SELECTMEN NEWS: Town Counsel To Determine If McCoy Violated Open Meeting Law After Phone Calls To Board Members

WILMINGTON, MA — The Wilmington Board of Selectmen held a special meeting on Wednesday night to interview the finalists for the town’s Finance Director/Town Accountant position. After the interviews were completed, the meeting took an unexpected turn.

“I want to apologize for the other night on how the vote went relative to the hockey rink committee. I apologize to everyone up here, especially Selectman Eaton and Selectwoman O’Mahony,” said Selectman Mike McCoy, during the “New Business” portion of the meeting.  “I’d really appreciate a second chance. I would like to make a motion to submit my name – again – as the second member of the Board of Selectmen to serve on the Hockey Rink Committee, along with Mr. Caira. I know I can work hand-in-hand with Mr. Caira. I truly truly want to do this. I’ve been expressing it for months. And I apologize for what I said the other night.”

McCoy was referring to Monday night’s Selectmen’s Meeting, where he rescinded his deciding vote which would have allowed two Selectmen to serve on the town’s newly formed Ice Rink Committee. McCoy then failed to get appointed to the Committee. Selectmen opted, instead, to appoint Selectman Kevin Caira as the board’s representative. McCoy then criticized his colleagues for not selecting him, singling out Selectmen Greg Bendel and Jonathan Eaton.

New Selectman Chair Greg Bendel did not want to entertain McCoy’s motion on Wednesday night for fear it would violate the Open Meeting Law.

“I want to be cautious that we don’t take up any formal votes under ‘New Business,” explained Bendel. “I don’t want to put us in a situation where we’re in violation of the Open Meeting Law given that this motion has not been posted on the agenda. What I can offer you is that I will consider putting it on a future meeting as an agenda item, so we keep ourselves clean here tonight.”

“I don’t think we’d be violating anything,” responded McCoy. “I don’t think by doing this we’d violate any Open Meeting Law. We’ve done it in the past. I would appreciate it if you’d allow me to put that motion together now. I don’t think it’s a violation.”

“I’d have to go back and really look into the Open Meeting Law implications, if any, but could we put [McCoy’s motion] on the agenda for Tuesday’s meeting?,” suggested Selectman Jonathan Eaton. 

(Selectmen will be meeting on Tuesday, May 21 at 7pm to make their selection in the Finance Director/Town Accountant search.)

“I have no problem with the motion, it’s just the timing of it,” reiterated Bendel. “We’re here with a posted agenda. Residents had the opportunity to come see this. This is what we’re prepared to meet upon. And now this is something we weren’t prepared for. I have no problem with it being considered for a future agenda item, if you’d be willing to hold off. Regardless of Open Meeting Law or not, residents didn’t know we were going to take a vote on that, and that’s my hesitation…. In an effort to be totally transparent for the residents, I’m hesitant to vote on anything not posted on the agenda.”

“Mr. Chair, I would echo your sentiments and I know there have been incidents in the past where new business has been considered in a broader perspective than it should be,” agreed Town Manager Jeff Hull. “We had the recent Open Meeting Law discussion with Attorney Rich. I think even though some practices have gone in the past, that doesn’t mean they were the best practices…. I would just caution the board about taking up matters for discussion, and especially votes, that have not be posted on the agenda.”

McCoy then offered to withdraw his motion if Bendel agreed to post it on the agenda for the next meeting, which Bendel did eventually say he would do.

“I respect your position that new business is not where motions should be made,” agreed Selectwoman Jomarie O’Mahony. “I talked to Mr. McCoy about this. I understand he really wants to be on [the Rink Committee], which makes it baffling to me what happened on Monday. I’m only on this board – guaranteed for a year – so I want to start doing some work. I’m more than happy to have this on an agenda, but I want it to hopefully be the final time we’re having the discussion before the committee even meets, respectfully.”

Something O’Mahony said caught the attention of Selectman Kevin Caira.

“I think the Committee has been formulated and finalized. I don’t think we need to go any further with it,” said Caira. “But just for curiosity sake, Mrs. O’Mahony mentioned that Mr. McCoy talked to you about this issue. Did Mr. McCoy speak to anyone else about this issue?”

Selectman Eaton responded that he had also spoken with Selectman McCoy.

“So, this is a violation of an open meeting law,” said Caira. “That ends the issue right then and there as far as I’m concerned.”

Eaton represptectfully disagreed that McCoy’s actions were a violation of the Open Meeting Law, noting that three members (a quorum of the board) were not present during the one-on-one phone calls.

According to the Attorney General’s Open Meeting Law Guide, however, an Open Meeting Law violation can still occur in this type of situation:

“To be a deliberation, the communication must involve a quorum of the public body. A quorum is usually a simple majority of the members of a public body. Thus, a communication among less than a quorum of the members of a public body will not be a deliberation, unless there are multiple communications among the members of the public body that together constitute communication among a quorum of members. Courts have held that the Open Meeting Law applies when members of a public body communicate in a serial manner in order to evade the application of the law.”

“I may be mistaken, but I would suggest that Town Manager reach out to Town Counsel to determine if Mr. McCoy violated the Open Meeting Law by discussing this issue in regards to a vote with two other Selectmen,” requested Caira.

While no formal vote was taken, Selectmen – including O’Mahony and Eaton – did supporting instructing the Town Manager to speak with Town Counsel and ask for an opinion.

“We’ll just make sure that we’re in the clear,” Selectman Chair Bendel told Hull.

O’Mahony and Eaton explained their phone calls with McCoy.

“Mr. McCoy called me [on Tuesday] to reach out and apologize as it was my first meeting as a member of the board,” said O’Mahony. “I respect that phone call. Any conversation I have with any of you I’m happy to share. I don’t have off the record conversations making any sort of side agreements.”

“I did point out to him that I was baffled because he referenced [his desire to serve on the Ice Rink Committee] before I was even on the board. He referenced it at again the Special Olympics. So I knew it was something he really wanted and I couldn’t understand why he rescinded the option on Monday night,” continued O’Mahony.  “He asked for my support. I said I’m here for collaboration. I’m not here for division. That was the extent of the conversation. I don’t know what his conversation was with Mr. Eaton. I wasn’t privy to that. That’s the conversation that happened yesterday. Again, I respect there are rules we should be following. I respect the process. I respect the Chairman’s decisions. But I also respect that I was voted by the community to be on this board to make good things happen, and I don’t want to spend a lot of time on things like this.”

“Mr. McCoy did reach out to me yesterday,” said Eaton. “He did apologize for how the conversation went. On Monday, he accused me of ‘razzle dazzle,’ which is the first and I’m sure last time anyone will every accuse me of ‘razzle dazzle.’ I found it to be an apology. It was a brief conversation as I just got off the train.”

“I spoke to it on Monday. I don’t really want to have arguments over who is going to be on committees,” continued Eaton. “I think we were all elected to serve the residents. If there’s multiple people passionate about an issue, that’s great. That’s a good thing. Let’s go to work.”

McCoy then turned to Selectman Caira, seated next to him, and initiated a handshake with Mr. Caira while making a pitch to be placed on the Ice Rink Committee.

“I just wanted to call [Selectman Eaton and Selectwoman O’Mahony] to apologize,” said McCoy. “All I want to do is try to help our kids in this community. I want to do everything in my power to make this happen. That’s all I’m trying to do… It’s a shame how we got treated by Mr. Ristuccia working out a deal with Mr. Rotundo…. Mr. Caira, I want to work with you for the best of the community.”

“For someone who has been on the board 30 years, I made a rookie mistake on Monday night [in rescinding the vote]. Unfortunately, we’re human,” added McCoy.

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