Great Barrington — In a response to a complaint filed last year against Selectboard Chair Steve Bannon and Vice Chair Leigh Davis, the state’s Attorney General’s office has ruled that the two violated the state open meeting law last year while crafting the controversial short-term rental (STR) bylaw. However, the state will not strike down the STR bylaw, as was requested by the residents who filed the complaint.
Original complaint filed last year
At the May 23, 2022 Selectboard meeting, the bylaw was endorsed by the Selectboard by a vote of 3-1, with Selectboard members Bannon, Davis, and Garfield Reed voting to approve it, Edward Abrahams voting against it, and Eric Gabriel recusing himself from the vote. In early June, the bylaw was passed at the annual town meeting by a vote of 207-111.
In late June, STR-opponents Antonio Segalla and Daniel Seitz filed open meeting complaints with the Attorney General’s office. According to his LinkedIn profile, Segalla is a Sales Associate with Lance Vermeulen Real Estate in Great Barrington. Meanwhile, Seitz is a nonprofit consultant and has contributed articles in the past to The Berkshire Edge.
In their complaints, both Seitz and Segalla alleged that for two meetings, one on March 7, 2022 and another one on May 23, 2022, the Selectboard asked Chair Bannon and Vice Chair Davis to revise the draft bylaw proposal and return the draft for revision at a later meeting. The two allege that at the March 2022 meeting, Assistant Town Manager Chris Rembold suggested that he work with the two Selectboard members “to hash something out and [sic] bring it back to the board.”
Both Segalla, and Seitz argued that the board members violated the state’s open meeting law by convening to discuss the draft bylaw as a subcommittee without properly noticing the meeting to the public. “At its March 7, 2022 meeting, the Great Barrington Selectboard clearly intended to create, as evidenced by the audio recording of the meeting, a de facto subcommittee of two Selectboard members [and Rembold] to revise a draft proposed bylaw,” both Seitz and Segalla wrote in their complaints. “This subcommittee did not observe the open meeting law’s public notice requirements. The subcommittee subsequently brought back to the full Selectboard a revised proposal for review at the May 23, 2022 meeting, as evidenced by the audio recording. This is when the violation was first discoverable. The submission of a revised proposal and its approval at the May 23, 2022 meeting demonstrates that the Great Barrington Selectboard violated the open meeting law due to lack of public notice regarding the subcommittee’s meetings.”
Seitz and Segalla both requested that the Attorney General nullify both the presentation of the STR bylaw at the annual town meeting by the Selectboard and also nullify the town meeting vote that approved the bylaw. The two also requested that the state “compel immediate and future compliance with the open meeting law, including all future activities related to the proposed short-term rental bylaw.” Eight residents co-signed the complaints: Tracy Thornton, Michael Fernbacher, Ron Blumenthal, Naomi Blumenthal, Krista Martins, Claudia Lasley, Sarah Dixon, and a former member of the town’s Affordable Housing Trust Fund Board Larissa Yaple.
Selectboard’s original response
In an interview with The Berkshire Edge in late June, just after the complaints were filed with the state, Davis denied that the Selectboard violated open meeting laws and accused the complainants of trying to derail the STR bylaw. “I’m hoping that this will be the last of the attempted roadblocks that certain members of the Great Barrington citizens have brought before us,” Davis said in the interview. “I think it’s time to recognize that there has been a vote and that we need to move forward.”
“I personally do not feel like there is merit to the complaint,” Bannon said in a separate interview.
State response to the complaints
The complaints from Segalla and Seitz were received by the Attorney General’s office on August 16. After almost seven months of deliberation, Assistant Attorney General for the Division of Open Government Elizabeth Carnes Flynn wrote in her letter on March 14 that the state determined that the Selectboard members violated the open meeting law. “The open meeting law was enacted ‘to eliminate much of the secrecy surrounding the deliberations and decisions on which public policy is based’,” Flynn wrote, citing the 1978 legal case of Ghiglione v. School Board of Southbridge. “To that end, the open meeting law requires [e]xcept in an emergency, in addition to any notice otherwise required by law, a public body shall post notice of every meeting at least 48 hours prior to such meeting excluding Saturdays, Sundays and legal holidays. Additionally, the open meeting law requires that, unless lawfully convened in executive session, all meetings of a public body must be open to the public.”
Flynn wrote in her letter that while the Selectboard asserted that they did not form a subcommittee to review the STR bylaw, the state determined otherwise. “We disagree with the board’s characterization of the events that took place during its March 7, 2022 meeting,” Flynn wrote. “Although the board did not take a formal vote and did not use the word ‘subcommittee,’ the board discussed at length having two members work with Rembold to revise the proposed short-term rental bylaw and bring a new version of the bylaw to the board for further consideration. After a discussion of which and how many board members should work with Rembold on this effort, the board agreed that Chair Bannon and Vice Chair Davis would be the two members to do so. Although it may be the case that the board did not literally intend to create a subcommittee, based on the facts presented in this case, we find that the board’s actions during its March 7 meeting clearly created a subcommittee and that the subcommittee failed to post notice of its meetings or to hold its meetings open to the public.”
Flynn wrote that, due to the violation of the open meeting law, “We order the board’s and subcommittee’s immediate and future compliance with the open meeting law and caution that future similar violations may be considered evidence of intent to violate the law. With the understanding that any meetings of the subcommittee occurred some time ago, we order the subcommittee to create minutes for any meetings it held, to the best of its ability, using any means available, including notes, records, and the recollections of those in attendance at such meetings.”
Flynn continued, “Although we order the subcommittee to create minutes to the best of its ability, we acknowledge the potential infeasibility of accurately capturing the substance of discussions that occurred approximately one year ago during meetings that the subcommittee mistakenly believed were not subject to the open meeting law,” Flynn wrote. “We remind the subcommittee that minutes must accurately capture what was actually discussed during a meeting. Within 30 days of receipt of this letter, the subcommittee shall certify to our office that it has complied with this order by creating minutes for any meetings it held. If the subcommittee is unable to create accurate minutes for its meetings, it must, within 30 days of receipt of this letter, explain to this office in writing what efforts it made to create meeting minutes.”
Flynn added that the state would not nullify the Selectboard’s May 23 vote on the STR bylaw, nor would it grant the subsequent request to nullify the vote at the annual town meeting. “There is no suggestion that the board’s May 23 meeting did not comply with the open meeting law,” Flynn wrote. “Additionally, by the time the complaints were filed the annual town meeting had already occurred.”
When contacted, both Selectboard Chair Bannon and Vice Chair Davis said that they would not comment for this article. A discussion on the open meeting law violation is scheduled for the Selectboard’s regular meeting on Monday, March 27 at 6 p.m.
Click here for the original complaint.
Click here for the state’s response.
