iBerkshires Appeals Williamstown Board Response to OML Complaint
WILLIAMSTOWN, Mass. — iBerkshires.com on Wednesday filed an appeal with the Attorney General's Office in Boston challenging the Select Board's determination that a May 11 meeting was held in compliance with the Open Meeting Law.
At issue is an executive session held to discuss the town-owned property at 59 Water St., the former town garage site.
At the conclusion of its regularly scheduled meeting, the board went into executive session, citing Purpose No. 6 in the OML, "to consider the purchase, exchange, lease or value of real property if the chair declares that an open meeting may have a detrimental effect on the negotiating position of the public body."
A reporter from iBerkshires.com contacted the board the weekend before the meeting to ask whether such a discussion was premature. The town has one offer to purchase the vacant lot, but the board, which has the authority to accept or reject that offer, had not made any decision to pursue that offer and, therefore, there was no negotiating to be done.
Board Chair Stephanie Boyd replied that town counsel had approved the planned executive session as a proper use of Purpose 6.
After the meeting, following the law's procedure, iBerkshires.com filed an OML complaint with the board. And, at a special meeting on May 21, the body approved a response drafted by town counsel Michele Randazzo at KP Law.
In that response, Randazzo both mischaracterized the initial complaint and supported the complaint's main contention while asserting the board chair has absolute discretion to discuss a property's value in executive session at any time.
Despite Randazzo's claim, iBerkshires.com did not suggest an executive session would never be appropriate. Rather, as indicated in the initial complaint (and emails to the board in advance of the May 11 meeting), it is the timing of this executive session that is at issue. As noted in the appeal to the AGO, the Select Board could have discussed the land's value and the town's negotiating position in executive session either before it had an offer for the site or after it decided to engage with the suitor looking to buy it.
Instead, the board held a closed door meeting at which, likely, the merits of that suitor's offer were discussed before such a discussion was held in open session.
Critically, iBerkshires.com maintains that the transfer of the Water Street lot is a potentially thorny issue for the five-member board.
The lot long has been discussed — including by numerous town officials — as a potential site for commercial development that could add to the property tax base and stimulate economic activity in the Water Street area. In fact, the town's RFP says that such a development would be viewed as favorable when considering proposals and specifically says the Select Board is under no obligation to accept the highest cash offer if another proposal aligns with the town's objectives for the site.
On April 15, the deadline for proposals, the town received one offer, from Williams College, which is proposing it pay $1 million over 10 years for the site, which it intends to use as a new location for its Facilities Department. Such a building, like the current Facilities Building on Latham Street, would be tax exempt and would be far from the kind of "mixed-use" commercial/residential development town leaders frequently have discussed for the site.
As stated in the website's appeal to the Attorney General's Office, "It is a classic 'bird in the hand vs. two in a bush' dilemma: Take the $1 million (well above the assessed value) and take the site off the tax roll or hold out for a better development proposal that may or may not come. Whichever way the board decides, it is bound to take criticism from some residents."
iBerkshires.com contends that rather than have a potentially difficult conversation on the merits of Williams College's offer in public, the Select Board misused Purpose 6 for executive sessions to have an initial conversation about that offer.
Randazzo, the town's attorney, seems to support that contention in the board's response.
"... while it is public knowledge that there was only one proposal submitted in response to the RFP, the Board certainly has the ability to discuss in Executive Session, under Purpose 6, how the fact that there [is] only one proposal could negatively (or positively) impact the total amount of money the Town could negotiate for the sale," the town's response reads, in part.
The RFP spells out a process for considering what the town hoped would be multiple offers to acquire the Water Street lot: Submission and review of proposals; request for additional information from proposers; interview of proposers; notice of award; negotiation and execution of Letter of Intent with primary business terms; negotiation and execution of Land Development Agreement and Purchase and Sale Agreement; closing on sale.
The negotiation phase — where the town's negotiating position legally could be protected by an executive session — clearly follows the "notice of award," the point at which the Select Board decides whether to award the property to a proposer, in the town's self-defined process.
Instead of following that process, the Select Board has met four times since the April 15 receipt of Williams' proposal and has not once publicly discussed the proposal's merits, let alone decided to make the award. In short, there was no "negotiating" to be done, as noted in the original Open Meeting Law complaint, at the time of the May 11 meeting — or since.
When the agenda with the planned executive session was released prior to the May 11 meeting, iBerkshires.com was concerned that the elected officials would use the executive session provisions of the Open Meeting Law to make an end run around that law and discuss the merits of the Williams College proposal behind closed doors rather than have that discussion in front of their constituents.
As a remedy, the website has asked that all involved in the May 11 executive session retrain on the Open Meeting Law and, given the anticipated lag between filing an appeal and receiving a determination from the AGO, that any board action on the Water Street lot in the interim be nullified if the commonwealth agrees with iBerkshires.com in this matter.
Tags: open meeting complaint,
