Town Counsel Outlines Opposition To Open Meeting Law Complaint Against Select Board

A memo drafted by Nantucket's town attorney indicates that the Select Board plans to claim it did not violate the Massachusetts open meeting law when a quorum of the board urged Board of Health chair Ann Smith to shut down a discussion on the merits of artificial turf earlier this month.

“There was no deliberation between or among a quorum of the Select Board prior to or during the Board of Health’s March 19 meeting,” the memo reads in part. “The Select Board respectfully submits that no violation of the Open Meeting Law occurred as alleged…public comments made separately by two Select Board members to the Board of Health during its March 19 meeting on matters within the Board of Health’s jurisdiction were stated to enhance Open Meeting Law compliance and increase transparency for Town residents on a Board of Health matter with significant public interest.”

Town counsel’s opinion, written by attorney Janelle M. Austin from KP Law, is a response to an open meeting law complaint filed by Meghan Perry.

“Three members of the Nantucket Select Board, Dawn [Hill], Tom Dixon, and Brooke Mohr, violated open meeting law when they attended the Board of Health and created a quorum of the Nantucket Select Board at a non-posted Select Board meeting,” Perry wrote in her complaint. “The coordination of their unison remarks establishes they had discussed and deliberated prior to the Board of Health meeting. They continued to deliberate and agree with each other at the Board of Health meeting.”

The complaint was filed after a tumultuous meeting on a controversial proposal to install an artificial turf field at Vito Capizzo stadium, which the Board of Health may restrict.

Three Select Board members—chair Dawn Hill, Board of Health member Tom Dixon, and Brooke Mohr—intervened in the Board of Health’s meeting to stop Smith from making a motion that they believed could have been a violation of open meeting law itself.

Town counsel argues this intervention did not violate the law that seeks to ensure that the deliberations of government bodies are open and accessible to the public. Town counsel’s response emphasizes that the Select Board’s comments were made independently and pertained to an issue before the Board of Health, not an issue before the Select Board.

“The Select Board members were not seated together and did not discuss or deliberate on any matters amongst themselves or coordinate any such comments in advance of the March 19 meeting. Indeed, as noted, Select Board Chair Hill attended the Board of Health meeting virtually with Member Mohr sitting in the audience with other members of the public in attendance, many of whom had also participated in the meeting that evening and also submitted public comment on Board of Health topics,” the memo continues. “Open Meeting Law does not prohibit a member of a public body or even a quorum of members of a public body from serving on another public body, provided that their discussions during another public body’s posted meeting are restricted to matters within that public body's jurisdiction.”

The Select Board is not considering blocking the turf field, but it is responsible for setting and adopting the Town Meeting warrant on which the relevant proposal appears.

The Massachusetts open meeting law requires that most deliberations of public government bodies be open to the public, defining a deliberation as “oral or written communication through any medium, including electronic mail, between or among a quorum of a public body on any public business within its jurisdiction; provided, however, that ‘deliberation’ shall not include the distribution of a meeting agenda, scheduling information or distribution of other procedural meeting or the distribution of reports or documents that may be discussed at a meeting, provided that no opinion of a member is expressed.”

The Board of Health has been deciding whether to ban artificial turf for months, though Smith told the Current after the board’s most recent meeting that a ban was “not on the table” and the board was now only focused on the turf field proposed for installation at Vito Capizzo Stadium by the Nantucket Public Schools and endorsed by the School Committee.

Smith planned to make a pair of compromise motions that would have allowed the installation of turf at Vito Capizzo, but only if it met as-yet undefined Board of Health requirements. She circulated the motions to the rest of the board before the meeting, which members of the Select Board—and, allegedly, town counsel—worried veered close to a violation of open meeting law. They also raised concerns that the posted agenda item was overly vague and urged Smith not to make the motions.

Smith eventually relented, and the motions were not made. Board of Health vice chair Meredith Lepore also planned a motion for the meeting, but was ultimately also prevailed upon not to make it.

In the wake of the meeting, at least three open meeting law complaints were filed: Perry’s against the Select Board, and two against the Board of Health, which have yet to be addressed.