LYNNFIELD — The Board Health, School Committee and Select Board did not violate the Open Meeting Law when the three boards approved a municipal mask mandate in August, Town Counsel Tom Mullen stated in a Sept. 30 memo.
Baldwin Lane resident Michele Cole, a member of the advocacy group Lynnfield United, filed the Open Meeting Law complaint against the three boards after they approved the mask mandate during a contentious and chaotic meeting on Aug. 18. Cole filed the complaint on Sept. 15, and all three boards voted to direct Mullen to respond to Cole’s complaint.
Cole accused the three boards of violating the Open Meeting Law prior to the Aug. 18 meeting after claiming that Superintendent Kristen Vogel consulted “privately with the Select Board and the Board of Health” about implementing a mask mandate in all four schools.
“These meetings necessarily occurred privately as no public meetings of the Select Board or Board of Health had been noticed at that point in time,” Cole claimed in the Open Meeting Law complaint. “The Select Board and Board of Health have no authority to direct the superintendent, nor does the superintendent have authority to seek direction from the Select Board or Board of Health absent instruction from the School Committee, which also had not met publicly prior to the superintendent’s communications. These represented deliberate attempts to create policy via a town employee while never holding a public meeting to make known the deliberate process used to inform that policy decision.”
Mullen recalled that Vogel is a member of the Emergency Management Team, which is comprised of town department heads and not elected officials. In addition to Vogel, the Emergency Management Team also consists of Health Director Kristin McRae and Town Administrator Rob Dolan as well as Fire Chief/Emergency Management Director Glenn Davis, Acting Police Chief Nick Secatore and other town officials. Mullen noted in his response to Cole that she did not “identify the person to whom the statement was made or exactly what was said.”
“Respectfully, you are reading something into this statement that is not there,” Mullen stated. “All elements of town government try to coordinate with each — and occasionally succeed — but that coordination usually takes the form of communications among the professional staff of the various bodies, and not forbidden deliberation outside posted meetings with quorums of such bodies.”
Mullen also noted that Vogel told him she did not communicate orally or by email with a quorum of either of the Board of Health and Select Board by speaking with at least two of the three members that serve on each respective board.
“Nor has she attempted to end-run around the Open Meeting Law through serial communications with Select Board members,” Mullen stated.
Cole also claimed that the three boards violated the Open Meeting Law when they voted to implement the municipal mask mandate even though the vast majority of the standing-room only crowd in the Al Merritt Media and Cultural Center spoke out against the mandate. She stated that the “only conclusion that can be drawn” is that “the outcome of the meeting was pre-determined prior to the public meeting by these boards.”
“Three independent boards held no discussion and voted unanimously on a contentious subject in five minutes time,” Cole stated. “The majority of those five minutes were spent reading motions, not voting. The meeting was completely scripted. The motions were previously authored and coordinated among the three boards. The motions were introduced without any dialogue. The votes were all unanimous.”
Mullen stated in his response to Cole that he wrote the motions for all three boards.
“I plead guilty to writing the ‘near identical’ motions for the three public bodies, and I appreciate the compliment about the choreography,” Mullen stated. “In this case, as in substantially all meetings of public bodies in Lynnfield where precise draftsmanship is required, it was my job to craft the motions, and I did my best. If the members of those bodies did not debate the motions before voting for them, the reason was not that they had engaged in illicit deliberation beforehand, but rather that they had just heard 67 minutes of ‘conflicting, impassioned public comments,’ and like all the rest of us, they had been wrestling with the issues posed by COVID-19 for months and had a good idea how they felt about them even before hearing the comments.”
Mullen also noted that the Board of Health had the authority to issue a mask mandate in all town-owned buildings even if the Select Board and School Committee objected to it. The Board of Health was the first board that approved the mandate.
“Once that happened, the School Committee and Select Board could not have taken any action except the adoption of implementing policies without running afoul of the law,” stated Mullen. “The Board of Health’s regulations are binding on both of the said public bodies under General Law, Chapter 111, Section 31.”
Cole also accused the three boards of obstructing an Aug. 11 public records request that sought “all internal communications among town staff and/or elected officials on the subject of masks, mask mandates and school policies and operations with respect to COVID precautions.”
“To date, no documents responsive to these internal deliberations among town boards and staff have been provided,” claimed Cole.
Mullen stated in his response to Cole that, “I do not believe the issues you raise concerning public records implicate the Open Meeting Law.”
Cole requested that all three boards provide her with meeting minutes and communications regarding mask rules between May 1 and Sept. 10. She also requested that the three boards provide “detailed, dated minutes, with attendees listed, for all meetings” prior to the joint Aug. 18 meeting. She also wants to “require the town of Lynnfield to both put in place and require to be used town-issued email addresses for all correspondence to, from and among individual elected officials regarding town/school business.” The town already issues email addresses for municipal employees and committees.
Mullen stated that the three boards will not be implementing Cole’s proposed recommendations because he stated that the Lynnfield United member’s Open Meeting Law complaint is “not well founded.”
“There has been no violation of the law,” Mullen continued. “Accordingly, the said public bodies do not intend to take any remedial action.”
In addition to sending Cole the rebuttal to her complaint, Mullen also sent a copy to the Attorney General’s Office.
Cole’s Open Meeting Law complaint was the second one a Lynnfield United member has filed against the School Committee in the past month. Howard Avenue resident Cecil Ogren accused the School Committee of violating the Open Meeting Law during its Aug. 31 meeting. School Committee Chairman Rich Sjoberg addressed those accusations in a Sept. 14 meeting.
