Acton School Committee Open Meeting Law Violations: THE COVERUP MAY BE WORSE THAN THE OFFENSE

When Charlie Kadlec and I filed the Open Meeting Law complaint against the School Committees in Acton, it took over nine months for the Middlesex DA to rule that eight meetings of the School Committee and/or its subcommittee had violated the Open Meeting Law. This issue was explored by the local paper as well as on Acton Forum SEE ARTICLE.

I assumed the School Committee, if found guilty, would at least admit that what it did was wrong, express remorse, and not let this type of behavior happen again. In short, that they would learn a valuable lesson about how to conduct the public's business. Was I ever wrong.

After the violations were confirmed, the School Committee met on May 6, 2010, and the Chairs read a statement that grudgingly admitted the error, but they pointed out that things really weren't that bad and no further actions were necessary. (See Video here: SC_050610_OML)

Charlie and I had asked for four specific actions to be taken. All were rejected.

Among other things, we wanted the Committee to release the legal advice that they had used to go into these executive sessions. Were they relying on faulty legal advice or had they ignored the advice they were given? This is important because it gets back to the intent and whether this will happen again. Who are they protecting by refusing to come clean about this legal advice, paid for by the taxpayers?

We also asked that the actions resulting from the illegal meetings be reviewed. This is what would have happened had we filed a lawsuit and had a judge ruled that these violations occurred instead of the District Attorney's office.

But most surprising is the revisionist history that some School Committee members now have about the events that transpired a year ago, and how other School Committee members are concocting the most fanciful explanations rather than admit that what was done was wrong. Because if the School Committee can't admit that it did wrong, who is to say that this behavior won't reoccur?

And there is no question that what was done was wrong. This isn't just the DA's opinion after nine months of review. This is also borne out by the facts as will be shown below. These meetings were not held by mistake, were not inadvertent, and did not occur because of a minor oversight, as some have claimed.

There are two arguments advanced by members of the School Committee that need to be debunked. Both revolve around the Administrators Benefits Subcommittee that was formed in March, 2009, and held four illegal executive session meetings. (The other four illegal meetings were held by the School Committee meeting as a whole, which the DA also found to be in violation.)

THE SUBCOMMITTEE WAS A NEGOTIATING COMMITTEE

The first argument given by the School Committee to justify its actions is that the subcommittee was charged with negotiating with non-union personnel (the school administrators), which explains why they would meet in Executive Session with them. Negotiations are typically held in Executive Session.

This argument was advanced by the Subcommittee Chair, Jonathan Chinitz, in a statement he sent to the School Committee that was read on May 6, 2010. (See Video: SC_050610_Chinitz).

But this argument fails on several grounds.

First, a committee needs to be empowered to negotiate. You can't just have members taking it upon themselves to do so. And there is no evidence that the School Committee ever officially empowered the Subcommittee to perform this task. In fact, several SC members have stated publicly that it is their opinion that the Subcommittee was specifically not empowered to negotiate. Here are two such statements by Mike Coppolino and Terry Lindgren back when all this was just going on--May 7, 2009 [Watch SC_050709_subcomm)

Lindgren went further. When he joined the Subcommittee as a new School Committee member, he asked the Superintendent twice if the subcommittee was a negotiating subcommittee and he was told no. (See Video, SC_050610_Terry). This is not just semantics. One can only conclude that this argument is being advanced after the fact to explain away the illegal meetings.

Second, to negotiate, one needs to meet with people who are empowered to negotiate back. The administrators who met behind closed doors are not unionized. They were not elected by their peers to negotiate. How can you meet privately with a group of self-appointed people to negotiate on behalf of others without their permission?

This is not just a formality either. By law, school principals are not allowed to unionize. This means that contract negotiations must be done individually.

Third, there was a Finance Committee member who attended the Subcommittee meetings as one of the members. The Finance Committee is not supposed to participate in negotiations, because they must stay neutral. FinCom members are not involved with any union negotiations to the best of my knowledge. Having a FinCom member participate in negotiations would therefore be highly unusual. I would think no FinCom member would ever participate in such an activity if the meetings were really negotiations.

The School Committee members who insist that the Subcommittee was really a negotiating subcommittee are trying to rewrite history so that their illegal meetings are seen in a different light. And, of course, this argument was made by their legal counsel to the District Attorney, who also rejected it.

THE MEMBERS OF THE SUBCOMMITTEE THOUGHT THEY WERE A NEGOTIATING COMMITTEE

The second argument one Insider advanced is a novel theory as to why we should not judge the School Committee's actions too harshly.

Here's the argument: Even though the School Committee did not authorize this Subcommittee to meet in executive session, the members of the Subcommittee thought they were negotiating. They acted in good faith and made an honest mistake.

Does this sound plausible? Well, individual committee members may say they remember things differently, but the video tape is here to set the record straight.

Just five days before the Subcommittee met for the first time (March 25, 2009), the question was asked if the Subcommittee was going to be meeting in executive session or open session. Now, if the purpose of the Subcommittee was really to negotiate, and all they lacked was a formal vote to do so (as the Subcommittee Chair said in his 2010 statement), then they would surely have planned all along to meet in Executive Session, because that is the process for negotiations. Unfortunately, the video does not bear that out.

At the meeting of March 25 2009, the Subcommittee's Chair, Jonathan Chinitz, as well as the Superintendent and the Director of Personnel, made it quite clear that these meetings were going to be open to the public. [See video SC_032609_subcomm).

That was the last open School Committee meeting before the Subcommittee met for the first time. It was clearly the intent going forward to have open Subcommittee meetings. But sometime between March 25 and March 30, 2009, someone made the decision to exclude the public. Why?

Then after the Subcommittee met, but before we filed our complaint with the District Attorney’s office, we heard another explanation of the process, this time by Regional Chair Sharon McManus at the June 26, 2009 School Committee meeting. There is no mention of the Subcommittee acting as a “de facto” negotiating committee.

Instead, according to Ms. McManus, the reason for this Subcommittee was to revise the Administrators Benefits Manual. It was a working subcommittee, not a bargaining subcommittee. Ms. McManus was a member of the Subcommittee, was Chair of the School Committees, and surely would have mentioned if she thought she was participating in actual negotiations. (See video here)

WHAT WAS THE REAL REASON BEHIND THE ILLEGAL MEETINGS?

As long as the School Committee continues to refuse to provide a complete explanation, no one will probably ever know what really went on, but we have a clue.

At the School Committee meeting of May 7, 2009, the newly elected School Committee member, Terry Lindgren, publicly complained about the process.

He asked why the Subcommittee was meeting in Executive Session and was told by another School Committee member that it was "to hide it from Allen Nitschelm."

As someone who has tried to follow this process on behalf of the public, and report back on Acton Forum, this is quite offensive. [Watch SC_050709_subcomm)

So if the real reason for holding these Executive Sessions was to keep the public from learning and commenting, then that calls into question all subsequent action that stems from these meetings, which will unfortunately include the current union negotiations that the School Committee is also holding in Executive Session.

The public deserves better.

UPDATE: At the June 3, 2010 School Committee meeting, member Mike Coppolino read a statement in response to Jonathan Chinitz' statement that was read at the May 6, 2010 meeting. Watch the video HERE.

Coppolino states that "negotiations" between the School Committee and the administrators are not proper, since, under the 1993 Education Reform Act, it is the Superintendent's role to negotiate with administrators, not the School Committee's.