01:00 AM EDT on Thursday, June 14, 2007

By Maria Armental

Journal Staff Writer

CHARLESTOWN — The attorney general’s office has issued a third Open Meetings Law violation notice against the Town Council, saying the council quoted the wrong subsection of the law in its reason for holding closed-door discussions.

In a June 6 finding, Special Assistant Attorney General Christy Hetherington said the Jan. 4 closed session was inadequately advertised.

She did conclude, however, that the subject discussed properly fell within the law’s exemptions for a public body to go behind closed doors.

The alleged violation stems from a session in which the council’s agenda cited personnel and pending litigation as the reasons to go behind closed doors.

Before the meeting, officials said the council was to review pending legal cases and the work hours of the then-town solicitor, Peter D. Ruggiero. However, that discussion was held in open session.

Three council members — James M. Mageau, John O. Craig Jr., and Bruce W. Picard — then moved for a closed-door discussion, citing what Mageau described as a “personnel incident.”

Council President Katharine H. Waterman and Vice President Harriet A. Allen, who later filed the complaint with the state, refused to participate in the closed-door session.

After reviewing the minutes from the closed session which the council sealed from the public, Hetherington said the three councilmen had “addressed an unrelated personnel matter” and “took no formal action or votes” at the meeting, making court action unwarranted.

However, she did say that a violation had occurred because the closed meeting had not been properly advertised.

One week after that session, the council moved to replace its legal representation, on a 3-to-2 vote at a special meeting.

The attorney general’s office had previously found the council in violation of the Open Meetings Law on a Nov. 15, 2006, complaint filed by Thomas C. DePatie accusing then council members-elect Mageau, Craig, and Picard of meeting without proper notice to discuss town affairs, specifically the appointment of the town administrator and the selection of the council president and vice president.

The office also found against the council on a Jan. 22 complaint filed by Clifford L. Vanover accusing the three councilmen of violating the Open Meetings Law in discussing privately the appointment of the new town solicitor, Robert E. Craven.

In a June 9 supplemental finding to the original April decision, the office said it found “insufficient evidence to find the violation . . . was willful or knowing.”

The office had deferred a decision on whether the violation was willful pending the review of the three councilmen’s affidavits, which were submitted in May.

In their affidavits, the councilmen said they had not violated the law because the three never reached a consensus on Craven’s appointment. Instead, they said, Craig and Picard met separately with Mageau in what they characterized as a “Democratic Party political caucus.” According to voter registration records, Craig is not politically affiliated. He ran in November as an independent. He has previously served on the council as a Republican.

Political caucuses are typically exempted from the Open Meetings Law, “provided, however, that no such meeting shall be used to circumvent the requirements” of the law.

And while the three claimed they never reached a consensus jointly on Craven’s appointment, Civil Division Chief James R. Lee wrote in the decision’s addendum, “any time members of a public body engage in collective contact, they run the risk of circumventing the requirements of the OMA.”

“For instance, using a five-member public body as an example where three members are a quorum, A may speak to B about a particular public matter and then B may speak to C about the same matter,” Lee wrote. “Neither encounter, by itself, constitutes a quorum, but collectively a majority of the public body was able to discuss public business using B as a conduit.”

Charlestown

marmenta@projo.com