A Statement Presented to

the Northampton City Council

on December 6, 2007

By downstreet.net editor, Ed Shanahan

      In shaping a city ordinance that creates a new committee to address the concept of “best practices” in municipal decision making, there has been a lot of elevated, principled debate about openness, accountability, and citizen access and involvement.

       Let’s consider a concrete issue about which most city councilors and most citizens of this community are totally unaware and which seems to be just the opposite of best or even good

practice.

       That is the recent ruling by the Northwestern District Attorney’s office that the Board of Trustees of Forbes library is not a governmental body and thus not subject to the provisions and sanctions of the state Open Meeting Law. That opinion was rendered despite the fact that all five members of the board are elected at large by city voters and that $1.1 million in public funds will be spent by the board in the current fiscal year.

       Last March 13, the Trustees held a closed meeting and approved a monetary settlement to satisfy a claim by  a former employee who had been fired, apparently improperly, otherwise why approve a pay-off?

      As editor of an on-line journal, downstreet.net and as a former elected Forbes trustee, I sought details at the request of a reader about the settlement but was rebuffed by the trustees and their attorney, based on vaguely stated privacy issues.

      I  took my appeal to the D.A.’s office, which subsequently provided me both verbal and written responses, clearly after communications with the trustees’ lawyer. The D.A.’s office denied my request for access to details agreed to in the closed session.

     Citing a 1983 state Supreme Judicial Court decision involving a board of a Natick hospital, Asst. D.A. Cynthia Pepyne wrote: …The Board is not a governmental body, subject to the Open Meeting Law, and this Office must decline to review its meetings.”

      Finding such a position not credible, I went to before the board and asked for its  response. Trustees indicated they were surprised, but seemed actually to welcome it. They did say they would continue to operate in an open fashion in the future as circumstances dictated.

      They said they did not intend to seek any further clarification of the D.A.’s judgment that the Forbes Board of Trustees is not a governmental body, but rather a private entity. They facetiously suggested I could challenge the Supreme Court position if I wanted to.

      Because the Supreme Court ruled 25 years ago in one case does not mean that the issues of openness and accountability involving Forbes Library are forever set in concrete. Laws are modified all the time as society’s values change. The trustees currently are taking legal steps to amend Judge Forbes will to expand the board from five to seven members. So it seems their hands are not completely tied.

      It is incumbent for the city government on behalf of its citizens to take all necessary actions to clarify the legal status and characteristics of the  elected governors of Forbes Library. That would certainly be a “best practice.”

     This must be done to insure that the board be defined forever as a public body and thus subject, without qualification, to all requirements placed on other elected decision-making bodies in this Commonwealth. This is not a trivial matter.