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Good morning everyone. I would like to
call this September 3rd meeting of the

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conquered light board order.
I'm John Dalton

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chair of the light board.
We'll start with a roll call.

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Chris Schaffner
>> Here.

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» Lauren Leon
>> Here.

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» Nicole Brosner
>> Here.

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» Jason Kuczynski
>> Yeah.

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» Great. And John Dalton is also here as
chair.

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Our first order of business is to
discuss an open meeting law complaint

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which was filed
in

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August.

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Jason, will you be discussing that
initially or

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with town town council?
>> And so I'll just at this moment

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introduce Mina Makaryous who is town
council

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who we we've consulted with on this
matter and Mina can kind of give you an

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overview of the process for handling
such a complaint. Welcome Mina.

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» Mina, over to you.
>> Good morning everyone.

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As Jason mentioned, my name is Mina
Makaryous and town council. The process

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for
responding to an open meeting law

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complaint
is as follows and we can get into the

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substance of this particular one.
When a complaint is received, the board

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or committee that uh has
has a complaint filed against it uh

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needs to meet within 14 meet and respond
within 14 business days

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um, discuss the complaint, uh, address
if there's any remedial action it should

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take, um, really to make sure it
understands whether, you know, a mistake

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was made and then, um,
and then address it if needed. Um, the,

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uh, board can, at that meeting, uh,
delegate a response to, uh, to staff or

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to counsel or to to somebody else, um,
which is, as you'll see, what we're

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recommending in this case, um, and then
the written response has to go back to

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the complaining party and the, um, with
a copy to the Attorney General's Office.

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The Attorney General's Office does not,
immediately, typically, uh, review the

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complaint, uh, they wait to see if the,
um,

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response from the public body is, uh,
satisfactory to

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the, um,
the party that made the complaint. Um,

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if not, um, once a certain period of
time has passed, um, the the that party

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can then, um,
sort of file directly with the Attorney

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General to ask for them to review it.
Um, so, that and then from there, the

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Attorney General's Office, um, will
review and decide whether to issue

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to to sort of to, uh, provide any
further guidance, issue any, um,

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reprimand or requirement for training.
Um, in very rare cases, they may, um,

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suggest a, uh,
they they may require something more

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drastic, such as rescinding decisions
taken in in in, um,

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in during a meeting that wasn't where
that didn't comply with, um, the Open

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Meeting Law or penalties. That's usually
reserved for intentional violations and

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to be clear, an intentional violation
is typically a repeated violation where

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the AG has been clear on a topic
and there hasn't been uh, and there's

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not compliance. It is not the same as uh
being told by, you know, one one member

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of the public, we don't think this is
the right way to do it and and a good

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faith disagreement of the policy. So,
that's just just as a as as background.

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So, that's that's it on the process
before we get into the substance. Any

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questions there?

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» Questions by any board members?
>> No, seems pretty straightforward.

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» Um so, in in this case, um
when the complaint was filed, um

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Jason uh had reached out to us to
discuss the um

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the potential
uh you know, just sort of understand

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what where the answer
um

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what the answer might be in terms of the
appropriateness of the actions uh one

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way or another. Um and
to uh start thinking about what our

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response might look like.
Um

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we have, I believe in your packet, there
is a draft response, uh which kind of

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lays out those those things uh both sort
of what we think of the

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the merits of the claim and a proposed
response.

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Um I'm happy to walk through that in a
little bit of just to sort of cover

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that, but I don't know if folks have
questions or have had a chance to read

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it and want to discuss first.

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» Yeah, if people have board members had
an opportunity to read it, is there any

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questions they want to pose or
uh would it be beneficial to have

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» I I did read through it, but I think
it'd be beneficial to get a quick

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overview to make sure my understanding
aligns. It It sounds like basically

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we've said there are
several different reasons why we're uh

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you know several different responses
were giving it sounds like one is that

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just the
complaint was not timely and then

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additionally we were doing what we
normally do as a light board negotiating

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a PPA.
Those are basically the responses but

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I'd I'd love a little more insight and
detail.

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» Sure.
Yeah. Um

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So
the um

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the the way you'll see that our answer
proceeds so let let me start actually

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with the complaint itself. They um the
issues listed in Mr. McCown's complaint

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um
you know he he lists uh three.

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Um
but they they really revolve around one

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one key issue which is the
what he defines as the improper use of

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exemption um
10. Um

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exemption 10 excuse me. Sorry.
Early morning voice here.

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Um exemption 10 is a is intended to
protect um

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confidential
information um in

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in negotiations in involving
um energy procurement in particular. Um

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so you you all probably encounter it
more than than other boards and

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committees in town. It doesn't it is not
you know the it is a rare rarely

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encountered at the AG's office from the
OML complaints but um

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has come up a few times. Um the um the
second

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um and kind of related piece here is
that Mr. McCown is alleging that you

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know that when you went to executive
session

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um you were talking about the
um

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the the
the placement of solar panels on the

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middle school roof which is really a
real property discussion and should have

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been
governed by section six. Section six, as

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he correctly points out, does have a
requirement or exemptions, excuse me,

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does have a requirement that the chair
declare that an open meeting would have

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a detrimental effect on the negotiating
position of the town.

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And then he has a
sort of related

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allegation that you were doing this to
conceal a single source

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procurement.
As you'll see in our response, we we

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address each of these and and provide a
bit more guidance on them.

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One
as a

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as a
as a starting point, I think Mr.

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Schaffner started mentioned this point.
The complaint was filed more than 30

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days after your
meeting, which would normally make it

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untimely and not subject to review.
Mr. McCone hints at this in his in his

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documentation that he
couldn't have filed

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sooner because he didn't learn of what
you were discussing until

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you know, later when
I believe he

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refers to the the minutes having been
approved with the town clerk. The

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our view on that is that while there is
a rule

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under in in terms of open meeting law
cases about you know,

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complaints or excuse me, issues that
could not have been discovered timely if

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a board sort of met in secret and no one
knew about it until something happened

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until something was revealed later,
complainants wouldn't have any reason to

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know. In your case, that that didn't
happen.

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There were your meetings were where you
had this discussion, where you went into

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executive session and why you were going
into executive session was publicly

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posted. You had the meeting in in open
session.

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You announced the purpose of the open
session on July 8th as far as I

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understand and and I, you know, I guess
I would ask to make sure that the board

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agrees with these facts. I know we've
reviewed it with staff. Um,

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there was um,
there there was a conversation that

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there were two power supply contracts to
consider and that that's why you were

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going into executive session. So, you're
clear about why you were doing this.

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Um, and
um, all of that was public information

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at least as of the date of the meeting,
um, which is more than 30 days before

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the complaint. Um,
and you you stated which purpose you

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were going under, um, into executive
session.

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Um, so from our perspective that the
complaint is is not timely filed.

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Um,
and I guess all what I would like to do

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is just stop at every sort of section of
the letter and make sure that there's no

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disagreement with the facts as stated or
the

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uh, folks' recollection of of what
happened.

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» Any comments from the
board members?

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» Yeah, I would one clarifying question.
You know, I think one of the things that

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makes this unusual is that we were
having a meeting and then it had to be

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stopped because we were having issues
with with Zoom and then we rescheduled.

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So, how does that affect any of what
we're talking about here as far as the

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timeliness or or any other factors?
>> Sure. Um, so

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um,
the the

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the Zoom
the Zoom interrupted meeting was on July

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8th as I understand it.
Um, when you picked it back up, it was

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July 14th.
Uh, that's when you went back into

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executive session. That was also duly
noticed.

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Um, so couple of things. There there is
no requirement that um, you know, if if

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the once the Zoom was interrupted, you
you you did the right thing. You figured

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out that um,
you were losing sort of access to or the

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public was losing access to your
meetings. You you decided to reschedule

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from there.
Um, the when you went back to on July

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14th, you did essentially the same
thing, went back into that executive

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session. The complaint wasn't filed till
I believe August 19th, so still more

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than 30 days. So, for the purposes of
this

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of the timeliness issue, it doesn't
affect it.

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Um, it may have caused some initial
confusion about when you would go in,

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but I don't think there's any allegation
that you went into executive session

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on the 8th, which you could have done,
um,

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if if the Zoom was working for the board
but not for the public, um, but you you

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

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issue in this complaint. There are um,
pretty limited requirements of when the

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board has to stop a meeting just because
technology is not working.

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» All right.
Yeah.

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Um, I agree with your
description of the facts related to the

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timeliness of this, and
um,

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but
I would love for the response to be a

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little briefer on this point.
Only because even though

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you're right on the facts, the fact that
we go on to actually take up the

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complainant's complaint
means that

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we're not hinging ultimately our
response to the issue of the timeliness.

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So, it's somewhat of a secondary issue.
Um,

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I and it seems like it gets the most
attention in the um, response.

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» Um,
I I I appreciate feedback. Um, I think I

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cuz I I can tell you when we were
drafting it, you know, had the same

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

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why I would recommend keeping it um, in
this way. One is that um, I think simply

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just takes a little longer to get out
um,

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because there's a back and forth on sort
of what was said. You know, it's there's

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sort of more facts there as opposed to
explaining

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the legal positioning of it. Um, the
second is from the Attorney General's

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perspective, if they're asked to review
this later, um, it's been our experience

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that they
they care about making this

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determination first. Um, they have
limited resources to review all

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complaints and so if they are satisfied
that a complaint is untimely,

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um, they will normally stop there. So, I
want to make sure they had all the facts

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they needed in case this goes further to
them.

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» Okay, thank you.
>> Yeah.

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Um,
but but I but I I hear you and I think

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part of the you know, if folks are ready
to move on to the other part, we do

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typically when you you know, unless
something is flagrantly untimely, uh,

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

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to at least address the merits as well
just to make sure that there's sort of a

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good faith discussion of that. And I can
turn to that next. Um,

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the um, the upshot on the merits and
this actually kind of factors into the

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both um,
um, into

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both of the sort of
uh, points about section 10 and section

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six is I think there's some confusion
from from the complainant about what is

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actually being discussed in um, in
executive session and what it means for

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um the application of section 10. Um as
we point out um

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first the purpose 10
um

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is
you have the language there in the

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letter is um
involves competitively sensitive

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information. Um
provided in the course of activities

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conducted by a governmental body.
Um

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And and it involves um
entities licensed under chapter 1641F.

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Um in your case you have you were
receiving that information and it is and

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you were using it. Um that is
um a purpose um

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that that that meets a purpose of
section 10. Um because disclosing that

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information while discussing PPA pricing
uh would impair the ability to get the

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most competitive deal on the power
supply contract. Um we explain that you

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know that
reasoning is is is how um

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is how section 10 is typically applied.
Um it's um you have some some latitude.

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Um
in in what exactly needs to be discussed

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in executive session to sort of make
sure you have um the proper protection

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for for that information. Um and that
was sort of why you went in. I think

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that just to sort of state the point
about the real estate side of this. Um

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00:16:56,760 --> 00:17:05,680
there there's also an assumption here
that because you were talking about how

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00:17:00,960 --> 00:17:08,760
the PPA pricing might be related to um
or possibly could have been talking

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00:17:07,120 --> 00:17:12,439
about the PPA pricing relating to the
middle school project that you were

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talking about real estate discussions.
However, as is pointed out here you you

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you have um
you don't have a role in

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um the handling of municipal or school
real estate. Um so that that purpose

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would have been the appropriate purpose
if the school committee or the select

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00:17:29,520 --> 00:17:36,320
board was going into executive session
to discuss the rooftop, but in your case

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00:17:34,880 --> 00:17:40,280
you were talking about the pricing of
it, so that is not the proper purpose

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00:17:38,040 --> 00:17:43,840
for it. So we we've laid that out as
sort of what the explanation for for

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00:17:42,280 --> 00:17:48,120
those two things.
So any questions, thoughts there?

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00:17:48,800 --> 00:17:53,440
» No.
>> Questions by the board?

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00:17:54,840 --> 00:18:00,320
» No, I got it. Seems pretty
straightforward.

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00:17:57,560 --> 00:18:04,360
» Um and then the the last point um you
know, concealing single source

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00:18:01,640 --> 00:18:11,200
procurement um
the again, you know

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uh the first point is worth is one sort
of repeated from above. The board has no

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power to dispose of municipal property,
so that's not what you were doing. Um

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and you were not and you're not involved
in that.

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Um second, there are exemptions
applicable to um

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energy and energy-related procurements
and and so you weren't trying to conceal

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00:18:30,480 --> 00:18:39,600
anything. Um
and and I think the sort of larger point

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is that the um single source um
procurement is not um

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it whether whether or not the
procurement is ultimately in um done in

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00:18:47,520 --> 00:18:55,080
the appropriate way, which we think it
it it it we there's a pathway to do in

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the appropriate way, is not an open
meeting law issue. The the last point

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about the sort of intentionality here um
relies on a comment from Mr. Banfield uh

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urging you to essentially have the
meeting as quickly as possible. Um it's

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00:19:08,280 --> 00:19:15,240
I I think worth noting Mr. Banfield is a
select board member, he's not a member

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00:19:12,960 --> 00:19:19,160
of your board. He doesn't does not and
in fact did not dictate when you would

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00:19:16,800 --> 00:19:23,880
go back into executive session.
You decided that on your own.

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And even if he had frankly
his urging that you meet soon but within

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the proper notice
with the proper notice needed under the

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00:19:30,240 --> 00:19:36,320
open meeting law
doesn't make it an open meeting law

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violation or let alone an intentional
one. He wasn't by any means suggesting

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that you violate any law by saying do
exactly the thing you meant to do on the

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00:19:44,800 --> 00:19:49,520
8th before the zoom interruption but
please do it soon. Don't wait another

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month cuz we
we think you should consider this

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sooner. That's just something that any
community member could urge you to do.

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So from our perspective there's
certainly no

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intentionality in intentional violation.
We don't think there's any violation.

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00:20:04,280 --> 00:20:09,880
And certainly
no

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00:20:08,040 --> 00:20:12,200
sort of nefarious purpose from from that
statement.

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00:20:15,680 --> 00:20:22,040
» Any comments, questions from the board?
I mean I I think it's pretty apparent

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00:20:19,640 --> 00:20:26,920
right that that the 14th meeting
was a continuation of the July 8th

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00:20:24,560 --> 00:20:31,680
meeting which was you know appropriately
scheduled and one where I think there

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00:20:29,080 --> 00:20:34,840
were two items for the executive
session. You know both of which

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pertaining to power purchase agreements.
So

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I think that
helps to address that question.

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00:20:39,680 --> 00:20:44,680
Any any other comments from board
members or questions?

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00:20:48,080 --> 00:20:56,040
» So Nina at this point um
you know would you recommend that the

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00:20:53,480 --> 00:21:01,160
board move to
kind of you know name you as the person

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00:20:58,920 --> 00:21:05,720
responding on their behalf and then you
know approve the

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00:21:02,800 --> 00:21:10,320
kind of language in here or is there any
other step before that?

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00:21:08,440 --> 00:21:15,440
» Uh nope, if there is agreement that this
accurately reflects the facts of the the

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00:21:13,000 --> 00:21:19,360
meetings and the board's position,
um I believe Jason you have you have a

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00:21:17,360 --> 00:21:20,920
draft motion to that effect and and yes,
so you can you can go forward with that.

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00:21:20,640 --> 00:21:24,040
So.
>> Yeah, Chris, do you

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00:21:22,600 --> 00:21:28,200
» Yeah, so I just
everybody is comfortable with the memo

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00:21:26,280 --> 00:21:33,320
as drafted. I mean, it seems like we we
aren't based on the discussion we've

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00:21:30,440 --> 00:21:35,760
had, but just to confirm.
>> Yeah, I

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00:21:34,160 --> 00:21:39,080
I'm very comfortable with with it. I I
have a I guess

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00:21:37,080 --> 00:21:46,800
is it worth just explaining a tiny bit
more of the uh the program

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00:21:42,520 --> 00:21:51,840
that the state has set up that we are
looking at using potentially for for

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00:21:49,680 --> 00:21:55,280
that project uh
because I think that was one of the

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00:21:53,040 --> 00:21:59,960
concerns in the the idea that it was a
single source.

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00:21:56,960 --> 00:22:05,400
Uh but it's actually a you know, a a
public bidding process that the state

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00:22:01,720 --> 00:22:08,960
has set up for municipalities to and and
and folks like us to use.

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00:22:07,560 --> 00:22:12,240
Um I I don't know if there's any more
detail that someone could provide on

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00:22:11,080 --> 00:22:17,040
that. I think I think that would be
worth

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00:22:14,000 --> 00:22:17,040
us repeating here.

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00:22:17,200 --> 00:22:25,000
Or have I confused everyone more?
>> Uh Mr. Shaffner, I'm happy to sort of

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00:22:22,440 --> 00:22:30,280
point uh sort of explain it in a very at
a very high level um the the kind of

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00:22:27,880 --> 00:22:34,080
program and why you know, how how it
relates to section 10. I do think

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00:22:32,320 --> 00:22:37,080
because it's not the topic of your
agenda

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00:22:35,320 --> 00:22:41,160
today, you know, I don't want to get too
far and I don't think the board should

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00:22:38,240 --> 00:22:44,440
deliberate on its use. Um you know, it's
a state comply with the open meeting

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00:22:42,480 --> 00:22:51,760
law, but essentially the reason, you
know, we we think this

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00:22:47,080 --> 00:22:56,360
going into a discussion um of pricing um
for uh

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00:22:53,800 --> 00:23:03,040
that came from from as Select Energy, a
developer um who had who is the had

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00:23:00,600 --> 00:23:06,760
procured um
um

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00:23:04,240 --> 00:23:14,760
who's whose role and the pricing, um,
had been procured through, um, the power

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00:23:10,160 --> 00:23:18,040
options entity, um, is, um, fits under
section 10. And essentially, it's

301
00:23:16,040 --> 00:23:22,640
because power options itself is an
energy broker that is licensed by DPU

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00:23:20,840 --> 00:23:30,040
under the the statute that's referenced
in the letter and in the statute. Um,

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00:23:25,240 --> 00:23:33,880
and so, the the the way that, um, that
those procurements

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00:23:31,560 --> 00:23:37,400
work, there there is, as you mentioned,
there is a sort of public procurement on

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00:23:35,600 --> 00:23:41,760
the state level that happens where that
pricing comes in. It's not it's it's not

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00:23:40,280 --> 00:23:46,800
selecting a developer and taking
whatever price that they say. It is

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00:23:43,920 --> 00:23:50,640
relying on a uh in part on a on a public
procurement of energy prices. That's

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00:23:48,440 --> 00:23:54,920
actually intended to bring the leverage
of of of sort of a larger program,

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00:23:52,920 --> 00:23:58,600
multiple municipalities, etc. And and
the idea is that uh from the state is

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00:23:56,720 --> 00:24:03,000
that that leads to better
better pricing. Um, and that's what you

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00:24:00,920 --> 00:24:05,800
were exploring as an option
um in this situation.

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00:24:04,400 --> 00:24:10,280
» I think what Chris is trying to maybe
hint at is to make that clear within the

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00:24:07,560 --> 00:24:13,800
letter for the reader cuz
maybe the AG or whatever isn't as

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00:24:12,240 --> 00:24:18,800
familiar with that.
>> Yeah, I I mean I I think I I just I see

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00:24:16,440 --> 00:24:23,760
item three in the violation, concealment
of single source procurement. And to me,

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00:24:20,920 --> 00:24:28,920
that's a very serious concern.
Um, and it's not really an open meeting

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00:24:26,880 --> 00:24:34,240
complaint. It's a separate complaint.
And so, well, I I think it's okay that

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00:24:31,880 --> 00:24:37,800
we don't address that
in any more than we have in this

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00:24:36,320 --> 00:24:40,200
response. I
I think it's important for us to be

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00:24:39,160 --> 00:24:45,240
clear
to the people of Concord that we are not

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00:24:43,880 --> 00:24:49,400
in any way doing single source
procurement. We're following uh our

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00:24:47,680 --> 00:24:53,760
approved program
uh that went through that follows public

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00:24:51,480 --> 00:24:59,640
bidding rules.
>> Correct. Yeah. And and And I guess, um,

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00:24:56,840 --> 00:25:03,400
to the last point uh Mr. Paczynski's
point that yes, that is

325
00:25:02,240 --> 00:25:09,440
um
it while it's not an open meeting law

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00:25:06,160 --> 00:25:12,240
point, I you know, the the the board is
going through a process that follows

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00:25:10,800 --> 00:25:16,200
open
open procurement rules. I think that is

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00:25:13,840 --> 00:25:16,200
clear.

329
00:25:18,200 --> 00:25:25,760
» But to the points that Chris and Tyson
were making

330
00:25:22,720 --> 00:25:31,840
adding in two or three more sentences
explaining what power options

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00:25:29,160 --> 00:25:38,160
is identifying power options a little
more clearly might be useful if not for

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00:25:36,080 --> 00:25:42,360
the AG's office for the public in
Concord.

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00:25:39,640 --> 00:25:45,720
» Um we can certainly
do that

334
00:25:43,560 --> 00:25:49,680
add a a sentence or two. What I don't
want to do is try to litigate the

335
00:25:48,320 --> 00:25:53,200
appropriateness of a procurement through
an open meeting law complaint. I don't

336
00:25:51,080 --> 00:25:57,720
think that's fair to you or the public.
Yeah. So but I

337
00:25:55,200 --> 00:26:01,360
um but that is um we can certainly do
that.

338
00:25:58,640 --> 00:26:03,720
» I I think actually the last paragraph in
section

339
00:26:01,880 --> 00:26:05,760
» it's addressed pretty
>> Yeah.

340
00:26:04,480 --> 00:26:08,680
» Yeah, on page four.
>> my purpose of raising it here was more

341
00:26:07,200 --> 00:26:11,240
to call attention to it for the people
on the call.

342
00:26:12,720 --> 00:26:17,920
Okay, so with that I'm going to make a
motion if that's okay. That's an verbal

343
00:26:16,320 --> 00:26:21,920
action now and I move that the board
authorize town council to respond to the

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00:26:20,200 --> 00:26:25,320
open meeting law complaint dated August
18th, 2026 [clears throat]

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00:26:23,640 --> 00:26:30,680
in substantially the form of the draft
printed in this meeting's packet.

346
00:26:28,040 --> 00:26:30,680
» Second.

347
00:26:32,080 --> 00:26:36,000
» Nicole.
>> Yes.

348
00:26:34,960 --> 00:26:38,360
» Tyson.
>> Yes.

349
00:26:38,720 --> 00:26:41,840
» Chris.
>> Yes.

350
00:26:41,120 --> 00:26:46,200
» Lauren.
>> Yes.

351
00:26:43,160 --> 00:26:46,200
» And I'm also a yes.

352
00:26:46,240 --> 00:26:51,360
So
I guess with that

353
00:26:49,160 --> 00:26:54,760
we've addressed the one item
in our meeting.

354
00:26:53,760 --> 00:26:57,440
Anything else?
>> Uh

355
00:26:55,600 --> 00:27:02,280
um
No, I think that's it on this piece, but

356
00:26:59,880 --> 00:27:05,200
uh I'll turn it back to Mr. Balder if
there's anything

357
00:27:03,600 --> 00:27:09,440
» I have nothing else other than to ask
Mina, is it typical to take public

358
00:27:07,000 --> 00:27:12,400
comment for meetings like this? So, we
typically do that at our monthly

359
00:27:10,680 --> 00:27:14,240
meetings that we're having one next
month.

360
00:27:13,280 --> 00:27:14,920
» Uh
>> Sure.

361
00:27:14,898 --> 00:27:20,000
» [clears throat]
>> Looking looking at your agenda, I don't

362
00:27:17,480 --> 00:27:23,560
believe um
>> Well, we had not posted

363
00:27:21,400 --> 00:27:27,320
» not Yeah, there there is no requirement
uh or or necessarily an expectation that

364
00:27:26,120 --> 00:27:29,400
when there's an open meeting law that
you need to take public comment.

365
00:27:28,640 --> 00:27:32,920
» Okay.
I just want to make sure. Thank you.

366
00:27:34,840 --> 00:27:39,280
I guess with that, we'll adjourn the
meeting.

367
00:27:37,640 --> 00:27:41,880
» Do you want to take a motion?
>> Yes, can I uh have a motion from someone

368
00:27:41,520 --> 00:27:44,800
to adjourn?
>> I move that we adjourn.

369
00:27:44,360 --> 00:27:47,360
» Second.
>> I'll second.

370
00:27:47,520 --> 00:27:51,160
» Tyson?
>> Yes.

371
00:27:50,160 --> 00:27:55,000
» Nicole?
>> Yes.

372
00:27:52,560 --> 00:27:55,000
» Chris?

373
00:27:56,760 --> 00:28:00,000
Warren?
>> Yes.

374
00:27:58,880 --> 00:28:02,080
» Has Chris left the meeting?
>> First

375
00:28:01,120 --> 00:28:03,840
I I said yes.
>> Oh.

376
00:28:02,960 --> 00:28:07,480
» I didn't hear
>> And I'm also a yes.

377
00:28:06,040 --> 00:28:08,640
» All right. Thank you, everybody.
>> Thank you.

378
00:28:07,920 --> 00:28:11,120
» Thank you, all.
>> Thank you. Bye now.