The District Attorney has sent a letter to Mr. Gagne, and copied the Select Board members, and the Town Counsel, in response to Mr. Gagne's complaint about open meeting law violations. The text of the letter is below...
...VIA First Class Mail and e-mail
December 1, 2008
Mr. Michael Gagné
8 Gulf Hill Drive
South Dartmouth, MA 02748
Dear Mr. Gagné:
Thank you for your letter dated November 18, 2008, seeking review of several meetings held by the Dartmouth Board of Selectmen (BOS) in Executive Session. The focus of your letter relates to meetings held in Executive Session to discuss the Dartmouth Executive Administrator’s position and the application of the Massachusetts Open Meeting Law (OML). It is important to keep in mind that M.G.L. c. 39 §23B, the Massachusetts Open Meeting Law, is a very narrow procedural mandate directed at local government. Any local governmental body in Massachusetts must, as a starting point, conduct its meetings under the provisions of the OML. The open and public process of governmental decision making is at the heart of the OML, unless an Executive Session (a closed meeting) is permitted. Your objection focuses on this exception as applied by the Board of Selectmen.
We recognize that the Executive Administrator’s position is currently under an employment contract set to expire early next year. This position you currently hold. Your letter states that the BOS discussed “getting rid of both [subject one] and myself’ in Executive Session. Your letter asserts that the BOS discussed at a later Executive Session meeting “the process of dismissing [subject onej and Mr. Gagné.” You were excluded from attending each
meeting during these deliberations.
Your letter complains that the BOS entered Executive Session while excluding you when in fact you were entitled to appear and be heard with the aid of legal counsel. You cite, in support of your view M.G.L. ch.39 §23B(l) a, b and c. You assert that these provisions were violated when the BOS discussed your reputation or character. Based upon our review we cannot conclude at this time, that discussions took place in Executive Session related to your reputation or character. Therefore, the provisions of M.G.L. c. 39 §23B(l) a, b and c are not implicated.
You also assert that M.G.L. c. 39 §23B(2) a, b and c were violated. These provisions relate to the rights of a person subject to discipline or dismissal. It appears that the issue at hand centers on the expiration of the Executive Administrator’s contract, which you equate with being disciplined or dismissed. We, however, are of the view that the expiration of an employment contract does not implicate the “discipline or dismissal” provisions in the Open Meeting Law.
Next, you state that Chairman Michaud asked other members of the BOS, in Executive Session, to state reasons why you “should not be terminated”. Again, it appears that the issue centers on the expiration of your contract, which you equate with being terminated, disciplined or dismissed. We, however, are of the view that expiration of an employment contract does not implicate “discipline or dismissal” rights in the Open Meeting Law.
Finally, you state that the BOS met on November 13th to “discuss the status of the Executive Administrator’s Contract.” You complain that the discussions were not for contract negotiations for non-union personnel and, therefore, Executive Session was improper. The OML statute does allow the BOS to enter Executive Session “to conduct strategy sessions in preparation for negotiations with non-union personnel.” M.G.L. c. 39 §23B (3). Based upon our review, we have determined that the board voted not to renew your contract. We do not know, at this time, whether prior to the vote, or following the vote, there were any discussions about strategy in preparation for further negotiations with respect to filling the position of Town Administrator. Without any evidence on this issue, we cannot conclude that a violation took place. We will await the minutes from that meeting, and following our review of the minutes, make a determination about whether we need to look into this further.
I thank you for bringing these issues to my attention. A copy of this letter will be forwarded to the Dartmouth Board of Selectmen.
Sincerely,
C. Samuel Sutter
District Attorney
Bristol District
cc: Attorney Howard Greenspan, Dartmouth Town Counsel
I scanned the letter using OCR to capture the text. Some elements are lost in that process such as the letterhead and signature. To view an image of the document with the letterhead and signature, go here(page1) and here(page2).
I doubt the Standard Times will report on this. Lately I find their reporting to be short on facts and long on speculation. But since the legality and propriety of the Select Board action have been questioned, you can read the letter here and decide what you think. As always, leave your comments below.
Monday, December 1, 2008
DA weighs in on open meeting questions
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24 comments:
I think this pretty much says it all. Mr. Gagne had his open meeting. The select board took another vote and the rest is history.
Now,let's work together to make Dartmouth healthy again; moving in the right direction with vision and the right leadership.
It would seem Mr. Sutter is only awaiting the executive session minutes to make a final judgement. How ironic! Let's see how fast Michael comes up with those minutes even though we haven't seen any other executive session minutes in years. Although I doubt we'll see those either if they are not to his advantage.
Ok, the meter is running. Let's see how much it costs this community to replace Mike Gagne. I hope this "fiscally" responsible group on this blog publishes the actual figures. If we hire a person with the credentials that Mr. Michaud defined last night, it is going to be much more expensive than we are paying now that is if you can even find the person.
By the way, the "Hathaway Road group" has an interesting ring to it.
It was said best by Mr. George last night. The town has just become more divided at a time where we needed to heal. Thank you Mr. Trimble. I understand you thrive in controversy. Your track record precedes you.
Just as with the no-override decisions, there are no "winners" here. How long before you will drop the animosity and start to work to heal the community?
Believe me, I doubt anyone supporting the SB's decision found anything to gloat about after their second vote to again not renew Mr. Gagne's contract.
To anonymous 9:04. We are constantly hearing that Dartmouth needs highly qualified people and "you get what you pay for". This has been used to justify salaries for quite some time now. Yet when the SB wishes to hire a qualified executive administrator, the person who is most responsible for running the town, you are apparently willing to disregard degrees/education and criticize the SB for possibly having to spend money to acquire such a person.
What is Trimble's background? What does he do for work? Who does he work for? What controversy was he part of before becoming a member of the Select Board?
There you go again. Are you the same "Anonymous" who is determined to badmouth someone with whom you disagree? Is this vengeance? Vindictiveness? Hope you are not accusing SB supporters of the above.
Hey folks, How is it that New Bedford, population 100,000 can have a good mayor and his salary is LESS than Mr. Gagne's?
Dartmouth pays Mr. Gagne 119,000 to pick up dead animals on the side of the road and fix plumbing problems...and people think that's great!? Something is wrong with this picture.......
How is it that New Bedford can find eleven good City Councilors and we can't find five good Select Board members?
Dartmouth pays a stipend to Select Board members and expects them to do more than just talk about things that need to be done... even though some of their supporters think just talking is great!? Something's wrong with this picture.......
Select Board members do not get any money for their services. That ended a year or so ago.
We could probably get 11 good people in town to serve as councilors. Or at least I think so.
At least I'm hopeful...you sound negative.
This is the first "get down to business SB" we've had!Thanks for sticking your neck out! Of course, Nat doesn't think it's a business.
There is a financial side of this town that should be tended to with accountability and responsibility. You don't have to call it a business if you don't want to, but we use money from residents to pay the bills in that /##? that's not a business?
Yes, that should be our goal - emulate New Bedford. The New Bedford City Council as a model? You are kidding right? Do you have any idea the taxes one pays in New Bedford? If you believe finding the cheapest person for the job is the way to go be my guest but it will not solve the financial problems we are facing.
Beleive me we will look and feel a whole lot more like New Bedford before too long, mark my words.
To anon 1:50, How much do you think Mr. Lang would make after 22 yrs of service in New Bedford? Longetivety is a cost difference.
Longevity (hopefully to be translated into experience) + job performance (carrying out one's job responsibilities) + performance reviews + education + people skills = top salary, and not necessarily in that order, for someone to command and/or expect top dollar. And I may have left out a few criteria, besides.
I have been hearing the doom and gloom prophecies for a while now. If we don't pass an override Dartmouth will fall into the ocean. If we don't open schools Dartmouth will cease to exist. Now we are going to be just like New Bedford because we no longer have Michael Gagne. After all the disasters that were to befall us over the last few years, when I wake up in the morning my life hasn't changed all that much.
Ok - have it your way. Everything will be just fine.
new bedford can pay its mayor less because he gets more help. per person nb pays its city gov't more than dartmouth.
I heard he works as a demagogue. He claims to have applied for the license but has not been able to prove he has a card to carry. He doesn't hang around town hall all day with Carney so I think this demagogue gig is a real day job.
The executive session minutes should be made public through the electronic media. The copies of executive session minutes for the last five years should be provided to the public unfettered.
The minutes of the meeting with Massachusetts Technology Collaborative’s Renewable Energy Trust, Sally Wright of the UMass Renewable Energy Research Lab (RERL) in October 2004 . The executive session minutes of wind studies prepared by the University of Massachusetts by the MTC, Massachusetts Technology Collaborative for the Town of Dartmouth. All executive session minutes having to do with the installation of commercial wind turbines.
http://www.mtpc.org/Project%20Deliverables/Comm_Wind/Dartmouth/Dartmouth_Preliminary_Site_Analysis.pdf
To 5:33pm Dec2, That's the point! Mr. Lang will not be in his position as mayor for 22 years!
And Mr. Gagne should not have been there that long either. But, Bob Miller and his Board had the sweetheart contracts written so Mike's contract would never end!
Bob Miller is for keeping the status quo in Dartmouth. According to Bob Miller, we exist to provide jobs to town employees. I don't think so Bob. I respect my town employees and I think they work hard to provide services for this town, but the residents are not responsible to keep every town employee working forever! Town employees provide services that taxpayers want. If they no longer feel they need or want those services, it's time to find a more efficient way to deliver them. Look in the paper everyday and you'll see that every town in this county and beyond and trying to cut costs. Wake up!
Gagne is the biggest violator of open meeting law by not releasing executive minutes. Then he has the nerve to file an open meeting law complaint. Don't let the door hit you on the way out Mike. Miller is history. A has been who is grasping for a return to the glory days of his political carreer. If any kind of attempt to usurp the will of the voters by town meeting is attempted, all three select board members will just get re-instated in the next general election.
I don't think anyone disputes the fact that Gagne, despite being hired without the qualifications of the job initially and despite not being mentored along by those who pushed for his getting the job and encouraged to further his education to get those qualifications he lacked, is a very nice person willing to go the extra mile in dozens of areas in which he's been involved.
That is not the point.
For the better part of a decade.the voters have chosen to elect new Select Board members , some voted to ouster someone for a specific reaon, some to send a message, but most to get some new blood and changes to the way we run things.
This board has finally taken some unpopular (with some) positions, which I personally think are warranted and necessary to get Dartmouth out of neutral and moving toward the future with a plan in hand for finances and growth.
The petty personal comments, even from SB members, do not serve to do any more than create more division within the town.
We elected the board to do the job they are doing, and I will never be part of any recall .
Has anybody seen the executive minutes yet?
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