Selectboard contemplates litigation over Housatonic Water Works rate increase

The town, apparently, is now considering a more active role in the anomaly, as Town Manager Jennifer Tabakin had declared before the DPU, of “a privately owned company that provides public water.” This report newly updated with statements by Town Counsel David Doneski regarding two executive sessions dealing with the Housatonic Water Works Company.

Great Barrington – Despite challenges from the media, the Great Barrington Selectboard, at the conclusion of their open meeting Monday (August 8), went into executive session Monday night to – as board Chair Sean Stanton explained – “to discuss the [proposed] Housatonic Water Works Company (HWWC) rate increase and litigation.”

The Village of Housatonic as seen from Flag Rock. Photo: David Scribner
The Village of Housatonic as seen from Flag Rock. Photo: David Scribner

The privately-owned water company serving 1,400 customers in the village of Housatonic, has been under fire from the Department of Environmental Protection for the safety of the village’s drinking water, most recently for the detection of elevated levels of lead and copper in 20 randomly selected residences. At the same time the company is requesting Department of Public Utilities (DPU) permission to raise its rates by a whopping 34 percent for the average user.

HWWC contended that it needed more cash to pay for state-mandated upgrades to the antiquated system.

In a hearing January 27 in the Housie Dome before the DPU, Housatonic residents vented frustration with the proposed hike in water fees, and Town Manager Jennifer Tabakin vented frustration with the lack of details that would justify the application for the rate increase.

The town, apparently, is now considering a more active role in the anomaly, as Tabakin had declared before the DPU, of “a privately owned company that provides public water.”

Town Manager Jennifer Tabakin addressing the DPU during a hearing in the Housie Dome in January on the proposed Housatonic Water Works rate increase. Photo: Heather Bellow
Town Manager Jennifer Tabakin addressing the DPU during a hearing in the Housie Dome in January on the proposed Housatonic Water Works rate increase. Photo: Heather Bellow

After the opening meeting ended, the board voted unanimously to go into executive session that would include a conversation by phone with Town Counsel David Doneski of Kopelman and Paige. Stanton noted that Doneski had advised the board that the status of their discussion about HWWC did call for an executive session. The four selectboard members then retired to the privacy of their office.

Eileen Mooney of The Newsletter loudly object, pointing out that a discussion of litigation over water rates did not qualify, under Massachusetts open meeting laws, for an executive session. She cited a memorandum from attorney Gregg Corbo, also of Kopelman and Paige, that stated: “To justify an executive session to discuss litigation, the AG has stated that the mere possibility of litigation is not sufficient.  Litigation must be pending or clearly and imminently threatened or otherwise demonstrably likely.”

She requested Stanton ask Doneski again about this seemingly different opinions from attorneys from the same law firm. He said he would, and if she were correct, the board would return to the Town Hall meeting room in 10 minutes.

Selectboard member Stephen Bannon seemed as disturbed as Mooney about the possibly contradictory advice from counsel, and said that he would leave the discussion if there were any doubt about its legality.

After 15 minutes elapsed, Stanton came back to the meeting room to report that the selectboard was “negotiating rates with the company, and Town Counsel says that potential litigation is pending,” thereby justifying the appropriateness of the executive session.

He then returned to the executive session.

Early the next morning, Town Manager Jennifer Tabakin emailed The Edge two communiqués from Town Counsel Doneski.

“Attached are two statements from our Town Counsel that were prepared in response to your questions regarding executive session and open meeting law.  One statement was from May and the other in response to the meeting last night,” she wrote.

The two statements are reproduced below, with the first concerning the Monday night (August 8) executive session, and the second addressing the executive session of May 2, 2016. Both sessions dealt with the Housatonic Water Works Company:

STATEMENT REGARDING SELECTBOARD EXECUTIVE SESSION OF AUGUST 8, 2016

REGARDING HOUSATONIC WATER WORKS COMPANY

The pending water rate case of the Housatonic Water Works Company with the Massachusetts Department of Public Utilities is an adversarial proceeding that may be treated as a litigation matter by the parties involved. The petition the Company filed with the DPU in December of 2015 begins an adjudicatory-type process, which, if not settled among the Company, the DPU and other parties with intervenor status, such as the Town, will be the subject of a formal, adversarial hearing held before a hearing officer of the DPU. The state’s Public Utilities Commission is the body responsible for making a decision on such a hearing. When the Commission acts on rate cases of utility companies, it acts in a “quasi-judicial capacity” for the purpose of making a decision in “an adjudicatory proceeding.” (Refer to Attorney General’s Open Meeting Law Opinion OML 2015 – 103, July 21, 2015.) For purposes of the Open Meeting Law, the executive session of August 8, 2016 was for discussion of a pending litigation matter, and the agenda for the meeting included that information: “Pending litigation matter – Housatonic Water Works rate increase petition to Department of Public Utilities, D.P.U. No. 15-179.”

STATEMENT REGARDING SELECTBOARD EXECUTIVE SESSION OF MAY 2, 2016

REGARDING HOUSATONIC WATER WORKS COMPANY

The pending water rate case of the Housatonic Water Works Company with the Massachusetts Department of Public Utilities is an adversarial proceeding that may be treated as a litigation matter by the parties involved. The petition the Company filed with the DPU in December of 2015 begins an adjudicatory-type process, which, if not settled among the Company, the DPU and other parties with intervenor status, such as the Town, will be the subject of a formal, adversarial hearing held before a hearing officer of the DPU. The state’s Public Utilities Commission is the body responsible for making a decision on such a hearing. When the Commission acts on rate cases of utility companies, it acts in a “quasi-judicial capacity” for the purpose of making a decision in “an adjudicatory proceeding.” (Refer to Attorney General’s Open Meeting Law Opinion OML 2015 – 103, July 21, 2015.) For purposes of the Open Meeting Law, the executive session of May 2, 2016 was for discussion of a pending litigation matter, and the agenda for the meeting included that information: “pending litigation matter, Housatonic Water Works Company, D.P.U. No. 15-79.”