Select Board Executive Session Meeting Minutes 3/23/22 (12noon)
Select Board
Executive Session Minutes of 3/23/22 – 12PM Meeting
Meeting Opened at: 12:00pm
Location: Town Hall Meeting Room
Select Board Members Present: Steve Weisz, Chair, John Weingold, and Justin Makuc
Also Present: Town Counsel Attorney Brian Maser, Melissa Noe, Shawn Tryon, Don Coburn, Hillel Maximon
Steve made a motion to go into Executive Session for the reason MGL c. 30A, section 21, Reason number one to discuss reputation, character, physical condition or mental health rather than professional competence of an individual, or to discuss the discipline or dismissal of, or complaints or charges against a public officer, employee, staff member or individual. No one who had received notice for the Executive Session indicated that they wanted the meeting to be in open session. The Board agreed that it will not be returning to open session. The vote was taken to go into Executive Session: Steve yes, John yes, Justin yes.
Attorney Maser clarified that noticed individuals have an entitlement to either counsel or representative for purposes of advising them, but not for purposes of active participation in the session. Melissa has chosen to have Don to represent her and Shawn has asked that Hillel be here to be his representative.
There was discussion about who had received notice related to this Executive Session. Attorney Maser noted that besides who was at the meeting, Kevin Fitzpatrick and Terry Walker had received notice.
Melissa asked if she could have a copy of the report so that she could follow along. Attorney Maser noted that he had prepared a redacted copy of the report and could print it out with assistance if that is what the Board wanted to do.
Justin asserted that each person who received notice has very different circumstances and is mentioned in different ways in the report. Justin thought it would be more appropriate to call in each individual one at a time to deal with their unique situation, and if they want to have an open session or have a representative at that time, then that would be welcomed. Attorney Maser said that this process, and how exactly it should be done, is something that the Board needs to work through. It may depend on if people who are the subject of the report desire privacy or if they are fine having others in the room.
Steve said that it is his understanding that this meeting is to accept the report, which he figured would include disseminating the report to those who are its subjects. Justin inquired if it should be redacted for each individual.
Steve pointed out that the investigation has a conclusion and he argued that the town should look for remedies based on the conclusions and recommendations of the report, rather than focus on the individuals involved and their actions. Justin replied that he thought each individual should be dealt with separately because each individual is involved in a completely different way. Steve argued that the Board should focus only on the conclusions and policy recommendations at the end of the report. Justin thought that, depending on the severity of individuals’ actions as laid out in the findings of the report, it might be appropriate for the Select Board to issue letters to some individuals so that the Town and its employees are on the same page as to what has occurred and that there will be consequences for continuing misconduct.
Steve asked about producing copies of the report to the noticed individuals. Attorney Maser noted that the subjects should be given a copy of the report for purposes of being able to respond to the findings of the investigator. Attorney Maser noted that the Board could distribute the report in redacted format to the individuals or without redaction. Melissa asked why it would be redacted. Attorney Maser stated that generally names of individuals who actually filed complaints or who came forward voluntarily to provide information are redacted. Justin responded that he felt the report should be redacted for each individual because, while much of the information may be public knowledge, there may still be individuals who came forward with complaints that should be redacted.
Steve noted that there is a specific prohibition against retaliatory actions. He did not want individuals who filed complaints to be retaliated against, especially since everybody knows who the actors are. Steve thought it is appropriate to release the report to noticed individuals without redaction, but asked Attorney Maser if there will be specific prohibitions on individuals sharing the report: What can they do with it or not? Attorney Maser noted that there a exemptions making the report not a public record right now, and that it could be redacted even if provided to the subjects of the complaints.
Justin argued that each subject of the investigation should be able to view a redacted version of the report pertaining to the charges and claims brought against them, and then the Board should meet with each subject to discuss the report’s findings so that everyone can be on the same page.
Attorney Maser recommended that if there was agreement to run the process this way then it should be a motion and voted on.
Steve said he was looking for resolution to the investigation within a short time span and he felt that meeting with each subject of the investigation would stretch the timeline beyond the existing Select Board’s term. Steve’s recommendation would be to discuss the conclusions rather than the individual findings and complaints. Steve thought it was most important to start implementing the recommendations of the investigator. Steve is concerned that if the Board was busy having individual executive session meetings, that the recommended solutions would be delayed. Steve said that the report confirms the fact that the Select Board should not be involved in human resource matters. Steve said in an effort to move the town forward and get to the solutions, he would move that the Select Board look at the conclusions.
Justin thought that part of moving forward is a clear line of communication and understanding by employees of what is expected of them, to deter misconduct from happening in the future and to be able to deal with it if it does.
Steve stated that the report is clear that everybody involved is at fault, as everybody messed up in some fashion. Steve did not think that the findings of the report should be in anyone’s permanent record. Steve suggests participationparticipate in mediation, hiring of human resources, and having a written code for dealing with harassment. Steve stated that the goal is finding solutions rather than getting stuck in the weeds of what happened in the past. Steve was concerned that individual executive session meetings to deal with the findings based on each employee would result in futile squabbling, keep the animosity alive, and potentially spread into the next Select Board.
Justin thought that it was important to communicate clearly to employees based on the findings of the report so that bad behavior could be prevented from reoccurring, and that there could be ways to deal with it if it was reoccurring. Steve thought that this would not get the Town anywhere further and would only mire the Select Board in the past. Justin countered that the Town may be subject to liability and actionable claims, and thought that we should not just move on and forget those liabilities, but rather try to limit them. Steve suggested to follow the specific recommendations in this report and he thought that doing so could actually reduce the Town’s liability.
Attorney Maser stated that taking corrective action at this point would not completely insulate the Town from claims that could potentially be advanced. Attorney Maser also noted that the Select Board is not bound to just follow the recommendations of the investigation, and that the Board could take additional action beyond what is written in the report.
Justin asserted that, although it was not an explicit recommendation of the report, one common sense thing to do would be to communicate with the people who have potentially opened the town to liability about what they have done that has opened the town to liability, so that it does not happen again. Steve disagreed with Justin and thought that having discussions and issuing warnings to employees is setting the town up for liability, as the employees may disagree with the findings of the report, or they may feel that the investigation was not thorough enough. Steve would rather focus more on the conclusions and the recommendations from the investigator. Justin responded that the Select Board needs a commitment from employees to take corrective action and conduct themselves better, and in a way that does not open the Town to liability.
John asserted that Steve wants to jump to the conclusions of the report because Steve himself was found to have opened the Town to liability. John stated that the ultimate conclusion was based on a false pretense. Steve disagreed with John and stated that there are six or seven specific recommendations listed in the report to help the Town and its employees move forward in a positive way. Steve argued that since the Select Board hired someone to do the investigation, the Board should consider theirher recommendations.
John asked Attorney Maser, what is the legal standard for determining cause? Attorney Maser said that he is a Labor Employment lawyer so he is familiar with the definition of cause, but he turned the discussion back to the procedure. Attorney Maser said that the next step for the Select Board, since it has received the report, is for the Board to accept the investigator’s findings. Then based on the findings, the Board can decide how it wants to move forward. Attorney Maser asked the Board to consider if there is a reasonable basis or justification to do something more than enact policy changes or create human resources position. Attorney Maser asserted that the next steps were to decide if and how to disseminate the report to the subjects of the complaints, and then the Select Board should decide what it wants to do with the findings.
Steve asked how the report could be redacted for each individual subject of the complaints. Attorney Maser suggested that because the report is in numbered paragraphs he could easily redact the report for each individual subject. Attorney Maser suggested that this is typically how it is done, to redact the report for each individual who is to receive a copy of it.
Steve identified 18 individual complaints that are listed in this investigation, and inquired if the Board is suggesting to have 18 individual meetings. Justin said that he does not want the investigation to drag on, but he wants to do it the right way, which would be meeting individually with subjects of the complaints to hear if they want to rebut any findings before the Select Board accepts the findings. Justin asserted that the Board ultimately can accept the findings even if the subject of the complaint disagrees, but he thinks the communications and meeting are good. Steve disagreed, as he believes most people who are the subject of negative findings will tend to disagree with them. Justin disagreed with Steve and feels like not doing so is worse than actually giving people a chance to respond to it.
Steve asserted that the report is a ‘tool’tool and that the specific recommendations make a lot of sense right now. Steve statedsaid that the goal is to enact policies and procedures, since the Board is a policy board, so that this situation does not happen again. He believes moving forward does not need to include having individual meetings where somebody is just going to deny the findings against themselves. Steve is concerned that this would drag the process on for a month or two, even into the next Board, preventing good policy recommendations from being carried out. Steve thought that some of these recommendations should be put on the agenda and implemented immediately. Steve thought this course would prevent additional liability for the Town and prevent this from happening again, rather than individual meetings with the subjects of the complaints, in which every body will deny findings against themselves.
Steve asserted that every employee makes mistakes. John disagreed and said that there is a huge difference between mistakes. Justin said that if the Select Board met individually with the subjects of the complaints, it would only be four meetings, as there are seven subjects total and three of them are on the Select Board. Justin asserted that these individual meetings could offer the subjects a chance to respond, disagree, or take accountability for wrong actions.
John stated that the Board should accept the factual findings of the report before jumping to recommendations.
Attorney Maser opined that generally the way that Boards operate in these circumstances is an investigation report has factual findings and conclusions, and the factual findings are based off of the complaints that were filed against individuals. After the Board determines whether the findings are substantiated or not substantiated, the Board could determine a course of corrective action. Corrective action could include creating a new position, public censure for an elected official in an open meeting, counseling an employee, putting something in an employee’s file, reprimand, suspend, or remove from office. These actions would be something that would happen at another meeting. Attorney Maser asserted that the whole process is not something that happens all in one meeting, especially because the individuals who were the subject of the complaints do not even have the report yet. Attorney Maser said that is the first thing the Board has to do is to figure out a way that you give the subjects of the complaints the report, so that they can respond to the allegations. The next time the Select Board has a meeting, where the Board can either accept the findings that have been made, or the Board can find them to be unsubstantiated.
Justin said that the most pressing thing to do is to disseminate the report to the people who were issued notice for this meeting. The Board could choose between disseminating completely unredacted copies of the report, generally redacted copies that Attorney Maser had already prepared, or copies redacted for each individual subject of the complaints.
Steve stated that he is accepting the recommendations of the report, but that he is opposed to accepting the factual findings. Steve argued that individual meetings with subjects of the complaints would be counterproductive, and that the investigator was hired to avoid such meetings where the Board discusses facts with employees.
Attorney Maser stated that individuals who are the subjects of complaints can take issue with the factual findings of the report, but that the Board ultimately has to take a vote on whether it accepts the findings, regardless of what the individuals who are subjects of the complaints say about them.
Steve questioned if accepting the factual findings of the report would open the Town to liability.
Attorney Maser acknowledged that that the investigator made a set of findings, and that the individuals who are the subject of the complaints may disagree with those findings. But Attorney Maser opined that the Board, irrespective of that disagreement, is fully within its right as a Board to accept the factual findings of the report through votes. Steve said that he thought this process might open up individual Board members to liability.
Melissa said that she would definitely be contesting any findings if they were negative, because they did not interview Shawn Tryon, who (according to Melissa) was present for several of the events. She questioned how the Board could accept the findings if the people involved did not even get interviewed.
Attorney Maser explained that the Board needs to take a vote on the findings of the report.
Melissa questioned the purpose of reviewing a complaint against an elected official because there is no action that can be taken against an elected official. Justin responded that a Board member could be publicly censured at an Open Meeting.
Steve moved the discussion to distribution of the investigation report and whether or not it would be redacted. It was questioned whether the Board could accept the factual findings of the report without the subjects of the complaints having seen the report yet. Attorney Maser opined that even if the individual subjects of the complaints dispute the investigator’s factual findings, the Board can still accept the factual findings as found by the investigator that the Board retained.
Attorney Maser recommended that he could redact the report for each individual subject of the report so that he could view only the paragraphs that pertain to his own conduct and the conclusions, and that other paragraphs would be redacted. Steve questioned whether individual’s names would be redacted from the conclusions, Attorney Maser stated that he has already redacted those names from the conclusion in his redacted copy. There was discussion about what would be redacted or not, Attorney Maser was willing to work at the direction of the Board.
Steve stated that this is an exercise in futility because individuals will share the reports amongst themselves as this is a small town. Steve thought the inevitable result was everyone seeing everyone else’s version of the redacted report, making the redactions useless.
Shawn asked if the individuals are only given a redacted copy, and the Board has a full unredacted copy, if the Board has to withhold its copy or if it can give its copy to the press. Steve responded that he is not giving anything to the press. Justin replied that the Board has been told by Attorney Maser not to share anything, but that the individuals do not have the same restrictions as the Select Board.
Attorney Maser opined that until the investigation has concluded when the Board closes it, the Town can assert a number of exemptions under the public records law to withhold the document. However, once the Board decides whether to accept the findings, and whether to take administrative action, the investigation will be closed and the report is generally subject to public release with some limited redactions.
Steve was concerned that once the report is accepted, there will be a flurry of public records requests. Attorney Maser assured him that just because it is accepted does not mean that the Town has to release it. Attorney Maser further stated that if the Board accepts the report today, but does not take any action on it and defers action until a future meeting, then the Town can assert exemptions to withholding it, because it has not closed the matter completely. Steve voiced further concern about requests for redacted versions of the report, and Attorney Maser assured him that the redacted versions are subject to the same exemptions.
Justin asked if the Board wants to distribute the findings to the individuals who are the subject of the report, and then meet with them and decide whether or not to accept the findings. Justin asked Steve if he would rather just accept the findings and move on. Steve responded that he is prepared to accept the recommendations of the report, but he is not prepared to accept it as “the findings of fact”.. Steve said he did not think the Board should accept “findings of fact” because the Board did not perform the investigation. Steve said that he is willing to take the report and use it to draft a set of policies that have been recommended by the investigator. Steve said he does not think it serves the town to perpetuate focusing on individual findings of fact and complaints, as this would not move the Town toward solutions.
Justin responded that if Steve wants to just move forward, then he should just accept the findings and move on. Steve replied that he accepts the ‘recommendations’ of the reportrecommendations.
John made a motion that the Monterey Select Board accept the factual findings in the March 17 2022 report. Justin seconded the motion for discussion.
Justin expressed that he thought the proper way to do this was to meet individually with subjects of the report, discuss it with them, and then decide whether to accept the findings of fact for each section. Justin was opposed to meeting with everyone all at once. Justin argued that if the Board were to accept the whole report, it would be much more appropriate to first meet with people individually and give them a chance to to talk about it. Justin asserted that the findings are about different individuals, and are very different for each person. He felt that meeting with everyone at the same time was not the right way to go about this. Justin also thought that separate meetings would give each individual more of a meaningful opportunity to request that their matter be heard in Open Meeting, although the legally required opportunity to enter Open Meeting was offered to each individual in their notice of Executive Session.
Attorney Maser stated that it was possible to prepare redacted separate reports for each individual and hold individual meetings.and finish the process before the Town Elections on May 10th. However, he also said that the Board needs to vote and decide how it wants to move forward. He agreed to perform the redactions.
Steve opined that individual meetings were not going to reduce liability. Steve said that such meetings may actually increase liability, and that he is certainly not going to vote on anything that goes beyond the scope of this investigation. Justin responded that if Steve just wants to rely on what the investigator did then he should accept the findings of the report, Steve responded that he will accept their ‘recommendations’recommendations to move the town forward.
Melissa expressed opposition to individual Executive Session meetings as she thought the purpose of hiring an investigator was to remove bias that the Board might have. Justin explained that he is ready to accept the findings for that reason. At the same time, Justin thought it would be appropriate to allow people to respond to findings of fact before the Board accepts them.
Steve expressed opposition to individual Executive Session meetings because the Town hired an independent investigator so that the Board could avoid being an arbiter of fact.
John stated the facts must be accepted or not accepted. Steve responded that the point of spending $16,000 in tax payer money was not to get individuals or make them apologize, but to find solutions for an endemic problem that is occurring in town hall. Steve asserted that the investigator made specific recommendations that the Town should adopt. Steve argued that moving straight to the solution would help the Town move forward more quickly. Steve said he firmly believed that moving to the solutions and recommendations would ultimately reduce the possibility of liability for the town.
The motion currently on the floor to accept all of the factual findings was addressed. Justin expressed a conflict between accepting the findings report to support the independence and impartiality of the investigator versus allowing individuals a chance to respond before accepting the findings.
Steve asked if he could modify the motion for the Board to accept the report as written, but not as a factual document.
Attorney Maser, opined that the Board is not beholden to follow the recommendations of the report as the appointing authority for all of these employees. Attorney Maser noted that generally a Town hires an outside investigator to interview people and make factual findings in connection to complaints that have been filed against individual employees. Attorney Maser added that usually then the investigator prepares a report that includes their findings from their interviews. Attorney Maser said that he has never been part of a prior proceeding in front of a public body where the public body has not accepted those findings provided by the investigator.
Steve said that we will accept them as findings from this investigator, but not as not ‘as fact’fact.
Justin said that he would vote to accept the findings on the basis that an independent investigator is more impartial and reliable than the Board. John voted yes as well. The motion that the Monterey Select Board accept the factual findings in the March 17 2022 report carried with two yes votes. John asked Attorney Maser is that was a properly called vote. Attorney Maser said that yes that yes it was proper as John made a motion, Justin seconded it, and there was a roll call vote.
Melissa requested a copy of the report.
John made a motion that the Board distribute redacted versions of the report to each individual listed in the Executive Session notices, redacted appropriately so that the individual can only view complaints made against themselves. Justin seconded the motion for discussion.
Steve asked if the conclusion would be included in all of the redacted copies since it mentions individual names, and some of the recommendations in the conclusion are very specific. Attorney Maser responded that he already has a generally redacted version with minimal redactions in the conclusion portion of the report. Attorney Maser stated that the redactions are all for complainants, to protect their identity to the extent that it needs protecting. Steve asked if individuals would be able to view complaints that others have made against them, Attorney Maser clarified that individuals are only privy, at this time, to complaints in which they are the subject.
Melissa asserted that, either as accused or complainant, she is part of every complaint, and might as well just be given an unredacted version. Justin countered that Melissa is not involved in every complaint and that he thought individuals should only view complaints where they are the subject of the complaint, not the complainant.
Attorney Maser opined that individuals who made the complaints are not entitled to a copy of the report, as they are not entitled to notice to be here at the Executive Session. The purpose of this meeting is to provide notice to the individuals who were named in the complaints as having engaged in some misconduct. Attorney Maser recommended that subjects of the complaints be given a redacted version of the report such that they are privy to findings on complaints in which they are the subject, not the complainant.
Attorney Maser said that he could do the redactions necessary to distribute copies of the report.
Shawn asked if this is a public document in the end, why is it being redacted and making additional weeks’ worth of work?
Justin responded that it is extra work but that it is intended to protect the privacy of employees as subjects of complaints. Justin also added that some portions of the report will be redacted permanently in theory. Shawn doubted that the report would remain confidential knowing who was privy to it.
There was discussion about additional meetings with each subject of the report. Steve said Justin would have to set the schedule, which would have to include time for individuals to look at the report and days for redacting the report.
Attorney Maser said that redacting individual reports would not take him long because he has already done general redacting and can easily black out paragraphs unrelated to each individual.
There was discussion about how many meetings the Board would need to hold to discuss the report with each individual subject of the report.
Steve called a vote on the motion that the Board distribute redacted versions of the report to each individual listed in the Executive Session notices, redacted appropriately so that the individual can only view complaints made against themselves. Steve voted no. Justin voted yes. John voted yes. The motion carried.
Justin inquired why Steve voted no on the motion, did he want to distribute the report to all individuals without redaction? Steve said he voted no because releasing redacted versions of the report will promote the sharing of the report as Monterey is a really small Town. Justin said he thought redacting the report would protect the Town from breaking people’s privacy. Justin argued that the Town has to do what it can to protect people’s privacy, even if someone could theoretically share the report with the Google Group or Berkshire Eagle.
Shawn said the report was a waste of money because he still sees three different opinions.
Attorney Maser recommended to Steve that after the redactions are made and the reports are issued to the individuals who were named in the complaints, then the board should schedule further executive sessions to decide how the board wants to dispose of the complaints now that the board has accepted the investigator’s findings.
Steve asked that counsel can guide the Board through the entire process so that everything is done correctly, including preparing Executive Session notices.
Attorney Maser remarked that the notice would not differ significantly from the one issued for today’s meeting. At that point in time, the board can really take whatever administrative action it wants or can close the investigation without taking any action. Attorney Maser recommended that the Board should vote on some level of administrative action or no action as they pertain to each specifically named individual.
Justin asked if there are recommendations, that are general policy recommendations, and the Board would like to act on them, can the Board at this point act on them in open session? Attorney Maser said that yes the Board can act on general policy recommendations made by the investigator’s report at this point. Attorney Maser offered that the Board should act on recommendations in open session as long as they do not pertain to any of the individuals who are named in the complaints. However, the Board should continue to meet in executive session as long as the Board wants to continue to talk about the complaints or charges, or consider discipline or dismissal of an employee.
There was discussion about whether the investigation should be closed at this point in time if the report did not recommend any discipline. Justin argued that it was important for the Board to follow up with individual employees to communicate clearly what conduct is not acceptable, and what might open the Town to liability. Steve countered that the report clearly says that actions of these individuals do not rise to the level of disciplinary action. Steve emphasized the importance of the conclusions of general policy, while Justin asserted that expectations of conduct and misconduct need to be clearly communicated in meetings or writings to employees to prevent misconduct in the future.
John made a motion to adjourn. Justin seconded John’s motion to adjourn, which was voted on and approved 3-0.
Meeting adjourned at 1:46pm.
Documents used at the meeting:
- Greene & Hafer, Town of Monterey Confidential Report, March 17, 2022