East Longmeadow Board of Selectmen may have violated Open Meeting Law

Date: 8/4/2014

EAST LONGMEADOW – Board of Selectmen members Angela Thorpe and William Gorman may have committed a violation of the state’s Open Meeting Law at its Aug. 1 meeting at which it conducted an executive session hearing to address complaints regarding Recreation Department employee Timothy Larocca without him present.

Town Employees’ Union President Debbie Milliken told Reminder Publications that while she could not discuss the subject matter of the hearing, Larocca should have been present and in denying him the opportunity to do so, the board had violated his rights, according to state law.

“Everyone should have the opportunity to answer to what’s coming at them,” she said. “It’s never been done like this before.”

The executive session, which was also attended by Thorpe, the chair, Gorman, town labor attorney Layla Taylor, a partner at Sullivan Hayes & Quinn, and Town Counsel James Donahue, took place for approximately 45 minutes before concluding. Selectman Paul Federici was not in attendance.

According to Massachusetts General Law Chapter 30A, section 21(a)(1), a public body is allowed to meet in executive session to discuss, among other things, “the discipline or dismissal of, or complaints or charges brought against, a public officer, employee, staff member or individual.” However, the law further states that the subject of the hearing has the right to be present during deliberations that involve him or her and has the right to be heard. The subject also has the right to be accompanied by counsel or a representative for the purpose of advising him or her, and to take his or her own record of the session, either by audio tape or transcription at his or her own expense.

Milliken explained that through the union’s legal counsel, Larocca requested the hearing be rescheduled because he would be out of town on an already scheduled training, but the request was denied. Recreation Director Colin Drury, who was also subject of a separate hearing, said the letters informing him and Larocca of the hearings said they did not have to be in attendance.

Drury explained that Larocca was taking part in the U.S. Soccer Coaching School taking place at Harvard University in Boston to renew his United States Soccer Federation Class “A” coaching license and he had planned to participate in that program for months. Larocca is also director of coach and player development for the East Longmeadow Soccer Association, an assistant men’s soccer coach at Western New England University and director of boys programs for FC Stars of Massachusetts – West.

According to information on the program’s website, the school runs from Aug. 1 to 5 with a $950 tuition that must be paid upon confirmation of eligibility for the program. Registration took place from noon to 1:30 p.m. on Aug. 1, followed immediately by commencement of the program. Larocca’s hearing with the board, which was posted in accordance with state law, was scheduled for 12:30 p.m.

The program also stipulates that anyone who cancels their reservation for the course less than 30 days prior, regardless of circumstance, would forfeit 50 percent of the tuition and those who do not attend for any reason without cancelling in advance would forfeit their entire course tuition.

Thorpe would not comment when queried about the reasoning behind denying Larocca’s request to move the meeting to another date.

“You have inquired about a matter which was discussed in executive session, and the reasons for it being held in executive session still apply. Therefore, I must respectfully decline to answer any questions about this matter at this time,” she said.

A request for comment from Taylor regarding the legality of the proceedings was also not immediately returned.

Representatives from the Attorney General’s Office declined to comment on the legality of the proceedings. In order for the Attorney General’s Office to make any determinations regarding potential violations, an investigation would have to take place, which can only be initiated if an Open Meeting Law complaint is filed.

A continuation of Larocca’s hearing was scheduled and posted for Aug. 6 at 12:30 p.m.

Following Larocca’s hearing, Drury was subject to a hearing of his own to address complaints surrounding the handling of a private soccer clinic run by East Longmeadow High School girls soccer coach Jennifer Serafino by his department.

Drury confirmed that he received notice of the hearing on July 30 when a letter was served to him at his office by a uniformed police officer. Police Chief Douglas Mellis told Reminder Publications his department has delivered similar notices to town employees at the Board of Selectmen’s request in the past.

While Thorpe did not respond to requests for comment, on her Facebook page, on Aug. 1 she wrote, “When there is a complaint, and the board decides to move forward with the complaint, these are things that happen[:] 1) A 'form' letter is sent to the person or persons listed in the complaint[;] 2) In the form letter there is standard language that depicts the best scenario and the worst scenario and gives the person a right to or not to hold the hearing in public session. (I am told that today was the first time the session has been held in open session)[;] 3) the letter, in the past and to present date is delivered by a policeman to make sure the letter is delivered and to make sure the person listed in the complaint has the opportunity to defend the allegation by appearing with or without witness[;] 4) the person is able to have an attorney present if that is their preference.
   
“All the above is typical and standard in East Longmeadow [Board of Selectmen]. So if someone tells you different, they are truly misinformed,” she concluded.

Drury declined executive session in favor of an open session at which a number of department heads, including Planning Director Robyn Macdonald, Council on Aging Director Carolyn Brennan, Information Technology Director Ryan Quimby and Mellis, as well as a number of town employees and residents were in attendance to support him.

After Thorpe started the hearing, Drury attempted to raise a point of order, objecting to the legality of the hearing, but Thorpe did not allow him to interrupt her and made him wait until she finished reading into the record Drury’s notice of the hearing. According to Robert’s Rules of Order, a person raising a point of order may interrupt the speaker.

In reading the notice, Thorpe stated the complaint had been filed by Serafino, who Thorpe said had appeared before the board “several times” regarding Drury’s job performance, a statement that drew quizzical looks between Serafino and her husband. The Serafinos previously appeared before the board in open session on June 30. Drury told Reminder Publications that since that meeting, he has been privy to no additional meetings regarding any concerns raised by Serafino.

When given the opportunity to speak, Drury said to conduct the hearing at the present time would be in violation of his employment contract.

“While I was given written notice by Mrs. Thorpe that there would be a hearing today, I was never informed, in writing or otherwise, what the complaints are that are being made against me. This is in clear violation of section eight of my contract, which reads that I am to be given a written list of charges or complaints prior to the meeting,” he said. “Without such a list, I am clearly at an unfair disadvantage regarding how to address the complaints and defend myself. Without this list, there is no transparency in the process. I therefore ask that I be given a list of complaints and time to prepare for this hearing.”

Thorpe argued the meeting should continue in spite of Drury not receiving the written complaints, stating the subject of the complaints would be the same subject matter discussed during the June 30 meeting.

“The same complaint that [Serafino] made earlier when she came into the Board of Selectmen’s meeting for an appointment [on June 30]; the same thing she said then is the same thing she’s addressing now, it’s just that she has decided she would like to have a hearing,” Thorpe said.

At that time, Recreation Commissioner Thomas Kennedy, who was present on June 30, objected, stating the conversation that day was “very general; there was no complaint.”

Thorpe retorted, “It was a conversation at first, however, it has gone to a hearing, and that’s why we are here – to hear whatever [Drury] has to say. It is the right of the taxpayer to make a complaint and to have a hearing.”

At that point, Taylor cautioned the board against potentially violating Drury’s contract. While she was not familiar with his specific employment agreement, she recommended tabling the discussion until Aug. 6, in order to give Drury the opportunity to receive the written complaints and prepare a response.

Thorpe said she believed Drury had received a written complaint. She tried to advance the hearing again and allow Serafino to read her complaint into the record, stating the board would provide Drury a copy of the hearing transcript of the testimony so he could prepare a response for Aug. 6.

Donahue pointed out that Serafino could only read her complaint into the record on Aug. 1 if it was satisfactory to Drury, at which time Drury reiterated that he would require a written list of complaints before a hearing could proceed.

Thorpe agreed at that point that if he wasn’t comfortable, the hearing would be rescheduled to Aug. 6 at 3:30 p.m. and in the meantime, Drury would receive a copy of the complaints. That hearing has since been posted.

Listen to the dialogue between Drury and the board here: