Solicitor fights DA judgement
Published on August 24th, 2005
Town Counsel Bill Solomon insists that the Middlesex District Attorney's office erred in its judgement that the Board of Selectmen violated the open-meeting law during the Town Administrator selection process last summer.
Acknowledging Middlesex Assistant District Attorney Sheryl Grant's five-page admonishment of the Selectmen for it's decision to conduct the interviews of eight candidates for the Town Administrator vacancy in executive session last June, Selectmen Chair Bob Sweeney declined this Tuesday to read the letter out loud to the public.
"We did receive some correspondence from the District Attorney's office, and I do have a disclosure to make. The DA has requested that the letter be read aloud and be attached to the minutes of this meeting," said Sweeney.
"Because the letter is five pages long, I have made copies available to the public," the Chairman added, insinuating that the board considered the correspondence was too lengthy to read aloud as requested by Grant.
According to the D.A.'s letter, Solomon's argument that the privacy rights of the candidates outweighed the public's right to know wasn't supported by case law. Specifically, Grant concluded that since the 10 candidates have been chosen out of a field of 80 different resumes, the Town Administrator selection process had reached a "semi-finalist" stage.
"Although Town Counsel describes the interviews as part of the initial screening process, it is plain that these candidates, who had survived after more than eighty percent of the applicants had been eliminated, were indeed semi-finalists," Grant wrote.
"...Once the semi-finalist stage is reached, public discussion of the semi-finalists would not be a violation, because any interference with their privacy interests is reasonable," the Assistant District Attorney added.
Defending his legal advice to the Selectmen last June, which opined that the interviews of eight candidates for the vacant position could be conducted behind closed doors, Solomon strongly disputes Grant's suggestion that the selection process had reached a semi-finalist stage.
Specifically, since neither a Town Administrator Screening Committee nor the Selectmen had been allowed to interview a single candidate, the Town Counsel reasoned that the process had in fact just begun.
"Do you believe that 10 people never interviewed could ever be called semi-finalists? We only just begun. Nobody had ever met. And after those initial interviews, everything would have been open," Solomon said.
The Town Counsel further disagreed with Grant's assertion that the public's right to know outweighed the candidates' privacy rights, as new technologies such as the Internet have seriously threatened people's ability to hide from their employers that they're seeking work elsewhere.
During his deliberations over whether the Selectmen could enter into executive session, Solomon consulting two different provisions of the open-meeting law that allow for boards to interview candidates behind closed doors.
For the first exemption, the Town Counsel considered whether or not the Selectmen could be considered a selection or screening committee.
However, according to a written explanation sent to the D.A.'s office, Solomon eventually ruled out that possibility, as the town had already established a screening committee - although they were not allowed to conduct preliminary interviews.
And while the Town Counsel considered whether the fact that the screening committee had not been allowed to meet with the candidates in turn allowed the Selectmen to do so privately, he ultimately ruled that possibility out.
Specifically, Solomon believed that the Selectmen were acting as a free standing government body, not a screening committee, and as such couldn't be exempt from conducting the interviews in open-session.
"I expressed my opinion that give the language of exemption 8, it was much more likely that a standing government body, such as the Board of Selectmen, would likely not be deemed a "preliminary screening committee..." the Town Counsel wrote.
However, Solomon did feel that a second executive session requirement did apply, one that allows such interviews to be conducted in private if doing so in open session would interfere with an individual's privacy rights.
Specifically, the Town Counsel argued that in the age of the Internet, the candidates' job security with their current employers could be threatened - as a search engine entry could allow an employer to pull news articles revealing that the candidate was seeking other work.
"Think back five to ten years ago. Let's say you had ten applicants and you held an open meeting. Would you as a newspaper call up 10 employers for ten different applicants for information?" Solomon reasoned in a recent interview.
"What has changed in the balance is in the modern world, is people's ability to know is much greater. Now everybody can learn what people are doing. So back then [years ago] an executive session might have been unreasonable. But it's a very different world with the Internet," the Town Counsel added.
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