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Williamstown Board's Executive Session Minutes Don't Reveal Individual Votes

By Stephen DravisiBerkshires Staff
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WILLIAMSTOWN, Mass. — The Select Board met 14 times in executive session between Aug. 17, 2020, and Dec. 4, 2020.
The public record of those meetings shows exactly 28 votes: 14 to move to executive session and 14 to adjourn.
In between, the panel made a lot of decisions on how to respond to a high-profile lawsuit against the town. But either those decisions were made without formal votes or the votes themselves have been redacted on the advice of the town's counsel, board members said this week.
According to minutes from the 37 hours of meetings that were released on Friday, the board made most of its decisions by either the "sense of the Board" or "general consensus," phrases that show up in one form or another more than 45 times in 37 pages of redacted minutes.
Not all instances where the "sense of the Board" is recorded were occasions that may have warranted formal votes.
But there a number of times where the "sense" takes the place of a vote that would have recorded the opinions of individual board members.
On Aug. 17, the first closed-door session, five days after the lawsuit from Williamstown Police Department Sgt. Scott McGowan became public, the Select Board discussed whether to do an independent investigation while the lawsuit was pending.
"The Board's general consensus was that while [insurance attorney Patricia Rapinchuk's] investigative efforts in preparation and defense of the lawsuit would not necessarily satisfy the public's calls for an 'independent investigation,' they would have to suffice for now," the minutes read.
Two weeks later, on Aug. 31, the minutes record that, "Sense of the Board is the Board must direct the investigation through existing Defense Counsel."
On Sept. 14, one month and six lengthy closed-door virtual meetings into the crisis, "Sense of the Board it is too early to begin settlement talks."
On Oct. 8, the minutes record, "Sense of the Board that the Town Manager should continue negotiations with the [Police] Chief for a mutual separation agreement that includes the Chief's future cooperation throughout the litigation."
On Oct. 13, there is a paragraph that begins, "Sense of the Board that the next steps are," and the rest of the paragraph is redacted.
On Oct. 21, the minutes read, "Sense of the board to issue statement regarding Chief [Kyle] Johnson's continued employment."
On Dec. 4, the final executive session before the lawsuit was dropped by McGowan, the minutes say, "It was the sense of the Board that such an independent investigation could be conducted if the lawsuit was settled or otherwise resolved."
The commonwealth's Open Meeting Law requires that all meetings — public and executive session — must have an accurate record of minutes that includes "the decisions made and the actions taken at each meeting, including the record of all votes." Neither the words "sense" nor "consensus" appear in the 11-page OML.
The local Select Board's guide for its operations, approved in May of this year, notes that, "All votes taken in Executive Session shall be recorded roll call votes made part of the records of the Executive Session." And state law governing virtual meetings, as all of these executive sessions were, requires that all votes be cast by roll call.
In 18 sets of minutes for Select Board public meetings currently available on the town's website, the terms "sense" or "consensus" appear just once, in the minutes from a Jan. 4, 2021, meeting, as opposed to the more than 40 times they appear in the minutes from the 14 executive sessions.
Hugh Daley, who served as the Select Board's secretary and drafted the minutes for the executive sessions, said there were actual roll call votes taken during the sessions, but they are included in the two dozen passages of the minutes that were redacted before release to the public.
"Having said that, there were not a lot of things that the board needed to vote on (especially during our information gathering and legal guidance sessions) or should vote on due to constraints by charter and/or employment law," Daley wrote in reply to an email seeking comment.
"I tried to record when consensus was reached but no voting action was taken. I tried to note when there were dissenting opinions. That does not mean it was always unanimous, but it was always at least a majority."
There are indications in the executive session minutes from Oct. 21 that the five members of the board were not always on the same page.
"A lengthy discussion ensued about the best path forward," the minutes read in part. "Town Counsel suggested that the Board needs to make a final 'decision' about its recommendation to the Town Manager as to the Chief's status."
The use of the phrase "final 'decision'" implies that the board had been debating making such a decision, but nowhere in the non-redacted minutes does it indicate what the arguments were or who was making them. Chief Kyle Johnson would stay on the job for another two months after that meeting, finally leaving the town's service under a negotiated settlement in mid-December.
The minutes from that same Oct. 21 meeting go on to say, "Discussion of public appearance and need for unity of purpose. Discussion of individual board members disclosing personal views. Sense of the Board that the Chief must take responsibility publicly."
More information about what board members held what personal views may be included in the redacted sections of the minutes.
Jane Patton was chair of the Select Board during the period of the 14 executive sessions and continues to serve on the panel. She was part of the multiple meetings this summer and fall to review redactions to the minutes that were approved (in full) by the board in either fall 2020 or spring 2021.
Patton said all of the redactions in the publicly released version of the minutes were recommended to the Select Board by the town counsel.
"I don't think there were any full-on redactions that counsel recommended that we opted not to follow," Patton said this week.
"Those recommendations were typically, if not 100 percent, all about personnel record privacy types of things."
iBerkshires' article on the substance of the executive sessions can be found here. 

Tags: executive session,   police chief,   

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