Berkshire County — The Berkshire Hills Regional School Committee and the Great Barrington Selectboard are dealing with two separate Freedom of Information complaints over their executive sessions. The complaints were filed by Eileen Mooney, owner and publisher of the NEWSletter.
Back on January 11, the Berkshire Hills Regional School Committee held a one-hour executive session at the beginning of its meeting. As listed on the meeting’s agenda, the reason for the executive session was listed as “Threatened litigation – book search.” The committee did not take any action during its regular meeting regarding the executive session. It is assumed that the threatened litigation is regarding the investigation by the Great Barrington Police Department into eighth grade ELA teacher Arantzau Zuzene Galdos-Shapiro over a copy of the book “Gender Queer.” The warrantless investigation has led to both local and national controversy.
At the beginning of the January 11 meeting, the school committee unanimously approved an independent investigation by Great Barrington law firm Cohen Kinne Valicenti & Cook.
In Mooney’s complaint, which was filed on January 28 with the Office of the Attorney General, she alleges that Committee Chair Stephen Bannon committed the violation. Mooney wrote that, at the January meeting, after the school committee voted to go into executive session “to discuss strategy with respect to litigation if an open meeting may have a detrimental effect on the school committee’s litigating position,” she asked School District Superintendent Peter Dillon what the litigation was about.
She subsequently sent an email to Dillon which referenced a portion of the attorney general’s Open Meeting Law Guide in regards to litigation strategy:
Litigation Strategy: Discussions concerning strategy with respect to ongoing litigation obviously fit within this purpose but only if an open meeting may have a detrimental effect on the litigating position of the public body. Discussions relating to potential litigation are not covered by this exemption unless that litigation is clearly and imminently threatened or otherwise demonstrably likely. That a person is represented by a counsel and supports a position adverse to the public body’s does not by itself mean that litigation is imminently threatened or likely. Nor does the fact that a newspaper reports a party has threatened to sue necessarily mean imminent litigation.
In response, Dillon wrote to Mooney that he believed the letter from Galdos-Shapiro’s attorney, Howard Cooper from Todd & Weld of Boston, met the standards for having an executive session. The letter was sent to both Bannon, under his title as Selectboard chair, and to Dillon on January 5. A copy of the letter, with redacted details, has been released by the town and the committee (view the PDF here).
The letter itself, as written by attorney Cooper, does not specifically state that the law firm is going to take legal action against the town or school district, but instead requests an independent investigation into the incident.
The committee and Selectboard eventually approved the independent investigations as requested by Cooper.
In reviewing the letter, Mooney wrote in her complaint, “I do not see anything in the [Todd & Weld] letter that ‘clearly and imminently’ threatens litigation and I therefore question whether the executive session was appropriate.”
Mooney wrote that, in an email sent to her on January 19, Dillon wrote in response:
Regarding the executive session, the school committee legitimately invoked M.G.L. c. 30A & 21(a)(3) to discuss strategy with respect to litigation based on communications from the employee’s attorney, including but not limited to the January 5 letter you reference.
Mooney wrote in her complaint:
I am concerned that the school committee is unnecessarily excluding a concerned public from its discussion of a difficult incident involving local police and a book in a district school. I am especially concerned because the chairman of the school committee [Bannon] is also the chairman of the Great Barrington Selectboard. Both boards are known for well-handled meetings, models that other board chairmen also follow. Thus, if the school committee goes into an inappropriate executive session, I am concerned other boards may do this, not realizing the inappropriateness.
In her complaint, Mooney requests that the Attorney General’s Office force the school district to make public any communication made by Galdos-Shapiro’s attorney Cooper that threatens litigation. “I see no reason why the communication stating that cannot be made public,” Mooney wrote. “If there is no such communication, I request that minutes of the executive session immediately be made public and that the discussion and vote be repeated in a public session.”
In response to Mooney’s complaint, at the beginning of their February 8 meeting, the school committee held an executive session to discuss both the complaint and strategy for litigation. The committee did not discuss details of the executive session during their open regular meeting.
On February 5, Mooney filed a separate Freedom of Information complaint with the Attorney General’s Office against the Great Barrington Selectboard. Mooney did not file the complaint against one specific member but instead filed against all of the members of the Selectboard for their actions at their January 31 meeting.
Mooney’s complaint states:
At the January 31 meeting, the Selectboard went into executive session pursuant to MGL Ch. 30A sec. 21(a) for the following purpose: To discuss strategy with respect to potential litigation if an open meeting may have a detrimental effect on the litigating position of the public body and the chair so declares and return to public session.
The Selectboard went into executive session in light of the letter from Galdos-Shapiro’s attorney.
At the January 31 meeting, after an hour-long executive session, the Selectboard approved a third town-related investigation into the Great Barrington Police Department’s investigation.
“The letter requesting the investigation and apparently providing the reason ‘potential litigation’ was given as the reason to go into executive session was provided with the meeting’s agenda as a public document,” Mooney wrote in her complaint. “I question whether the board’s executive session was legitimate as hiring an investigator seems appropriate for discussion in public and nothing in the letter seems to indicate that litigation is pending. I want the Selectboard to provide evidence that litigation is imminent and why discussion of having an investigation needed to be, and under the Open Meeting Law could be an executive session.”
At the Monday, February 12 Selectboard meeting, Vice Chair Leigh Davis made a motion to delegate to town counsel to work with Chair Bannon and Town Manager Mark Pruhenski to draft a response to Mooney’s complaint. The Selectboard unanimously approved Davis’s motion.
As of press time on Tuesday, Feb. 13, there are no records on the state’s court database that list that Galdos-Shapiro has taken any legal action against the town of Great Barrington or the school district.
Click here for Mooney’s complaint against the Berkshire Hills Regional School Committee.
Click here for Mooney’s complaint against the Great Barrington Selectboard.
The Berkshire Edge’s previous coverage of the “Gender Queer” book incident at the W.E.B. Du Bois Regional Middle School:
December 17: “Great Barrington Police Department investigates middle school over ‘Gender Queer: A Memoir’”
December 22: “Chief Storti apologizes for department’s role in ‘Gender Queer’ book investigation at middle school“
December 28: “Great Barrington Police release body cam footage and report related to ‘Gender Queer’ book search at school“
January 4: “School district held private meeting to discuss ‘Gender Queer’ controversy, teacher takes leave of absence“
January 9: “Great Barrington investigating Police Department over ‘Gender Queer’ controversy, school committee to meet on Jan. 11“
January 23: “Selectboard delays voting on independent investigation of ‘Gender Queer’ incident“
February 1: “Selectboard approves a third investigation into ‘Gender Queer’ book incident at W.E.B. Du Bois Regional Middle School“
