Neither Auclair, DiPietro in attendance for Council discussion

By Shaun Moriarty
Citizen Chronicle Writer
shaun@TheCitizenChronicle.com

SOUTHBRIDGE — Though neither the complainant nor alleged violator were in attendance, the Town Council reviewed an open meeting law complaint on Monday night.

Town Council Chairwoman Denise Clemence will pen a letter attesting to a discussion spurred by a formal complaint filed March 12 by Town Councilor Kristen Auclair that a March 7 letter from Town Councilor Marc DiPietro violated the state open meeting law. At a Town Council meeting later that same day, Mr. DiPietro denied intentionally circumventing open meeting law. Ms. Auclair and Mr. DiPietro were marked “excused” after each notified Mrs. Clemence late Monday afternoon they would not be attending the meeting.

Per state law, the Town Council had 14 business days from the date of the complaint being filed to review the matter and determine what action the local board believes is necessary. If Ms. Auclair, the complainant, was not satisfied with the result, she would have 30 days to further the matter with the Office of the Attorney General.

“It will be totally up to Councilor Auclair,” Mrs. Clemence said of the complaint’s status going forward. “This is a minor situation as long as it gets corrected.”

Reached for comment after Monday night’s meeting, Ms. Auclair said she was unable to attend due to a “scheduling error on my part.” She noted that she will not pursue further action on the complaint.

“After tonight’s meeting I’m confident that the members on the Council are aware of the necessary compliance with the open meeting law and thank the Chair for carrying on the discussion to inform members of this important topic,” Ms. Auclair said.

She added: “All I was seeking was clarification to members.”

In the complaint, Ms. Auclair alleged Mr. DiPietro discussed pending business earlier this month, over the transfer of funds to pay for a forklift, in writing and disseminating emails and a memo to full membership of the Town Council, in violation of the open meeting law.

Ms. Auclair’s complaint alleged Mr. DiPietro authored a letter March 7 addressed to the Town Council in which discussed his “opinions and possible courses of action regarding an agenda item that was discussed” at the March 6 meeting of the Town Council and its Department of Public Works subcommittee.

“The frustration that led me to file the open meeting law complaint was a pattern stemming from leadership of opining emails that I felt needed to belong in open session,” Ms. Auclair said in a post-meeting interview on Monday night. “Transparency in government should be our number one concern, and justifying actions after public meetings in a private setting cannot be tolerated.”

The five councilors in attendance for Monday night’s proceedings appeared to reach a consensus that Mr. DiPietro’s letter was not a deliberate attempt to circumvent the state’s open meeting laws. While some councilors carefully avoided conceding the law was violated, there was unison that an elected office holder must be better acquainted with the statutes they are charged to work within.

“I don’t think Marc intended to violate it,” Council Vice Chairman Gus Steeves said. “Everybody makes mistakes unintentionally.”

Councilor Monique Manna agreed.

“I do not believe that Councilor DiPietro did anything purposely,” she said. “I think he did this to, you know, he saw a concern, and he wanted to address a concern. Should he have done it differently? Yes.”

Mrs. Manna said she similarly made mistakes that could have been viewed as violations of the open meeting law when initially elected.

“I did it when I first also became a councilor. I sent out emails and I was told that could be a possible violation, so I stopped,” she said. “I really believe he didn’t know.”

Mrs. Clemence said she had “extensive conversation” with Mr. DiPietro as well as Yvonne Tortis, the administrative assistant in the town manager’s office who distributed the letter in question at Mr. DiPietro’s request. She explained that Mr. DiPietro is “not very computer literate” and asked Mrs. Tortis to relay the letter to the Town Council and department heads “because he didn’t know how to do it.”

“There was no malintent to escape open meeting laws,” Mrs. Clemence opined, adding that an error was made due to an “ignorance” that is “unacceptable.”

Councilor Rick Nash agreed, stating that “ignorance is no excuse.”

He also called on the Town Council to “be better educated on open meeting law” and said there are “an abundance of resources” available.

Mrs. Clemence explained: “His intent was to summarize what happened at the meeting and bring to everyone’s attention his thoughts on it.”

Mrs. Clemence later added the letter “certainly is suspect to an open meeting law violation” because Mr. DiPietro “did state his opinion.”

“However, it is what it is,” she continued. “There’s an opinion stated, he sent it in, and it clearly was going to everybody. I don’t think he was trying to hide that fact.”

Mrs. Clemence summarized Mr. DiPietro’s letter as being “sort of like minutes but a little more than minutes.” She asserted that if he had put the letter in the Town Council’s weekly packets it wouldn’t have been an open meeting law violation. The chairwoman also urged others not to make a similar error going forward, suggesting a variety of ways in which officials could review open meeting law to ensure adherence.

Mrs. Manna noted the second-year councilor likely made an innocent mistake.

“I don’t think his intent was malicious at all or in a way, I think he honestly didn’t know he was violating an open meeting law,” she said. “He is a newer councilor. I mean, he’s not that new, but he’s still a newer councilor.”

Mr. Nash recognized the learning curve associated with the office and its laws and regulations while concurring the opinion that Mr. DiPietro did not intend to circumvent open meeting law.

“At the end of the day it’s a learning experience for everybody,” Mr. Nash said.

The letter in question was sent via electronic communication to the Town Council and a quorum of the DPW subcommittee, Ms. Auclair wrote in her complaint.

“These are deliberations and opinions that belong in an Open Meeting, not in an email to Council and department heads,” she wrote in the complaint. “It is my opinion that the extra step of delivering the letter to town hall was to intentionally circumvent” the open meeting law by having an employee in the town manager’s office instructed to disseminate the letter to the Town Council.

“This is my opinion due to previous warning and the additional step of creating a notice rather than emailing directly, although both are blatant attempts of deliberating outside a public meeting (where the content was discussed at lengthy by a quorum of Councilors present),” Ms. Auclair wrote in the complaint.

At Monday night’s meeting, Mrs. Manna questioned the veracity of Ms. Auclair’s assertion of a previous warning being given to Mr. DiPietro.

“We didn’t get no complaints,” insisted Mrs. Manna, who charged that Ms. Auclair has previously been guilty of the same violation being alleged of Mr. DiPietro.

“When she was first on council I saw her throw out emails,” said Mrs. Manna before the chairwoman redirected the conversation.

Mr. Nash said he recalled an instance that he believed occurred in the fall of 2017 in which “one councilor responded to an email, and I thought it came from the chair, that this could potentially be an open meeting law violation.”

The March 7 letter in question was penned by Mr. DiPietro and addressed to “The Town Council, all Town Department Heads, and The Town Manager.”  He wrote that he was “put to task by the Council Chair to research” the circumstances surrounding a recent forklift purchase by the DPW.

“As a result of my time spent on this subject and personal Review of Charter I came to the following conclusions,” Mr. DiPietro wrote, and he outlined four beliefs relative to the charter and actions of the town manager: that “the transfer of department funds forthis purchase needed approval by Council. Council was not consulted”; that the Town Council was “circumvented” by the “final purchase of this capital item”; that an “obvious problem exists in the current understanding by Management as to when council approval is required by charter for such expenditures”; and, that a need exists “for more specific language, definition, and communication between council and management regarding such expenditures.”

Mr. DiPietro said in his letter that the agenda item led to “a defensive posture” by “some department heads and management” in the March 6 DPW subcommittee meeting, but such a reaction was not intended.

“I therefore feel the need to further express that it is not my intention, nor council’s to tie the hands of our departments by overburdening them with requests for moneys that are required to operate on a day to day basis,” Mr. DiPietro wrote.

While he conceded that portions of the charter fail to “clearly define where to draw the line,” he argued that “any reasonable person can see the broad difference between the purchase of a 27K capital item and a roll of toilet paper.”

At the March 6 meeting, the town manager and several others in attendance disagreed with Mr. DiPietro’s assertion that the council should have been informed and approved of the transfer first, stressing instead that the charter sets no fiscal threshold, and allows transfers within departments regardless of dollar amounts.

Mr. DiPietro’s letter concluded by suggesting that while the March 6 meeting “ruffled some feathers,” that “No progress is ever made without a little pain and effort.” He also commended department heads and management on “doing the job they do with the sometime limited resources afforded them.” He added “Please don’t kill the messenger,” before closing with a salutation of “Submitted with Regards’ and Respect.”

Through the complaint, Ms. Auclair informed the Attorney General’s office that she has “noticed a recurring trend of certain Councilors sending emails to deliberate outside of open meeting.” The councilor added that she is seeking “very clear clarification to these members going forward that these emails are in violation of (the open meeting law) and are not conducive to open and transparent government.”

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