Forbes Library: The Secret Meeting, the Pay-off, the Big Silence
By Edward Shanahan
Claiming the Board of Trustees of Forbes Library is not a government body, the Northwestern District Attorney has rejected an appeal by downstreet.net for access to the minutes of a March 13, 2007, closed meeting of the board.
Access to the meeting minutes was sought in order to determine the nature and size of a payment of an unspecified sum of money to settle a claim against the library brought by an employee who had been fired.
In an Oct.2, 2007 letter to me as editor of downstreet.net editor, Asst D.A. Cynthia M. Pepyne concluded that: “The Board is not a governmental body, subject to the Open Meeting Law, and this Office must decline to review its meetings.”
This ruling, despite the fact that the taxpayers of the City of Northampton will spend more than $1 million on Forbes Library operations in the current fiscal year, according to the city budget, and despite the fact that all five members of the Board are elected as trustees by the registered voters of the City of Northampton. (In fact, I myself served as an elected member of the board for four years between 1998 and 2002, believing it to be a public body.)
Previously, downstreet.net had requested access to the minutes of the closed meeting both in a letter to Russell Carrier, president of the board, and in two personal appearances before the trustees.
But all requests for information about the board’s proceedings and the action taken at the closed meeting were denied, based on the recommendation of the library’s lawyer Atty. Elaine Reall.
The issue in question arose when an anonymous source sent downstreet.net a copy of the board’s printed March minutes that made reference to an item headed “legal matter.” The minutes reported that “at 4:41 PM, Ms. (Mary) Harding moved that the trustees go into executive session to discuss a legal matter involving the financial security of the library.” All trustees approved the motion.
When the trustees resumed their public meeting at 4:55 PM, the minutes record, “Ms. (sic) (David) Bloomberg made a motion to authorize the president of the Trustees to execute on behalf of the Trustees a certain agreement and release recommended by Attorney Reall to resolve an outstanding dispute. The settlement is to be paid temporarily from the Special Collections Fund, until it can be replenished through gifts or bequests.” The motion was passed unanimously, according to the minutes.
In alerting downstreet.net to the board’s action, the source, who since has identified herself, wrote: “The Special Collections Fund is for the care and preservation of the collection and new acquisitions of collections and salary for special projects, etc. Not settlements for fired employees!”
Overall, there has been a conspiracy of silence surrounding the case, as if the trustees simply do not want the reason for and size of the settlement made public, preferring to let it go away. Was the firing carried out improperly? Were the grounds for dismissal inappropriate? Who erred? What was the settlement, $1, $10, $10,000?
Initially when downstreet.net asked for information about the money involved in the settlement and why it was being paid, board member Bloomberg said their silence was based on the advice of their attorney, that employee privacy laws prevented the release of any information.
On June 26, I wrote to Atty. Reall seeking “details about the nature of the ‘certain agreement’ which involved a former employee of the library, including the precise amount of the final settlement approved and paid.”
Further, I wrote Atty. Reall: “I believe the public is entitled to this information relating to a city institution which is governed by publicly elected trustees and receives a significant amount of public money for its operating budget.”
In a July 16 letter, Reall, who wrote that while she “on occasion” serves as acting city solicitor, in this case she was acting as “labor counsel to the Trustees of Forbes Library.” She also wrote: “I am sure as a former trustee of Forbes Library that you are only too well aware of the unique legal structure created by the Will of Judge Charles E. Forbes.”
She went on to deny my request for information about the settlement and payment on the grounds “any document related to disciplinary matters and/or contained in a confidential personnel file are statutorily exempt from disclosure,” citing the M.G.L. c.4, Sec. 7(26) ( c ).
She concluded: “In as much as your public records request appears to implicate the privacy and personnel record interests of a former employee, my client declines to release any and all documents exempt under Exemption C of the Public Records Law..”
At this point, I took my case to the office of the District Attorney. On Aug 10, I wrote” “I am writing to appeal the decision of the Trustees of Forbes Library to repeatedly reject the request by my on-line publication, downstreet.net, for information about a legal settlement the library entered into that resulted in the expenditure of an unspecified amount of library funds.” I sent along my correspondence with Atty. Reall and library officials.
In a letter dated Aug. 15, a copy of which I received, Assistant DA Cynthia Pepyne wrote to Atty. Reall the following: “In correspondence to the complainant in this matter, you indicated that the matter involved an ‘employee labor grievance’ and that ‘if such document exists it is contained in the confidential personnel file of the referenced employee.’ “
Pepyne then requested additional material from Reall “in order to determine whether the minutes of this meeting may remain unpublished … ”
On Sept. 6, I talked long distance by phone for 16 minutes with Atty. Pepyne while I was traveling.
I was surprised when she told me that Reall was refusing to release information about the board’s meetings, not because of employee privilege, but based on a 1983 Supreme Judicial Court decision involving a hospital board in Natick, MA that apparently was likened by Reall to the Forbes board.
In our conversation, Pepyne seemed to agree that the Forbes board had all of the characteristics of a public body in as much as its trustees are elected by Northampton voters, and taxpayer funds are used to operate the library.
But she said Atty. Reall’s position was that the Forbes trustees were a non-public, quasi private entity and thus immune from the provisions of the Open Meeting Law or public records disclosure. Pepyne was satisfied the Supreme Court ruling in the case of the District Attorney of the Northern District v. Board of Trustees of the Leonard Morse Hospital (the Natick case), was operative for Forbes Library as well.
Thus downstreet.net would not be getting any information about the closed meeting and the details of the payoff.
I asked if I could have a copy of Atty. Reall’s communication to the D.A.’s office in which she changes her argument from employee privacy to the broader issue of the unique nature of the Forbes board. Pepyne said she would check on that. Maybe I could get the information directly from Reall, she said.
Pepyne indicated her boss, District Attorney Elizabeth Scheibel would have no interest in challenging the 1983 SJC ruling, because my appeal seemed to be of minor importance.
Subsequently, in response to my request, Pepyne sent me a written statement of the D.A’.s rejection of my appeal.
“After review, this Office finds that the characteristics of the Board render it outside the jurisdiction of the Open Meeting Law G.L. c.39, Sec. 23A et seq. The board derives its power and authority from the will of Charles Edward Forbes, Likewise, its duties are delineated in Judge Forbes’ will; Members of the board are elected by citizens of Northampton; the will calls for election of trustees.
“In addition, the Board ‘lacks traditional governmental powers such as the power to tax, the power to take property by eminent domain, and the power to regulate coercively individual and group conduct, ‘ ” a citation from the Supreme Judicial Court decision in the Leonard Morse hospital case.
“For these reasons, this Office must decline to review the Board’s meetings, including the issue of whether minutes of an executive session were properly recorded and whether they are now subject to release to the public.”
Still I wanted to know why Atty. Reall changed her mind about the important principle at stake here. Was it employee privacy or the non-governmental nature of the Forbes board? Or was it merely that the library board wanted to stonewall? Why did it want the public and other supporters of the library to remain in the dark?
So I wrote the following on Oct. 12, 2007:
Dear Atty. Reall:
Having called twice and left messages indicating my interest in speaking with you, I am now making my request in writing.
I would like to have a copy of any letter you wrote in response to Asst. D.A. Pepyne’s Aug 15 letter outlining the nature of my complaint about my inability, as editor of downstreet.net, a Northampton-based journal, to have access to the contents of minutes from a March 13, 2007, executive session of the Forbes Library board. In that meeting discussions were held, and a payment then authorized, to settle the grievance of a former employee who had been fired.
When I talked to her earlier this week Atty. Pepyne said I should be able to obtain such a copy from you, but that query has been met with silence.
What interests me is that in your initial July 16, 2007 letter to me you say that discussions about an “employee labor grievance” cannot by statute be disclosed, but then in a follow-up letter to the district attorney’s office you apparently say the Forbes board is not, by definition, a governmental body, and as a consequence not subject to the provisions of the Open Meeting law. I want to understand and clarify these differing responses.
Futhermore, you say you are not acting as a solicitor for the city when you serve as “labor counsel” to the trustees of the Library but, if you are both, then there may be some conflict of interest.
The city solicitor or acting city solicitor or legal counsel to the city, I would assume, is an employee of the government and thus a public employee. As counsel for the library board you are a private employee, if it is not a governmental body. You say that you represent only the library not the city. But if you serve in both capacities how do we really know which is which and when?
Who pays the bill for your legal work for the Library, the Forbes endowment or the public money, which amounts to more than $1 million, that is budgeted by the city taxpayers for operations of the library?
Meanwhile, I appreciate your earlier comments clarifying for my edification that I was wrong to request any information about the library meetings in connection with the F.O.I.A, but more properly under the state’s Public Records Law.
I await copies of any and all communications you have had with the District Attorney ‘s office about my complaint.
Her reply on Oct. 16 was as follows: “Please be further advised that I am not in the habit of discussing the advice or counsel that I furnish private clients with members of the press … As you will imagine, such information falls squarely under the rubric of attorney-client privilege.”
And I received a similar message on Oct. 18 from the District Attorney’s office, closing the insider circle on my request for a copy of Atty. Reall’s communications with the D.A.’s office.
“Your request is denied as the document in question was created in response to an investigation by this Office. The definition of public records contains an exemption for investigatory materials ….”
The Last Word
And so several branches of officialdom have circled the wagons of secrecy and left us in the dark, citing an array of reasons.
The principle that has suddenly gained legal ratification that Forbes Library is not a governmental body needs to be addressed head-on by members of the board who stand for election, the mayor and City Council, which spends public money on the library, and the State Legislature, which on one occasion in the past approved alterations to the Forbes will to enlarge the membership of the board from three to five.
In the next six months the Probate Court and Legislature will receive another petition from the board to approve changes to the Forbes will to increase the number of trustees from five to seven. The will’s provisions apparently are not engraved in stone, but can be modified selectively.
In our opinion the District Attorney needs to carefully consider whether to ask the Supreme Judicial Court to revisit the 1983 Leonard Morse Hospital ruling, in order to clarify the specific character of the Trustees of Forbes Library.
This is not a trivial matter of interest only to citizen journalists. The public has a huge stake in resisting the erosion of open access to community institutions supported by taxpayer funds.
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