during which only a discussion of litigation, but not a purchase of real property, was permitted under the Open Meeting Law based on the voted upon motions," Swiatek writes in a memo accompanying his complaint.

Swiatek asks Attorney General Martha Coakley's office to require the town to withdraw the grant application, fine each violator of the Open Meeting Law $1,000 per occurrence and train all town board members on the provisions of the law.

A call and email to Swiatek was not immediately returned on Tuesday afternoon.

Fohlin was unavailable to speak by phone about the complaint, but in response to an email seeking comment, he wrote that he had been in meetings all day and unable to carefully review the complaint  "Having been out of the office all morning and in meetings this afternoon, I have not yet seen Mr. Swiatek's complaint."

However, Fohlin said the executive session in question would have been permissable in either of two exceptions to the Open Meeting Law.

"The Spruces acquisition and the HMGP grant to fund that acquisition were discussed in executive session on March 12, 2012, in the context of strategy with respect to litigation (Morgan Management v. Town)," Fohlin wrote. "A lawsuit by Morgan against the Town was active at the time. The executive session was appropriate at the time to stop the lawsuit, and also would have been appropriate under the grounds of negotiating the purchase price of real property."

Board of Selectman Chairman David Rempell said Tuesday afternoon that his recollection is that the grant application — which the town considered a longshot at best — was discussed only in the context of how partnering with Morgan Management could help resolve the lawsuit and "get these people out of harm's way."

"Harm's way" refers to a long-standing flooding problem at the Spruces that was especially severe during last year's Tropical Storm Irene, which ultimately forced the condemnation of the majority of the mobile home park's sites. In court documents, Rochester, N.Y.,-based Morgan Management is on record saying it cannot continue to operate the park at its current available occupancy. Prior to Irene, the park had about 220 sites; currently, it has 66 sites that have been reoccupied either by pre-storm residents or new owner-occupants.

Rempell's recollection of the executive session discussions is the same as that expressed by Selectman Tom Sheldon, who chaired the board in March 2012 and spoke to iBerkshires on the Open Meeting Law question after Monday's meeting.

"State Law states that residents of a mobile home park must be given the Right of First Refusal in purchasing the park when it is to be sold," Swiatek writes in a memo accompanying his complaint. Swiatek argued that since Morgan Management has agreed to take $600,000 for the park (whose pre-Irene value was $6.2 million), "a purchase by the residents would not be outside the realm of possibility ... "

"However, the secrecy resulting from the Town's Open Meeting Law violation limited the time frame that the Park residents will have to consider buying the Park themselves to 45 days rather than the full 305 days they should have had. A full 305-day window would have enabled friends of the Spruces residents an opportunity to raise the $600,000 for the residents to buy the Spruces."

Rempell said he did not know whether the Open Meeting Law complaint might reflect on the application, which is currently under consideration by the Federal Emergency Management Agency.

He did say he is optimistic the town will find a way to address its affordable housing needs.

"[Monday] night's meeting was informative in that most people prefaced their statements by saying, 'We need to do something to help these people,'" Rempell said.

"The needs of the town are clear. The needs of the town were clear when the master plan was passed in 2002. ... Whether we get the grant or not, we will continue to have the discussion to meet the needs of the community, and one of the major needs I see is the need for more affordable housing.

In an email to iBerkshires on Wednesday morning, Selectman Ronald Turbin, who spent 23 years as an assistant attorney general for New York State, responded at Fohlin's request because of his familiarity with state laws.

The Massachusetts Open Meeting Law explicitly permits town committees and boards to discuss in executive session issues of pending litigation. Therefore, it was entirely appropriate and legal for the Selectboard to discuss the MEMA and FEMA grant, which is the basis of the potential settlement of the lawsuit brought by Morgan Management against the Town of Williamstown and the Commonwealth in Superior Court, in executive session.

However, even if the Open Meeting Law was violated, and I am confident that it was not, no harm occurred. It bears emphasizing that MEMA and FEMA have not made a final decision as to whether the grant will be awarded. Moreover, if eventually awarded, the Selectboard will still have to vote to accept the terms of the settlement and the benefit of the grant. This debate has not yet taken place, and when it does, will be subject to the Open Meeting Law.

I would like to add that the Selectboard is very cognizant and sensitive to the requirements of the Open Meeting Law. Indeed, we make certain that no substantive issues are discussed among us, unless we are in a public meeting. It should be noted that our semi-annual retreats, in which we have free-wheeling discussions of town issues, are open to the public.

Speaking only for myself, the discussion of affordable housing, disaster replacement housing and the possible use of the Lowry property has only just begun.  It is not close to being decided by town boards and, certainly, by the ultimate authority, the citizens of Williamstown at Town Meeting. Indeed, there is time left to have public discussions of these vital issues. To deviate from this crucial discussion to a debate on the Open Meeting Law is a dangerous distraction.

The focus of conversation and debate should be on the housing and land issues that must be resolved by town boards and the Town meeting in the Spring of 2013.

 

Updated on Wednesday, Dec. 12, 2012, to add Selectman Turbin's email and clarify Town Manager Fohlin's reponse.

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