[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.