WOODSPONDPCB2020-3.jpg (copy)

This aerial view of Woods Pond shows the Housatonic River entering the pond at the north end. The Upland Disposal Facility for lower-level PCBs is planned for near the south end in Lee.

Five South County towns have been cleared of complaints that their officials violated the state’s open meeting law by discussing the current Housatonic River PCB cleanup plan in private sessions a year ago.

But, two towns, Sheffield and Stockbridge, were found by the Attorney General’s Office to have failed to provide adequate notice about the purpose of allowable executive sessions. And Lenox and Sheffield were ordered to make public the minutes of those meetings.

Opponents of the Environmental Protection Agency’s latest river cleanup permit, issued in December, filed complaints last year about possible open meeting law violations by the five towns. Those meetings were convened as the towns moved, ahead of a Feb. 10, 2020, announcement, to endorse a deal reached through more than a year of secret talks.

Residents want to stop a plan that allows the General Electric Co. to bury sediments tainted with lower levels of polychlorinated biphenyls in a newly created Lee landfill. The deal, known as the “Rest of River” cleanup, follows decades of earlier efforts to confront the toxic legacy of GE’s transformer plant in Pittsfield.

PCBs are listed as a probable carcinogen. A previous EPA permit ordered GE to ship all tainted sediments to treatment sites outside Massachusetts.

In five separate decisions released Tuesday, the AG’s office found that executive sessions held by the towns to review and approve the settlement announced Feb. 10, 2020, were, in theory, permitted, if properly called, under the provision that allows municipal boards to meet in private to discuss pending litigation.

“We conclude that the discussions in executive session fell within a proper statutory purpose,” KerryAnne Kilcoyne, an assistant attorney general, wrote to the Sheffield Select Board, echoing language in her other decisions. “The Board’s executive session discussions were appropriate … because they related to pending litigation and a settlement agreement that was a proposed resolution to that litigation.”

Here are capsule summaries prepared by The Eagle for each of the cases handled by Kilcoyne, who works in the attorney general’s Division of Open Government.

Great Barrington

  • The complaint: That the Select Board improperly met in executive session between Feb. 1 and Feb. 10, 2020.
  • The complainants: Holly Hardman and Susan Jennings.
  • Key finding: The board did not hold executive sessions during either of its two meetings in that time period, on Feb. 4 and Feb. 10.
  • AG order: “Because the Board did not convene in executive session on either February 4 or February 10 to discuss the settlement agreement, it did not violate the Open Meeting Law.”

Lee

  • The complaints: The Select Board failed to hold open meetings regarding the proposed settlement and failed to allow public participation in the decision to endorse the deal.
  • The complainants: Clare Lahey, Suzanne Salinetti and Matt Kelly.
  • Key finding: The board held a Feb. 4, 2020, executive session, but did so lawfully under the open meeting law’s provision for private discussion of pending litigation. The board was not required to return to open session to ratify the agreement.
  • AG order: No violation. On the issue of allowing public participation raised by the complaints, Kilcoyne wrote that the law does not require that a board allow such participation. “The law permits the Chair of the Board to decide who may speak at a meeting and for how long,” she wrote. “Thus, it is not a violation of the law if the chair decides not to allow any public participation during a meeting. We do, however, encourage public bodies to allow for as much public participation as time and circumstances permit.”

Lenox

  • The complaints: The Select Board held improper executive sessions in the Feb. 1-Feb. 10 time period in 2020. And it failed to provide a timely release of its executive session minutes.
  • The complainants: Sage Radachowsky, Deanne Markham and Virginia Schwerin.
  • Key finding: The board’s Feb. 5, 2020, executive session was properly posted and described.
  • AG order: The board must release minutes from its private session. “We find that the Board did not violate the Open Meeting Law by improperly meeting in executive session. However, we are not persuaded that the purpose for the executive session remains ongoing and order the Board to release the February 5 executive session meeting minutes, unless the attorney-client privilege or an exemption to the Public Records Law applies,” Kilcoyne wrote.

Sheffield

  • The complaint: The Select Board held an improper executive session.
  • The complainants: Peter and Melissa Martin.
  • Key finding: The private meeting held Feb. 3, 2020, was allowable under state law, but the agenda item failed to properly and adequate describe the purpose of the session, listing it only as related to the “Rest of River” cleanup issue.“Here, the Board provided neither a statutory citation nor a sufficient description of the executive session purpose,” Kilcoyne wrote. “We order immediate and future compliance with the law’s requirements and we caution that similar future violations could be considered evidence of intent to violate the law.”
  • AG order: The board must release minutes of the Feb. 3, 2020, session, without any redactions, within 30 days.

Stockbridge

  • The complaint: That the Select Board held an improper executive session Feb. 4, 2020.
  • The complainant: Meghan Carlotto.
  • Key finding: While the private session was allowable, the board provided insufficient information about its purpose. The notice cited state law and mentioned litigation, “but did not identify the specific litigation matter,” Kilcoyne said, as is warranted.
  • AG order: No relief was granted, since the board already has made public the minutes from the session.

Larry Parnass can be reached at lparnass@berkshireeagle.com and 413-588-8341.

Investigations editor

Larry Parnass joined The Eagle in 2016 from the Daily Hampshire Gazette, where he was editor in chief. His freelance work has appeared in the Washington Post, Boston Globe, Hartford Courant, CommonWealth Magazine and with the Reuters news service.