By MARK SARDELLA
WAKEFIELD — A recent Open Meeting Law complaint filed against the Environmental Sustainability Committee is legally moot because it was filed too late and seeks a remedy that has no basis in law.
That is Town Counsel Thomas Mullen’s take on the Open Meeting Law complaint filed by Scot McCauley of Walden Road on Sept. 20.
The Environmental Sustainability Committee (ESC) held a special meeting on Monday because the law requires boards to publicly acknowledge and respond within 14 business days of receiving an Open Meeting Law complaint. In Wakefield, boards have typically referred such complaints to Town Counsel Thomas Mullen to craft the required written response to be sent to the Attorney General’s Office.
Mullen met with the ESC on Monday to review the facts of the case. His formal response filed yesterday with the AG’s office mirrors the analysis he presented at Monday’s meeting.
Mullen notes that the gist of McCauley’s complaint is his contention that at its Aug. 10, 2023 meeting, the ESC decided to put forth a Town Meeting article for the adoption of a Specialized Energy Code bylaw and created a three-member subcommittee to fashion such an article/bylaw.
At its Sept. 14, 2023 meeting, the full ESC voted to sponsor the Town Meeting article that the subcommittee had prepared. However, no agendas or minutes of any subcommittee meetings were ever posted, Mullen notes in his response, leading McCauley to conclude that the subcommittee had met in violation of the Open Meeting Law.
Mullen said that McCauley went back and reviewed video of a number of public meetings from September through November of 2023, including meetings of the ESC and the WMGLD Commission, where it was acknowledged that the subcommittee had met and crafted the Town Meeting article.
The Nov. 18, 2023 Regular Town Meeting voted 109-33 to adopt the Specialized Energy Code.
“Mr. McCauley takes the position,” Mullen said at Monday’s ESC meeting, “that the failure of the body that initially proposed the (Town Meeting) article to comply with the Open Meeting Law somehow infects the article with such illegality that there must be a way to repeal it.”
Mullen maintains that there are two major problems with McCauley’s complaint, which he details in his written response to the Attorney General.
First, Open Meeting Law complaints are supposed to be filed within 30 days of the offense or within 30 days of the time that the offense could have reasonably been discovered, Mullen notes.
The ESC’s action of voting to create a subcommittee at its Aug. 10, 2023 meeting without listing it on the meeting agenda or recording it in the minutes would have been apparent at the time those alleged violations occurred, Mullen maintains.
In addition, Mullen refers to those open meetings of the full ESC (Sept. 14, 2023) and the MGLD Commission (Nov. 1, 2023) at which the existence of this subcommittee was discussed. So, Mullen said, there were opportunities for someone to notice, at the time, that there may have been a violation of the Open Meeting Law in the failure of this subcommittee to hold open meetings or file agendas or minutes.
Second, Mullen notes that the Open Meeting Law does not give the Attorney General the power to rescind Town Meeting votes or overturn bylaws as a remedy for Open Meeting Law violations.
Based on the fact that McCauley’s complaint was submitted well outside of the 30-day window for filing Open Meeting Law complaints, Mullen asks the Attorney General to decline the complaint.
In his response, Mullen does not address whether a violation of the Open Meeting Law actually occurred.
“In light of the untimeliness of the complaint, I have not undertaken any substantive investigation concerning Mr. McCauley’s allegations,” Mullen writes in his response to the Attorney General. “However, I do not wish to leave you with the impression that the ESC takes its legal responsibilities lightly.”
Mullen notes that in August of this year, well before the complaint was filed, he was invited to give the ESC a primer on the Open Meeting Law. At a meeting in September, he spoke to the ESC at length about the various provisions of the Open Meeting Law, including how subcommittees should be handled.
Whether or not there is any validity to McCauley’s complaint, Mullen writes, “the ESC is committed to compliance going forward.”