AYER — Town Counsel Mark Reich was invited to the Board of Selectmen’s meeting, said Chairman Pauline Conley, to speak about the attorney’s role with the town and to address the issue of the request of an individual member of the board for a legal opinion, which was then disseminated to the others.
Reich’s law firm, Kopelman and Paige, is the longtime town counsel for the town of Ayer, which it serves through the Ayer Board of Selectmen.
“We represent approximately 120 communities in the state, so it is not feasible to address the needs of individual residents,” said Reich.
The municipal law firm’s job is to advise and defend the town, prosecute actions on behalf of the town, enforce actions such as zoning violations, draft and review bylaws and documents such as the town warrant, and to generally be available to the town, Reich explained.
He said that Massachusetts Open Meeting Law (OML) now runs through the Attorney General’s Office, and that all complaints run through that office. He referred to a recent complaint brought by one of the board’s own members with regard to OML when the board went into executive session. He said that he had just received the AG’s Office’s decision, and that it supports the town’s decision that there was no OML violation.
“So, hats off to the then-chair (James Fay) and the Board of Selectmen for taking the appropriate action,” he said.
Do not return to sender
“Openness in town government is much more enforced now, and much more questioned,” stated Reich. “The AG’s Office has been very strict in applying the OML.”
Reich said OML has now caught up with the proliferation of electronic communication, and that the communication and distribution of emails now make town officials subject to the possibility of OML violations. Therefore, he told the selectmen, “treat all emails as public records.”
Reich said he advises the board not to use email, and especially not to use the “reply all” button.
“Send it to (Town Administrator) Robert (Pontbriand). Don’t get into a series of discussions about matters, or plan what you are going to say in a meeting.”
“Try very hard,” he cautioned, “to avoid using communication through email which can result in a back and forth that can be a violation.”
He said that more and more often, he is seeing records requests for emails, which can be and usually are deemed a public record.
“Your email is an official email, even if you are using a home email, if you are addressing an issue as a selectman.”
He added that since any communication as a selectman is an official communication, there is a requirement that those communications be maintained and archived.
Some emails dealing with an executive session may be shielded from discovery, he said, but his overall recommendation is “to avoid email amongst yourselves, and keep in mind that an email you send is subject to public disclosure.”
Public Records Law
Reich further explained that all written materials are deemed to be public records to be maintained by the town. A list of exemptions such as personal and personnel information, addresses and telephone numbers of public employees, or plans for municipal buildings as well as security devices, may be shielded for public safety purposes, but in general, he cautioned, “treat any records of the town as public records.”
“My motto is, I do not send an email if I don’t want to see my communication as a headline in the Boston Globe.”