[0:03] Good morning everyone. I would like to call this September 3rd meeting of the

[0:08] conquered light board order. I'm John Dalton

[0:12] chair of the light board. We'll start with a roll call.

[0:18] Chris Schaffner >> Here.

[0:23] » Lauren Leon >> Here.

[0:27] » Nicole Brosner >> Here.

[0:30] » Jason Kuczynski >> Yeah.

[0:34] » Great. And John Dalton is also here as chair.

[0:39] Our first order of business is to discuss an open meeting law complaint

[0:46] which was filed in

[0:49] August.

[0:53] Jason, will you be discussing that initially or

[0:57] with town town council? >> And so I'll just at this moment

[1:01] introduce Mina Makaryous who is town council

[1:06] who we we've consulted with on this matter and Mina can kind of give you an

[1:10] overview of the process for handling such a complaint. Welcome Mina.

[1:20] » Mina, over to you. >> Good morning everyone.

[1:24] As Jason mentioned, my name is Mina Makaryous and town council. The process

[1:31] for responding to an open meeting law

[1:34] complaint is as follows and we can get into the

[1:37] substance of this particular one. When a complaint is received, the board

[1:43] or committee that uh has has a complaint filed against it uh

[1:49] needs to meet within 14 meet and respond within 14 business days

[1:55] um, discuss the complaint, uh, address if there's any remedial action it should

[2:00] take, um, really to make sure it understands whether, you know, a mistake

[2:05] was made and then, um, and then address it if needed. Um, the,

[2:10] uh, board can, at that meeting, uh, delegate a response to, uh, to staff or

[2:17] to counsel or to to somebody else, um, which is, as you'll see, what we're

[2:21] recommending in this case, um, and then the written response has to go back to

[2:26] the complaining party and the, um, with a copy to the Attorney General's Office.

[2:32] The Attorney General's Office does not, immediately, typically, uh, review the

[2:38] complaint, uh, they wait to see if the, um,

[2:43] response from the public body is, uh, satisfactory to

[2:47] the, um, the party that made the complaint. Um,

[2:51] if not, um, once a certain period of time has passed, um, the the that party

[2:59] can then, um, sort of file directly with the Attorney

[3:03] General to ask for them to review it. Um, so, that and then from there, the

[3:09] Attorney General's Office, um, will review and decide whether to issue

[3:14] to to sort of to, uh, provide any further guidance, issue any, um,

[3:19] reprimand or requirement for training. Um, in very rare cases, they may, um,

[3:25] suggest a, uh, they they may require something more

[3:30] drastic, such as rescinding decisions taken in in in, um,

[3:35] in during a meeting that wasn't where that didn't comply with, um, the Open

[3:39] Meeting Law or penalties. That's usually reserved for intentional violations and

[3:44] to be clear, an intentional violation is typically a repeated violation where

[3:49] the AG has been clear on a topic and there hasn't been uh, and there's

[3:54] not compliance. It is not the same as uh being told by, you know, one one member

[4:00] of the public, we don't think this is the right way to do it and and a good

[4:04] faith disagreement of the policy. So, that's just just as a as as background.

[4:09] So, that's that's it on the process before we get into the substance. Any

[4:12] questions there?

[4:16] » Questions by any board members? >> No, seems pretty straightforward.

[4:25] » Um so, in in this case, um when the complaint was filed, um

[4:31] Jason uh had reached out to us to discuss the um

[4:36] the potential uh you know, just sort of understand

[4:39] what where the answer um

[4:43] what the answer might be in terms of the appropriateness of the actions uh one

[4:50] way or another. Um and to uh start thinking about what our

[4:56] response might look like. Um

[4:58] we have, I believe in your packet, there is a draft response, uh which kind of

[5:04] lays out those those things uh both sort of what we think of the

[5:10] the merits of the claim and a proposed response.

[5:14] Um I'm happy to walk through that in a little bit of just to sort of cover

[5:19] that, but I don't know if folks have questions or have had a chance to read

[5:23] it and want to discuss first.

[5:27] » Yeah, if people have board members had an opportunity to read it, is there any

[5:31] questions they want to pose or uh would it be beneficial to have

[5:36] » I I did read through it, but I think it'd be beneficial to get a quick

[5:39] overview to make sure my understanding aligns. It It sounds like basically

[5:42] we've said there are several different reasons why we're uh

[5:48] you know several different responses were giving it sounds like one is that

[5:51] just the complaint was not timely and then

[5:54] additionally we were doing what we normally do as a light board negotiating

[5:59] a PPA. Those are basically the responses but

[6:02] I'd I'd love a little more insight and detail.

[6:04] » Sure. Yeah. Um

[6:08] So the um

[6:11] the the way you'll see that our answer proceeds so let let me start actually

[6:15] with the complaint itself. They um the issues listed in Mr. McCown's complaint

[6:23] um you know he he lists uh three.

[6:26] Um but they they really revolve around one

[6:30] one key issue which is the what he defines as the improper use of

[6:35] exemption um 10. Um

[6:40] exemption 10 excuse me. Sorry. Early morning voice here.

[6:45] Um exemption 10 is a is intended to protect um

[6:52] confidential information um in

[6:56] in negotiations in involving um energy procurement in particular. Um

[7:02] so you you all probably encounter it more than than other boards and

[7:05] committees in town. It doesn't it is not you know the it is a rare rarely

[7:10] encountered at the AG's office from the OML complaints but um

[7:14] has come up a few times. Um the um the second

[7:21] um and kind of related piece here is that Mr. McCown is alleging that you

[7:26] know that when you went to executive session

[7:28] um you were talking about the um

[7:31] the the the placement of solar panels on the

[7:36] middle school roof which is really a real property discussion and should have

[7:40] been governed by section six. Section six, as

[7:43] he correctly points out, does have a requirement or exemptions, excuse me,

[7:47] does have a requirement that the chair declare that an open meeting would have

[7:51] a detrimental effect on the negotiating position of the town.

[7:55] And then he has a sort of related

[7:59] allegation that you were doing this to conceal a single source

[8:04] procurement. As you'll see in our response, we we

[8:07] address each of these and and provide a bit more guidance on them.

[8:12] One as a

[8:15] as a as a starting point, I think Mr.

[8:18] Schaffner started mentioned this point. The complaint was filed more than 30

[8:23] days after your meeting, which would normally make it

[8:28] untimely and not subject to review. Mr. McCone hints at this in his in his

[8:35] documentation that he couldn't have filed

[8:38] sooner because he didn't learn of what you were discussing until

[8:43] you know, later when I believe he

[8:49] refers to the the minutes having been approved with the town clerk. The

[8:57] our view on that is that while there is a rule

[9:02] under in in terms of open meeting law cases about you know,

[9:07] complaints or excuse me, issues that could not have been discovered timely if

[9:11] a board sort of met in secret and no one knew about it until something happened

[9:15] until something was revealed later, complainants wouldn't have any reason to

[9:19] know. In your case, that that didn't happen.

[9:22] There were your meetings were where you had this discussion, where you went into

[9:27] executive session and why you were going into executive session was publicly

[9:31] posted. You had the meeting in in open session.

[9:36] You announced the purpose of the open session on July 8th as far as I

[9:40] understand and and I, you know, I guess I would ask to make sure that the board

[9:45] agrees with these facts. I know we've reviewed it with staff. Um,

[9:50] there was um, there there was a conversation that

[9:54] there were two power supply contracts to consider and that that's why you were

[9:57] going into executive session. So, you're clear about why you were doing this.

[10:01] Um, and um, all of that was public information

[10:06] at least as of the date of the meeting, um, which is more than 30 days before

[10:10] the complaint. Um, and you you stated which purpose you

[10:15] were going under, um, into executive session.

[10:18] Um, so from our perspective that the complaint is is not timely filed.

[10:23] Um, and I guess all what I would like to do

[10:27] is just stop at every sort of section of the letter and make sure that there's no

[10:31] disagreement with the facts as stated or the

[10:34] uh, folks' recollection of of what happened.

[10:38] » Any comments from the board members?

[10:41] » Yeah, I would one clarifying question. You know, I think one of the things that

[10:44] makes this unusual is that we were having a meeting and then it had to be

[10:49] stopped because we were having issues with with Zoom and then we rescheduled.

[10:54] So, how does that affect any of what we're talking about here as far as the

[10:57] timeliness or or any other factors? >> Sure. Um, so

[11:02] um, the the

[11:05] the Zoom the Zoom interrupted meeting was on July

[11:09] 8th as I understand it. Um, when you picked it back up, it was

[11:13] July 14th. Uh, that's when you went back into

[11:16] executive session. That was also duly noticed.

[11:19] Um, so couple of things. There there is no requirement that um, you know, if if

[11:25] the once the Zoom was interrupted, you you you did the right thing. You figured

[11:29] out that um, you were losing sort of access to or the

[11:33] public was losing access to your meetings. You you decided to reschedule

[11:36] from there. Um, the when you went back to on July

[11:40] 14th, you did essentially the same thing, went back into that executive

[11:43] session. The complaint wasn't filed till I believe August 19th, so still more

[11:48] than 30 days. So, for the purposes of this

[11:51] of the timeliness issue, it doesn't affect it.

[11:54] Um, it may have caused some initial confusion about when you would go in,

[11:57] but I don't think there's any allegation that you went into executive session

[12:02] on the 8th, which you could have done, um,

[12:05] if if the Zoom was working for the board but not for the public, um, but you you

[12:10] you know, didn't didn't do that. There's also, um, I mean, we this is not an

[12:14] issue in this complaint. There are um, pretty limited requirements of when the

[12:19] board has to stop a meeting just because technology is not working.

[12:26] » All right. Yeah.

[12:29] Um, I agree with your description of the facts related to the

[12:36] timeliness of this, and um,

[12:41] but I would love for the response to be a

[12:46] little briefer on this point. Only because even though

[12:53] you're right on the facts, the fact that we go on to actually take up the

[13:00] complainant's complaint means that

[13:06] we're not hinging ultimately our response to the issue of the timeliness.

[13:11] So, it's somewhat of a secondary issue. Um,

[13:18] I and it seems like it gets the most attention in the um, response.

[13:25] » Um, I I I appreciate feedback. Um, I think I

[13:30] cuz I I can tell you when we were drafting it, you know, had the same

[13:34] um, thought. You know, I I think there's sort of two things to keep in mind and

[13:39] why I would recommend keeping it um, in this way. One is that um, I think simply

[13:46] just takes a little longer to get out um,

[13:49] because there's a back and forth on sort of what was said. You know, it's there's

[13:53] sort of more facts there as opposed to explaining

[13:56] the legal positioning of it. Um, the second is from the Attorney General's

[14:01] perspective, if they're asked to review this later, um, it's been our experience

[14:06] that they they care about making this

[14:09] determination first. Um, they have limited resources to review all

[14:14] complaints and so if they are satisfied that a complaint is untimely,

[14:19] um, they will normally stop there. So, I want to make sure they had all the facts

[14:24] they needed in case this goes further to them.

[14:27] » Okay, thank you. >> Yeah.

[14:29] Um, but but I but I I hear you and I think

[14:33] part of the you know, if folks are ready to move on to the other part, we do

[14:37] typically when you you know, unless something is flagrantly untimely, uh,

[14:43] we've had somebody file a year late in one town. Um, the you know, we do like

[14:49] to at least address the merits as well just to make sure that there's sort of a

[14:52] good faith discussion of that. And I can turn to that next. Um,

[14:57] the um, the upshot on the merits and this actually kind of factors into the

[15:03] both um, um, into

[15:07] both of the sort of uh, points about section 10 and section

[15:10] six is I think there's some confusion from from the complainant about what is

[15:15] actually being discussed in um, in executive session and what it means for

[15:22] um the application of section 10. Um as we point out um

[15:28] first the purpose 10 um

[15:31] is you have the language there in the

[15:34] letter is um involves competitively sensitive

[15:38] information. Um provided in the course of activities

[15:43] conducted by a governmental body. Um

[15:47] And and it involves um entities licensed under chapter 1641F.

[15:55] Um in your case you have you were receiving that information and it is and

[16:02] you were using it. Um that is um a purpose um

[16:08] that that that meets a purpose of section 10. Um because disclosing that

[16:13] information while discussing PPA pricing uh would impair the ability to get the

[16:18] most competitive deal on the power supply contract. Um we explain that you

[16:22] know that reasoning is is is how um

[16:27] is how section 10 is typically applied. Um it's um you have some some latitude.

[16:36] Um in in what exactly needs to be discussed

[16:41] in executive session to sort of make sure you have um the proper protection

[16:46] for for that information. Um and that was sort of why you went in. I think

[16:51] that just to sort of state the point about the real estate side of this. Um

[16:56] there there's also an assumption here that because you were talking about how

[17:00] the PPA pricing might be related to um or possibly could have been talking

[17:07] about the PPA pricing relating to the middle school project that you were

[17:10] talking about real estate discussions. However, as is pointed out here you you

[17:15] you have um you don't have a role in

[17:20] um the handling of municipal or school real estate. Um so that that purpose

[17:26] would have been the appropriate purpose if the school committee or the select

[17:29] board was going into executive session to discuss the rooftop, but in your case

[17:34] you were talking about the pricing of it, so that is not the proper purpose

[17:38] for it. So we we've laid that out as sort of what the explanation for for

[17:42] those two things. So any questions, thoughts there?

[17:48] » No. >> Questions by the board?

[17:54] » No, I got it. Seems pretty straightforward.

[17:57] » Um and then the the last point um you know, concealing single source

[18:01] procurement um the again, you know

[18:07] uh the first point is worth is one sort of repeated from above. The board has no

[18:12] power to dispose of municipal property, so that's not what you were doing. Um

[18:17] and you were not and you're not involved in that.

[18:19] Um second, there are exemptions applicable to um

[18:25] energy and energy-related procurements and and so you weren't trying to conceal

[18:30] anything. Um and and I think the sort of larger point

[18:34] is that the um single source um procurement is not um

[18:43] it whether whether or not the procurement is ultimately in um done in

[18:47] the appropriate way, which we think it it it it we there's a pathway to do in

[18:52] the appropriate way, is not an open meeting law issue. The the last point

[18:57] about the sort of intentionality here um relies on a comment from Mr. Banfield uh

[19:04] urging you to essentially have the meeting as quickly as possible. Um it's

[19:08] I I think worth noting Mr. Banfield is a select board member, he's not a member

[19:12] of your board. He doesn't does not and in fact did not dictate when you would

[19:16] go back into executive session. You decided that on your own.

[19:21] And even if he had frankly his urging that you meet soon but within

[19:26] the proper notice with the proper notice needed under the

[19:30] open meeting law doesn't make it an open meeting law

[19:34] violation or let alone an intentional one. He wasn't by any means suggesting

[19:39] that you violate any law by saying do exactly the thing you meant to do on the

[19:44] 8th before the zoom interruption but please do it soon. Don't wait another

[19:48] month cuz we we think you should consider this

[19:50] sooner. That's just something that any community member could urge you to do.

[19:54] So from our perspective there's certainly no

[19:58] intentionality in intentional violation. We don't think there's any violation.

[20:04] And certainly no

[20:08] sort of nefarious purpose from from that statement.

[20:15] » Any comments, questions from the board? I mean I I think it's pretty apparent

[20:19] right that that the 14th meeting was a continuation of the July 8th

[20:24] meeting which was you know appropriately scheduled and one where I think there

[20:29] were two items for the executive session. You know both of which

[20:33] pertaining to power purchase agreements. So

[20:35] I think that helps to address that question.

[20:39] Any any other comments from board members or questions?

[20:48] » So Nina at this point um you know would you recommend that the

[20:53] board move to kind of you know name you as the person

[20:58] responding on their behalf and then you know approve the

[21:02] kind of language in here or is there any other step before that?

[21:08] » Uh nope, if there is agreement that this accurately reflects the facts of the the

[21:13] meetings and the board's position, um I believe Jason you have you have a

[21:17] draft motion to that effect and and yes, so you can you can go forward with that.

[21:20] So. >> Yeah, Chris, do you

[21:22] » Yeah, so I just everybody is comfortable with the memo

[21:26] as drafted. I mean, it seems like we we aren't based on the discussion we've

[21:30] had, but just to confirm. >> Yeah, I

[21:34] I'm very comfortable with with it. I I have a I guess

[21:37] is it worth just explaining a tiny bit more of the uh the program

[21:42] that the state has set up that we are looking at using potentially for for

[21:49] that project uh because I think that was one of the

[21:53] concerns in the the idea that it was a single source.

[21:56] Uh but it's actually a you know, a a public bidding process that the state

[22:01] has set up for municipalities to and and and folks like us to use.

[22:07] Um I I don't know if there's any more detail that someone could provide on

[22:11] that. I think I think that would be worth

[22:14] us repeating here.

[22:17] Or have I confused everyone more? >> Uh Mr. Shaffner, I'm happy to sort of

[22:22] point uh sort of explain it in a very at a very high level um the the kind of

[22:27] program and why you know, how how it relates to section 10. I do think

[22:32] because it's not the topic of your agenda

[22:35] today, you know, I don't want to get too far and I don't think the board should

[22:38] deliberate on its use. Um you know, it's a state comply with the open meeting

[22:42] law, but essentially the reason, you know, we we think this

[22:47] going into a discussion um of pricing um for uh

[22:53] that came from from as Select Energy, a developer um who had who is the had

[23:00] procured um um

[23:04] who's whose role and the pricing, um, had been procured through, um, the power

[23:10] options entity, um, is, um, fits under section 10. And essentially, it's

[23:16] because power options itself is an energy broker that is licensed by DPU

[23:20] under the the statute that's referenced in the letter and in the statute. Um,

[23:25] and so, the the the way that, um, that those procurements

[23:31] work, there there is, as you mentioned, there is a sort of public procurement on

[23:35] the state level that happens where that pricing comes in. It's not it's it's not

[23:40] selecting a developer and taking whatever price that they say. It is

[23:43] relying on a uh in part on a on a public procurement of energy prices. That's

[23:48] actually intended to bring the leverage of of of sort of a larger program,

[23:52] multiple municipalities, etc. And and the idea is that uh from the state is

[23:56] that that leads to better better pricing. Um, and that's what you

[24:00] were exploring as an option um in this situation.

[24:04] » I think what Chris is trying to maybe hint at is to make that clear within the

[24:07] letter for the reader cuz maybe the AG or whatever isn't as

[24:12] familiar with that. >> Yeah, I I mean I I think I I just I see

[24:16] item three in the violation, concealment of single source procurement. And to me,

[24:20] that's a very serious concern. Um, and it's not really an open meeting

[24:26] complaint. It's a separate complaint. And so, well, I I think it's okay that

[24:31] we don't address that in any more than we have in this

[24:36] response. I I think it's important for us to be

[24:39] clear to the people of Concord that we are not

[24:43] in any way doing single source procurement. We're following uh our

[24:47] approved program uh that went through that follows public

[24:51] bidding rules. >> Correct. Yeah. And and And I guess, um,

[24:56] to the last point uh Mr. Paczynski's point that yes, that is

[25:02] um it while it's not an open meeting law

[25:06] point, I you know, the the the board is going through a process that follows

[25:10] open open procurement rules. I think that is

[25:13] clear.

[25:18] » But to the points that Chris and Tyson were making

[25:22] adding in two or three more sentences explaining what power options

[25:29] is identifying power options a little more clearly might be useful if not for

[25:36] the AG's office for the public in Concord.

[25:39] » Um we can certainly do that

[25:43] add a a sentence or two. What I don't want to do is try to litigate the

[25:48] appropriateness of a procurement through an open meeting law complaint. I don't

[25:51] think that's fair to you or the public. Yeah. So but I

[25:55] um but that is um we can certainly do that.

[25:58] » I I think actually the last paragraph in section

[26:01] » it's addressed pretty >> Yeah.

[26:04] » Yeah, on page four. >> my purpose of raising it here was more

[26:07] to call attention to it for the people on the call.

[26:12] Okay, so with that I'm going to make a motion if that's okay. That's an verbal

[26:16] action now and I move that the board authorize town council to respond to the

[26:20] open meeting law complaint dated August 18th, 2026 [clears throat]

[26:23] in substantially the form of the draft printed in this meeting's packet.

[26:28] » Second.

[26:32] » Nicole. >> Yes.

[26:34] » Tyson. >> Yes.

[26:38] » Chris. >> Yes.

[26:41] » Lauren. >> Yes.

[26:43] » And I'm also a yes.

[26:46] So I guess with that

[26:49] we've addressed the one item in our meeting.

[26:53] Anything else? >> Uh

[26:55] um No, I think that's it on this piece, but

[26:59] uh I'll turn it back to Mr. Balder if there's anything

[27:03] » I have nothing else other than to ask Mina, is it typical to take public

[27:07] comment for meetings like this? So, we typically do that at our monthly

[27:10] meetings that we're having one next month.

[27:13] » Uh >> Sure.

[27:14] » [clears throat] >> Looking looking at your agenda, I don't

[27:17] believe um >> Well, we had not posted

[27:21] » not Yeah, there there is no requirement uh or or necessarily an expectation that

[27:26] when there's an open meeting law that you need to take public comment.

[27:28] » Okay. I just want to make sure. Thank you.

[27:34] I guess with that, we'll adjourn the meeting.

[27:37] » Do you want to take a motion? >> Yes, can I uh have a motion from someone

[27:41] to adjourn? >> I move that we adjourn.

[27:44] » Second. >> I'll second.

[27:47] » Tyson? >> Yes.

[27:50] » Nicole? >> Yes.

[27:52] » Chris?

[27:56] Warren? >> Yes.

[27:58] » Has Chris left the meeting? >> First

[28:01] I I said yes. >> Oh.

[28:02] » I didn't hear >> And I'm also a yes.

[28:06] » All right. Thank you, everybody. >> Thank you.

[28:07] » Thank you, all. >> Thank you. Bye now.

Concord Municipal Light Board Meeting - September 3, 2026

Transcript