BARNSTABLE – The state attorney general’s office has rejected allegations that county commissioners and two regional energy boards violated the Open Meeting Law in a series of executive sessions held last year.
In two findings released Friday, Assistant Attorney General Jonathan Sclarsic wrote that members of Cape Light Compact, Cape and Vineyard Electric Cooperative and the Barnstable County Commission used the closed-door sessions for appropriate purposes, including to discuss “clearly or imminently threatened” litigation.
In mid-2011, Connecticut resident and frequent Cape Cod visitor Eric Bibler filed several Open Meeting Law complaints, claiming – among other things – that county commissioners violated the Open Meeting Law when they met with representatives of the cooperative.
Bibler has been a vocal opponent of various local wind energy projects and of actions taken by the Compact and the cooperative to support the construction of wind turbines on the Cape. Bibler and other critics of the agencies have argued that the groups use executive sessions to inappropriately shield certain activities from public view.
In one of his complaints, Bibler referred to a meeting between county commissioners and the cooperative to discuss an appeal to the state Department of Public Utilities after the Brewster Planning Board denied a permit for two wind turbines off Freeman’s Way. The boards went into executive session without a reason that falls under the allowable exemptions, he argued.
Although the cooperative has not filed the appeal, it has met to plan litigation strategy for “what is a complex, technical and adversarial process,” Sclarsic wrote.
“We therefore find that the litigation is real and not hypothetical,” he wrote.
The attorney general’s office declined a request by Bibler that all executive session minutes for the Compact and cooperative since their founding be reviewed but did review a sample, Sclarsic wrote in the second finding.
“Following our review, we find that the boards did not violate the Open Meeting Law, and convened executive sessions for legal purposes,” he wrote. “However, although not raised by the complainant, we note that the boards did fail to provide sufficient specificity in announcing the topics for discussion and legal purpose for entering executive session in meeting notices.”
The two boards have taken steps to remedy the problem, Sclarsic wrote.
Sclarsic’s decisions exonerate the Compact and cooperative with respect to the executive sessions covered during a 15-month period, cooperative president Charles McLaughlin said.
“The attorney general’s office urged that (the cooperative) continue to follow current practice of explaining generally the subject matter that would be taken up in executive session, as compared to previous practice of announcing a more general purpose,” he said.
The decisions address a major element of the findings of a special committee convened by the county’s Assembly of Delegates – that the boards were unscrupulously meeting behind closed doors, McLaughlin said.
Assembly Speaker Ronald Bergstrom, who chaired the special committee, said the two boards didn’t handle the situation very well regardless of the attorney general’s findings.
“Maybe what they did wasn’t illegal,” Bergstrom said. “Adultery isn’t illegal, either. We stand by the contents of the special committee’s reports.”
Bibler was disappointed but seemingly undeterred by Sclarsic’s findings.
“I know from my discussions with the (attorney general’s) office a lot of these questions were breaking new ground,” he said.
The finding that a potential appeal to the state was tantamount to litigation opens questions about what else might be considered litigation, including activities of local boards, Bibler said.
“I’m wondering what the implications are for any permitting process, not just this one,” he said.
Bibler also said he has numerous other pending complaints related to the Compact and cooperative, including several that address the posting requirement highlighted by the attorney general’s office.
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