Waltham City Council Violated Open Meeting Law: Attorney General

WALTHAM, MA — City Council violated Open Meeting Law when it did not release the minutes of more than eight executive session meetings about the Stigmatine property, which is being developed for the new high school, the Massachusetts Attorney General's office ruled last month.

"We find that the Council violated the Open Meeting Law by impermissibly withholding several sets of executive session minutes from the public after the lawful purposes for the executive sessions had concluded," wrote Assistant Attorney General Sarah Monahan in a ruling dated Dec. 4.

The attorney general's office demanded the city council make public a number of the executive meeting minutes regarding the controversial property the council elected to take by eminent domain. The council has 60 days from the ruling to make those documents public.

Former City Councilor Bill Fowler filed a complaint with the council in March and then in April with the attorney general's office accusing the Waltham City Council of violating the Open Meeting Law, saying the council improperly withheld sets of executive session minutes regarding the city’s taking of the Stigmatine property.

The attorney general's office said it took some time for the city to comply, and that's what prompted the delayed ruling.

"After repeated requests from our office during our investigation into the allegations raised in the complaint, the Council supplied for in camera review many sets of executive session minutes related to the Stigmatine property as well as some stenographic transcriptions of other meetings," Monahan said in the ruling.

In the first half of 2018, the council was in negotiations with the Stigmatine Fathers to purchase 554 Lexington St. to build a new high school. During this time, the council met in executive session at least five times to discuss the ongoing negotiations. And when the negotiations stalled, the met to make a decision to take the property by eminent domain.

In June that year, the council returned to open session and moved publicly to take the property from the Trustees of the Stigmatine Fathers, for $18 million. In the following two years, the council met in executive session at least four times to discuss this litigation and settlement negotiations.

On Feb. 7, 2020, the city and the Stigmatines filed a settlement with the court, which was approved a month later.

Open Meeting law asks that city council creates and approves and makes public meeting minutes for all open and executive sessions, which are closed to the public, in a timely manner. There are 10 specific reasons that public bodies are permitted to temporarily withhold the publication of executive session minutes, according to the attorney general's office.

The attorney general's office said the council properly entered into executive sessions under Purpose 6 — which allows executive session to discuss exchange or purchase of property if that could have a negative impact on negotiation for it — while the council was negotiating with the Stigmatine Fathers to purchase the property, because the council discussed the value of real estate and had a negotiating position to protect.

The council argued that the purpose, Purpose 6, for these executive sessions continued after July 23, 2018, the date the taking was recorded, because the Stigmatines were likely to dispute the level of compensation they received for their property through litigation.

However, when the council’s settlement with the Stigmatines was finalized on March 4, 2020, this negotiating position concluded, the attorney general's office said and demanded that any minutes of executive sessions held under Purpose 6 related to the value of the Stigmatines property after that be made public.

"We order the release of any minutes for executive sessions that that took place on May 29, June 4, June 11, June 18, and June 25, 2018," according to the attorney general's office.

Purpose 3, another reason to convene in executive session, is to discuss strategy with respect to litigation if an open meeting may have a detrimental effect on the bargaining or litigating position of the public body.

"[But] this purpose offers the narrow opportunity to discuss strategy with respect to litigation that is pending or clearly and imminently threatened or otherwise demonstrably likely;" wrote the attorney general's office. "The mere possibility of litigation is not sufficient to invoke Purpose 3."

After the March 2020 settlement, the purpose for these executive sessions ended, since the council no longer had a litigating position to protect, so the attorney general's office ordered the city council to identify and release to the public all minutes of executive sessions during which the council discussed strategy with regard to the city’s civil action against the Stigmatines.