Some recent scuttlebutt going around the city concerns a potential violation of the state's Public Records laws. It is alleged that public records pertaining to the executive sessions on the landfill settlements were destroyed, before the meeting minutes of said sessions were accepted by the city council.
Recent closed-session meeting notes taken by a clerk were destroyed and deleted from computer files before they reached the City Council in the form of minutes for approval, the Gazette has learned.
That action is an apparent violation of the state's Public Records Law, according to the office of the secretary of state.
The notes of executive sessions are public records until the minutes of an executive session are adopted by governmental bodies, according to the secretary of state's office.
"When the council accepts the minutes, then the notes can be destroyed, not before," said Brian McNiff, a spokesman for the state office.
Under the state's Open Meeting and Public Records laws, the records or minutes of government meetings become a public record from the moment they are created, regardless of form. Draft minutes of open meetings, for example, do not have to be approved before they are released to the public, even if they are written by hand.
In the case of the May 21 closed-session minutes, the council clerk's meeting notes, which produced draft minutes of limited content on the landfill property settlements, were apparently destroyed before the council had an opportunity to approve the release of those minutes.
City Solicitor Janet Sheppard has responded to the public discussion in this way according to an editorial published in the July 23 Gazette in part,
I asked the (council) clerk to remove this (two-sentence) paragraph only, in accordance with the agreement between parties involved in the settlement negotiations, an agreement which would be enforceable by law should either party break it in part or whole. In order to avoid further litigation against the City, I advised that allowing that small paragraph to be included in the minutes would have opened the City to further lawsuits, legal costs, and legal damage claims. I took this action to protect the taxpayers of the City, not to withhold information."
Since Sheppard works for Northampton Mayor Mary Clare Higgins and not for the council proper, what chain of events led up to her advising the council's clerk? Moreover according to Crowley's report, city Council Clerk Mary Midura has been instructed to refer all questions concerning the executive session minutes to the city's solicitor. The report does not mention who directed Midura.
Why is it a person in-the-know is now prohibited from speaking the truth regarding what she was instructed to do, when and by whom with regards to public records? This has nothing to do with disclosing the content of the records or minutes. Rather Midura's testimony would shed light on the process that was used by the city and whether or not it was proper. It appears the directions to Midura serve to protect city officials who may have acted improperly and not the city's taxpayers, who might just want to know the truth.
Attorney Sheppard has her defenders however. In chastising Councilor Bardsley who raised concerns about the deleted records, a July 24 letter to the Gazette from Dr. Evan Benjamin asserts in part,
The city solicitor was doing her job in attempting to protect the city, but it is the council itself that must take responsibility for and approve the minutes.
Yet according to a Bardsley editorial published in the Gazette on July 16 it was Council President James Dostal who appears to have acted in transferring the council's authority regarding the council's public records in question to Sheppard, not Bardsley or other members of the council,
When I asked Ms. Midura if she still had those draft minutes, she stated that the city solicitor had not only confiscated her draft minutes, but had instructed her to shred all her notes of those executive sessions and to delete the draft copy of those minutes from her computer.
I then questioned why Ms. Midura would follow the directives of the city solicitor when her direct supervisor was the City Council President, James Dostal. She explained that Mr. Dostal had instructed her to do whatever the city solicitor wanted her to do.
Thus it appears that Dostal must have consulted with Higgins in order to gain access to Sheppard. Though the point is now moot, if Benjamin's arguable assertion is accurate, the solicitor, who works for the city at the sole discretion of Higgins, should not be advising the council or its clerk. Rather, the council should have its own legal budget permitting its members to seek the advice of an attorney not answerable to the mayor's office.
According to the Massachusetts City Solicitors and Town Counsel Association, of which Sheppard is a member, its number one guiding principle is:
Members will conduct themselves in a manner that avoids the appearance that legal advice is based solely upon political alignment or partisanship, because such advice undermines public trust. When asked for advice, members will give candid and balanced legal advice based upon principles of law. In rendering advice, members may refer not only to the law but to other considerations, such as moral, economic, social and political factors that may be relevant to the client's situation. However, members should not be deterred from giving candid advice by the prospect that the advice may be unpalatable to the client.
MCSTCA's mission is to,
Promote better local government through the advancement of municipal law.
Reasonable people can disagree on the merits of policy proposals in a city, but if a city's solicitor acts to favor one side of an argument over another by putting forth dubious legal opinions then a city's residents will not be well served. As Sheppard forcefully asserted to me on the telephone in 2006 during the Smith College Education Overlay District discussion, she works for the mayor and not, "us." That perception is indeed a problem.
