BERLIN – A state board found no issues with closed session meetings held by Berlin officials regarding Heron Park but believes the town’s salary study should have been discussed in open session.
The Open Meetings Compliance Board (OMCB) issued an opinion Friday identifying no violations with three meetings held to discuss the potential sale of Heron Park. The board did, however, state the town council violated the Open Meetings Act on March 27, 2023, when it excluded the public from discussion of a pay study that didn’t address individual employees.
“We find no violation with respect to the closed sessions on March 21, 2022, July 25, 2022, and March 23, 2023, as the Council’s discussions fell within the procurement exception of § 3-305(b)(14),” the opinion reads. “But the Council violated the Act on March 27, 2023, by excluding the public from a discussion about a personnel study that did not touch on the personal attributes of any individual employee and, thus, fell beyond the scope of the personnel matters exception of § 3 305(b)(1).”
Resident Jason Walter submitted the complaint to the OMCB because he has been frustrated with the council’s meetings related to Heron Park for some time. He said there was no reason a subcommittee—made up of the mayor and two council members—should have met privately and that the procurement exception should not have been used to close council meetings related to the park because those meetings were closed after negotiations had already been entered with Gillis. He was also concerned that the lengthy negotiations will result in the town losing the ability to use the $500,000 demolition grant it received for Heron Park
According to the OMCB, the March 21, 2022, meeting, which was closed based on the procurement exception, was held appropriately. The board said that during the meeting the council met first with one developer interested in Heron Park and then another.
“As we have repeatedly recognized, the procurement exception permits a public body to “close a meeting to hear competing offerors’ presentations of their proposals, because that information, if made public, would give an advantage to the offerors who have not yet presented their proposals and would thereby compromise the process,’” the opinion reads.
The other two closed meetings held about Heron Park were more complicated because the procurement process was ongoing and the town had entered an extended negotiating process with Palmer Gillis, one of the developers who’d presented proposals for the park.
“Here, because a contract had not been awarded, and because there was still the possibility that the Council could enter negotiations with a different developer, we think the Council had discretion to invoke the procurement exception on July 25, 2022, and March 23, 2023,” the opinion reads.
As far as the subcommittee that has met with Gillis regarding Heron Park, the OMCB states that the Public Information Act applies only to meetings of “public bodies.” A public body is a group created by rule resolution or bylaw, a group appointed by the governor or the chief executive authority and includes at least two members of the public, or if the body is appointed by a gubernatorially appointed public body and includes two members of the public.
“The subcommittee at issue here satisfies none of these tests…,” the OMCB opinion reads. “Neither of the other tests apply, as the members of the subcommittee were not appointed by the Governor, the chief executive authority of the Town, a public body in the Executive Branch, or anyone subject to the policy direction of the Governor, the Town’s chief executive authority, or an Executive Branch public body.”
The board found a violation did occur on March 27, when the council conceded that it had improperly closed the meeting to discuss personnel.
“We have previously explained that this exception applies only to discussions about ‘personnel matters concerning identifiable individuals,’ 6 OMCB Opinions 180, 184 (2009), and ‘does not extend to discussions about broadly applicable personnel policies,’ … or to conversations ‘with respect to a broad category or class of personnel, where there is no discussion of the particular individuals who hold positions within the class,’” the opinion reads.
The board wrote that the council conceded that because the study was about all town employees it fell beyond the scope of personnel matters.
While the board has now ruled on Walter’s complaint, resident Ed Hammond has also reached out to the board with concerns about Heron Park meetings. He believes the town used the RFP process to evade the Open Meetings Act. He has supplemented his initial complaint to advise the board that Gillis reached out to him directly. He’s also objected to the fact that the public will only just have the chance to weigh in on the Gillis proposal for Heron Park Monday night.
“The Town appears to think that a proper approach to open government is to solicit public comment on Monday night at the very same meeting, perhaps within moments, of the actual deal finally be made available to the public,” Hammond wrote to the board. “The governmental body that adopts such a process is obviously not serious about open government. It asks the public to offer comment on a complex deal that took two years to negotiate with only moments to see the details?”