The Attorney General’s office has found that the former Duxbury Town Counsel Search Committee clerk unintentionally violated the Open Meeting Law and has been ordered to comply with the law going forward.

The office of the attorney general received two complaints from Philip Tortorella  alleging the Duxbury Town Counsel Search Committee and Will Zachmann, committee clerk, violated the Open Meeting Law, General Laws Chapter 30A.

The complaints were originally filed with the attorney general’s office around Nov. 27, 2012 and Dec. 7, 2012. In the November letter, Tortorella alleged that during the Oct. 30, 2012 and Nov. 1, 2012 committee meetings, Zachmann recorded the meetings without first notifying the chair or other participants at the meeting. In the December complaint, Tortorella alleged Zachmann engaged in deliberation by email outside of a properly posted meeting.

In a letter dated Sept. 10, 2013 addressed to Attorney Arthur Kreiger, Duxbury’s Town Counsel, Hanne Rush, Assistant Attorney General said the attorney general’s office reviewed the complaints, as well as a Dec. 17, 2012 letter from Kreiger on behalf of the committee and a Dec. 18, 2012 complaint filed with the office.

Based on the information they gathered after reviewing the complaints, the attorney general’s office found that the committee did not violate the Open Meeting Law by failing to announce that its meetings were being recorded, because Zachmann had failed to notify the chair before each meeting. The office found that Zachmann “individually violated” the law by sending emails discussing public business within the committee’s jurisdiction to a quorum of the committee. A quorum is the minimum number of members of a committee that must be present at any of its meetings to make the meeting valid.

Rush detailed the facts the attorney general’s office had identified as facts. During the June 14, 2012 selectmen’s meeting, the selectmen voted to appoint seven individuals to the search committee. The committee members – William Zachmann, Martin Desmery, Kathy Muncey, Frank Mangione, Philip Tortorella, Susan Curtis and Andre Martecchini – were charged with interviewing law firms and making recommendations for candidates to the selectmen.

On June 22, 2012, Zachmann sent an email to the search committee with an attached memo, “offering some preliminary observations…for the coming deliberations and actions…put forth simply as some initial thoughts to help ‘get the ball rolling.’” Martecchini responded to the entire committee by email on June 23, saying the committee should not be discussing information outside of posted meetings. Zachmann responded on June 24, 2012, citing a previous determination from the attorney general’s office that said the law did not provide guidance on email communication.

At the first search committee meeting on June 27, 2012, Zachmann told then-chairman Desmery he intended to record every meeting in order to assist him in drafting meeting minutes. During the Oct. 30, 2012 and Nov. 1, 2012 meetings, Zachmann placed a recording device on the table and recorded the meetings but did not notify Desmery. As a result, Desmery failed to announce to committee members the meetings were being recorded.

Following the Nov. 1, 2012 meeting, Desmery and Zachmann debated via email how to resolve the recording issue. On Nov. 12, 2012, Desmery individually emailed the five law firms interviewed and told them the meetings had been recorded. Desmery disclosed the issue during the committee’s Nov. 13, 2012 meeting by reading a copy of the email he had sent to the law firms.

Zachmann sent a series of emails regarding the agenda item to “disclose the recording issue” and attached a PDF filed of the email correspondence between himself and Desmery. On Nov. 14, 2012, Zachmann sent an email to the entire committee, copying other town officials, with his response to the committee’s discussion about the recording issue.

In Rush’s decision letter to Kreiger, he said “meeting” is defined as “a deliberation by a public body with respect to any matter within the body’s jurisdiction,” “deliberation” defined as “an oral or written communication through any medium, including electronic mail, between or among a quorum of a public body on any public business within its jurisdiction…provided that no opinion of a member is expressed.”

Rush said after the initial disclosure that he was going to be recording the meetings.  Zachmann believed his obligation to notify the chair had been satisfied and did not advise Desmery about his intentions in subsequent meetings. Desmery forgot about the recording plan and did not announce it at meetings.

“While a chair should make reasonable efforts to determine whether anyone is recording a specific meeting, such as by asking at the start of the meeting whether anyone intends to do so, the chair is not required to announce recordings of which he is not aware,” Rush said in his decision letter.

Rush said Zachmann’s emails about the recordings did violate the law. The Nov. 11, 2012 email sent out a document for discussion at an upcoming meeting and included his opinion on the topic.

“Expression of an opinion on matters within a body’s jurisdiction to a quorum of a public body is a deliberation, even if no other public body member responds,” Rush wrote.

Zachmann responded to Rush in an email dated Sept. 17, saying, “there are additional facts that should have been considered.” Zachmann said the final meeting of the committee was Nov. 13, 2012, as noted in the Nov. 19 Board of Selectmen meeting minutes: “On behalf of the board, Mr. Flynn thanked all the members of the Town Counsel Search Committee for their word…and as the Committee’s task has been completed he disbanded the Town Counsel Search Committee.”

Zachmann said since the last meeting was held on Nov. 13, 2012, there was no business for deliberation.

“Therefore, any opinions expressed in emails subsequently could not possibly amount to the deliberations of matters before the committee,” he said. “I think it is very important to note that the effect of my recordings of the meetings of the DTCSC and my emails concerning this matter has consistently been, in reality, to make the meeting more open to the public and therefore wholly consistent with the stated intention of the Open Meeting Law.”

While the attorney general’s office found the committee did not violate the Open Meeting Law by failing to announce the meetings were being recorded, it did find that Zachmann individually violated the law by sending emails discussing public business within the committee’s jurisdiction to a quorum of the committee.

The attorney general’s office ordered “immediate and future compliance with the Open Meeting Law.” It also cautioned Zachmann that similar conduct in the future may be considered “evidence of intent to violate the law.”