For Northampton Mayor Clare Higgins, recent controversy surrounding the shredding of a clerk's notes from a closed-session meeting may ultimately come down to a simple misunderstanding between former City Solicitor Janet Sheppard and the City Council's clerk, Mary Midura.
For Michael Bardsley, who is running against Higgins this fall, the mayor's theory about a misunderstanding between Midura and Sheppard doesn't match the documentary evidence. He says Sheppard told Midura to purge the record in a deliberate effort to withhold from the public information about the settlement of a lawsuit against the city's landfill.
Bardsley also says that he doubts Sheppard, on her own, would have ever directed the clerk to purge public records.
The controversy, which led to Sheppard's resignation in late July, unfolded across the pages of the Daily Hampshire Gazette over the course of the summer, apparently beginning when Bardsley publicly questioned what he viewed as a lack of detailed information in the minutes of a May 21 executive session of the City Council.
At that session, the Council, including Bardsley, ultimately voted to approve a $1.2 million settlement of a suit brought against the city by a number of homeowners living near Northampton's regional landfill. During the closed meeting, Sheppard and Thomas Mackie, outside legal counsel for the city on the landfill case, briefed the Council on the city's settlement strategy, advising councilors that the city would likely win if it chose to go to court, but that the cost of litigation would probably be high. The lawyers presented a settlement that comprised several facets, including the purchase of two private homes abutting the landfill and the sharing of the cost of the settlement between the city and other parties, including Ameresco Northampton, LLC, the company that owns and runs a landfill-gas-to-energy facility at the landfill.
Bardsley first raised concerns about the lack of information in the minutes of that executive session during a June 18 Council meeting, at which the Council ultimately approved and released the minutes in question. A Northampton Community Television video of that meeting shows Bardsley's exchange with the mayor:
Bardsley: On the [executive session] minutes, they don't list a lot of information. It's just very straightforward about who was there and the issue [discussed]. Is that typical…
Higgins: Yes.
Bardsley: …of the minutes in executive session not to reflect the nature of the discussion?
Higgins: The law requires that we put a general description, and if there's any vote taken, what the vote was. If you look at the school committee minutes, you'll see that they are identical to that.
Bardsley ultimately voted to approve the minutes as presented.
In July, the story developed as Gazette reporter Dan Crowley, in the course of reporting about the terms of the landfill settlement and the rationale for the city's agreeing to it, began to shine light on the lack of detailed information in executive session minutes kept by the city. [Disclosure: The Gazette is owned by the same company as this newspaper. At no point have the two publications coordinated coverage of news stories.]
"A Gazette review of the council's executive session minutes dating back five years finds that while the council appears to be following the state's Open Meeting Law, its minutes of closed session deliberations are skeletal at best," Crowley reported July 7. Bardsley is quoted in the piece reiterating his concern about the minutes on the landfill settlement, which provoked a heated July 11 letter to the editor from Valle Dwight, a Higgins supporter and wife of the mayor's Ward Five captain Phil O'Donoghue, calling Bardsley "disingenuous at best" for questioning meeting minutes he had voted to approve. (Contacted Sept. 14, Dwight stressed that she wrote her letter "as a former reporter, not as the wife of anybody." She said O'Donoghue wasn't a ward captain at the time of her letter. "If [the settlement meeting] minutes were different from all the other minutes, then I think it's fair to bring it up, but I still don't think [Bardsley] should have approved them," Dwight said.)
In an op-ed response to Dwight's letter published on July 16 after being received by the Gazette on July 13 and prompting a July 14 story by Crowley, Bardsley revealed the substance of a phone conversation he'd had with Midura in which the clerk said that Sheppard had instructed her to shred any paper notes and delete any electronic notes from the settlement meeting. In Crowley's July 14 story, Sheppard "declined to say whether she instructed Midura to destroy her meeting notes…. She would neither confirm nor deny whether she did so, or when."
Shortly after writing her side of the story in a July 23 column in the Gazette, denying that she instructed Midura to destroy notes and saying that she had asked the clerk "to remove a two-sentence paragraph describing settlement negotiations… and this paragraph only," Sheppard resigned. In a letter dated July 31, the city attorney said that the discussion of her "legal advice to Mayor Claire Higgins and other department heads" was, in her opinion, "a distraction from the real issues that should be discussed in a mayoral campaign."
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In an Aug. 20 interview with the Valley Advocate, Higgins initially declined to discuss Sheppard's resignation.
"I think Janet said in her letter why she resigned and I'm not going to elaborate on that," Higgins said. "My interest is getting us on track in terms of getting clarity out there about that executive session settlement discussion, which is what we're going to do on Sept. 2," the mayor added, referring to a public session held Sept. 3 to effectively reprise the May 21 settlement meeting.
"My interest here is not looking backwards. What I think is important for the city to do is to look forward," Higgins continued. "There are three things that go into looking forward."
The first was to appoint Elaine Reall as the new city solicitor, Higgins said. "She only serves until the end of December. Whoever the new mayor is then has the right to appoint a new solicitor."
The second, Higgins said, "is getting clarity around the minutes. I think the way the minutes was handled [sic] was incorrect."
Asked if she was referring specifically to the landfill settlement minutes, Higgins said, "I think generally we need to do a better job. I think it's shed a light on a practice that has been true for a long time: our minutes have never been particularly wordy and we haven't been diligent about releasing them. So I've asked—I and the City Council president, Jim Dostal—have asked the city solicitor, Elaine Reall, to work with the Council and Council clerk to create policies and procedures around executive session, which I think we've needed forever. I was on the [City] Council before I was mayor and there wasn't any clear standard. … I think our minutes didn't have enough detail but I also think the law does not require verbatim minutes, so where is the place that's in the middle between those two points that we should be at? That's what we need to figure out."
The third thing Higgins said needed to be done moving forward was "getting clarity to the public about what was discussed [at] the settlement meeting." To accomplish that, Higgins said, she'd "invited" Mackie back into "open session [to] brief the Council again." Higgins reiterated that the administration hadn't handled the minutes properly. "We didn't do it the right way, there's not a perfect remedy, but it seems to me that this gets the lawyer out in front of the public and the Council giving that information about what the ingredients of the settlement are and what the strategic thinking was in terms of settling it the way we did."
The mayor also noted that city councilors have been free to speak about what happened at the May settlement meeting since the Council released the minutes of the meeting in June. She reiterated that any councilor "could have amended the minutes when they were brought before them for acceptance."
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Later in the Aug. 20 interview, the Advocate pressed Higgins on the subject of Sheppard's alleged instructions to Midura to destroy her notes from the settlement meeting, specifically seeking the mayor's reaction to Sheppard's refusal to confirm or deny the allegation when first asked about it by the Gazette's Dan Crowley for his July 14 report.
"I think there is a misunderstanding there and I'm not going comment any further," the mayor said.
A misunderstanding by the newspaper?
"No, on what Mary and Janet understood that each other said. I said that in the [Gazette] yesterday. [On Aug. 19, the Gazette reported, "Higgins said she believes there was a misunderstanding or miscommunication between Sheppard and Midura regarding the council's minutes—and places no blame on either."] Again, I'm not looking back. That's what I believe, but I almost think it's irrelevant now. It's only relevant in that we have to fix the process. What we know is, you have to have the handwritten notes retained until the Council actually approves the minutes, and then the handwritten notes can be destroyed. I think that's one of the steps missed and we have to fix it."
The Advocate pressed, noting that Sheppard denied telling Midura to destroy her notes; soon after, she resigned—a highly visible member of the administration exiting in a cloud of controversy just a few months before a mayoral election. Even in the face of an email exchange between Midura and Sheppard about the shredding of the clerk's notes, an email obtained by the Gazette through a public records request, the former city solicitor continued to deny any wrongdoing. (Contacted on Sept. 14, Sheppard said she had "nothing further to add to what I've already said.")
"I can't speak to Janet's motives," Higgins said. "You know what, there's lots that I don't control and that'll be part of the public discussion as we move forward. What I want the public to know is that when I see something that we've done wrong, I'm going to try to fix it. And that's what I'm trying to do. And that we're going to move forward, we're going to fix the way we deal with records—which I think we now know we need to change how we deal with executive session minutes—and we're going to create a policy for that and try to use it across the board in the city.
"Quite frankly, I think there's a lot of other things that could be reported on," the mayor continued. "There's lots of factual stuff, for instance, about the landfill that still hasn't really seen the light of day. I think that's an important story to report and I hope that people focus on that. You know, the school department is now going to be looking again at how to do strategic planning for the year. I think that's an important story. There are lots of important stories that could be reported on.
"I also think if you go backwards and look at why this became an issue, yes, the Gazette did some reporting. And then Councilor Bardsley wrote an op-ed piece about it, so it's more than the Gazette doing some reporting during a political season.
"And quite frankly, Janet in her letter said she didn't want to politicize this and she stepped out. OK. That's that."
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Despite Higgins' intention to move forward, the summer's controversies may have lasting implications in the context of her re-election campaign, particularly against the man who Higgins seems sure had a big hand in inflaming the controversy. The mishandling of public records related to the settlement of a lawsuit that sought to shut down Northampton's landfill may also color the ongoing debate over the Higgins administration's effort to expand the landfill, a possible hot-button issue in the fall election.
In an interview with the Advocate, Bardsley faulted Higgins for first vigorously defending what she now acknowledges was improper and, once she conceded that the executive session records were handled improperly, for trying to paint the specific handling of the settlement minutes as part of a broader, more diffuse failure of process—a failure that reflects poorly on the city in general over a long period of time rather than on Higgins, City Council President Jim Dostal (who supervises Mary Midura) and former city solicitor Sheppard for their actions in a specific case. (Bardsley has said that when he asked Midura why she followed the directives of the city solicitor to purge the records, Midura "explained that Mr. Dostal had instructed her to do whatever the city solicitor wanted her to do."
Contacted by the Advocate, Dostal said, "I wouldn't deny that. The city solicitor is the person who lays out the rules and regulations for executive session.")
Bardsley told the Advocate that he believes Higgins is attempting "to camouflage" the specific problems with the landfill settlement minutes amid other possible shortcomings in the city's execution of public records laws, none of which are as "troubling" as the destruction of a clerk's notes at the direction of the city solicitor.
"I see a world of difference between the minutes in the case of the landfill settlement and any previous issues the mayor is referring to with minutes," Bardsley said. "Sure, there are things we can improve. We can be more diligent in releasing records in a timely way. But in the case of the landfill settlement minutes, this was a case where pressure was exerted on a clerk to alter the public record. It was a deliberate effort to withhold information from the public.
"I don't think [the mishandling of the settlement minutes] was due to a lack of knowledge of procedure," Bardsley continued. "I don't think it was a little thing. Again, it was a deliberate effort to withhold information from the public."
Bardsley said that in the eight years he served as president of the City Council—Bardsley preceded Dostal in the post—he spent a great deal of time working with city clerks who were well versed in public records law. "The city clerks have worked very hard to maintain accurate records. The staff in the city clerk's office is very knowledgeable," he said.
Bardsley said he believes that Mary Midura had initially handled the minutes properly, steering off course only under the direction of Janet Sheppard and Jim Dostal. Any implication by Higgins that the problem was cause by a misunderstanding on Midura's part, Bardsley said, is unfair.
"What didn't Mary know? What policies and procedures didn't she understand?" Bardsley said. "She didn't know what to do when the city solicitor told her to delete material from a public record and shred documents. Mary had been told by her boss, the Council president [Jim Dostal], to follow the directions of the city solicitor. If Mary did anything wrong, it was listening to her boss."
In an interview, Dostal said, "Michael [Bardsley] chose to criticize the handling of the minutes purely as a political ploy," knowing that the need for confidentiality on the settlement would hamper the city solicitor and the mayor from defending themselves.
Bardsley also said he was surprised to hear Midura say that the instructions to alter the public record came from Sheppard. "I don't believe Janet Sheppard, on her own, would have directed the clerk to shred and delete what she had to have known were public records," Bardsley said.
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When Bardsley first began asking questions about the settlement minutes in mid-June, he said, the mayor forcefully dismissed the idea that anything was improper. She remained firm in that position until August, when the city solicitor resigned and the Gazette went after city emails, including an exchange between Midura and Sheppard about the clerk shredding notes. The available record seems to bear him out.
From Bardsley's first inquiry of the mayor at the June 18 Council meeting, when he apparently accepted Higgins' assurance that the sparse minutes complied with the law and were "identical" in form to "school committee minutes," until Crowley's explosive July 14 report on the shredding of documents, in which the mayor is quoted saying "Some of what [Midura] had in there was more extensive than what is required under state law and the city solicitor had her take some (material) out," Higgins didn't waver in her assurance that the city had acted properly. The July 14 Gazette story quoted Higgins saying that even if Midura had destroyed her meeting notes under the city's direction, "that's not a violation of anything."
The July 14 story also quoted Higgins as saying, "If we're wrong, we'll fix it." The story reported that the mayor was considering asking the state Attorney General's office for an opinion in the matter.
In an Aug. 2 story, Crowley reported that Higgins "has said the city will review how the Council records and retains minutes from its closed-door sessions… Higgins has the city's labor attorney, Elaine M. Reall, ready to assist with that review but stressed she would like to see city councilors take the lead because the executive session minutes belong to and are approved by them." According to the Gazette, Higgins said Sheppard "recently conferred with the Secretary of State's office about whether the city is complying with the state's Public Records Law regarding its executive session minutes."
"They told us what we're doing is correct," Higgins reportedly said.
(The Aug. 2 story hit before the Gazette reported Sheppard's resignation—Gazette reporter Bob Flaherty's piece, "Northampton's lawyer quits, citing political 'distraction'" appeared on Aug 4; the city solicitor's official letter of resignation is dated July 31.)
In his Aug. 19 report, Dan Crowley quoted from emails the Gazette obtained through one of many public records requests the newspaper filed this summer. The email exchange between Sheppard and Midura not only seems to corroborate Bardsley's account of his conversation with Midura—the one in which he said she told him about Sheppard's instructions to shred her notes—but also appears to have caused the mayor to abandon her defense of the city's handling of the minutes.
In an email to Janet Sheppard, Midura wrote, "After you reviewed and approved the executive session minutes for release to the City Council, it was my understanding from you to shred my handwritten notes. I did this on Friday, June 12, 2009."
"In a brief reply," Crowley reported, "Sheppard responded by thanking Midura for the update."
While continuing to call for changes to the Council's record-keeping practices for executive sessions, Higgins "said she did not learn that Midura's meeting notes had been shredded before a record reached the council for approval until the Gazette filed a public records request for city emails, which she then reviewed," Crowley reported, quoting Higgins: "I had not realized the date of doing that. Any handwritten notes should be held onto until the (official) record is created."
In the same Aug. 19 story, Higgins announced her plan to reprise the closed settlement meeting as a way to restore public trust.
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In an interview after the Sept. 3 "redo," Bardsley said he came away from the session even more troubled than he was before.
During the reprisal of the settlement discussion, Mackie, the city's lawyer on the landfill case, said in response to a question from Bardsley that there was nothing in the settlement agreement, nor was anything disclosed about the settlement negotiations during the May 21 executive session, that couldn't be released to the public. In Bardsley's opinion, Mackie's statement runs directly counter to Sheppard's statement in her Aug. 23 op-ed in the Gazette that she removed two sentences about settlement negotiations to honor the terms of the settlement and avoid further litigation.
"It's still not clear what was removed [from Midura's original minutes] and why it was removed. There are some very serious questions that remain unanswered," Bardsley said.
Why not call for a deeper investigation, the Advocate asked?
"I've been told that a complaint has been filed with the state Attorney General and that an investigation has been opened," Bardsley said, declining to cite his source. "That will tell us if there was something done illegally."
Amie Breton, a deputy spokesperson in the state AG's office, would neither confirm nor deny that an investigation is underway.
Illegal or not, Bardsley said, the minutes were, as he's been saying for months, "clearly inadequate and not in keeping with the spirit of open and transparent government.
"When questions about the minutes first arose, the mayor said she had to call Boston to find out if something was done wrong," Bardsley said. "That's shocking. I wouldn't have had to call Boston to find out if something was wrong with the handling of these minutes."
Bardsley said an aspect of the Sept. 3 reenactment impressed him in the same way the original settlement meeting did: from Department of Public Works Director Ned Huntley and the lawyers, Bardsley said, "it's clear there was a denial of any real problems with the landfill, with problems of odors, for example. The problems were people, people causing trouble, trying to shut down the landfill, troublemakers that have to be removed."
Bardsley said he also "came away with the idea that, if we lost [the lawsuit], the city would be in big trouble. Yes, [the lawyers] said they thought the city would win, but there was extra urgency to settle it to avoid big trouble. I think there was more to the lawsuit than we know. I don't think it was a nuisance case. I'm not convinced that it would have been dismissed as frivolous, as Ned and Mackie seemed to suggest."
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Higgins denied that the landfill minutes were purged for political reasons.
"I can't speak for the city solicitor, but the concern was around the question that you agree to go into mediation with someone and people say things in mediation that they might not say otherwise and that we had an obligation to protect that. That's where that came from," Higgins said. She also said, "The only issue around the minutes was, we weren't finished getting both parties to sign on the agreement."
So a different decision might have been made about the minutes if the agreement had been fully signed?
"Sure," Higgins said. "But quite frankly, if you look at all our other [minutes], they're no more wordy than [these minutes]." The decision to ask Midura to alter her initial public record, Higgins said, was "totally based on past practice and the city solicitor's view of where we were in the case. "
The Advocate asked Higgins if she had any conversation with Janet Sheppard about the minutes as they were being prepared for release.
"The only conversation I had was that they shouldn't be verbatim minutes," Higgins said.
Did she speak about the minutes with Mary Midura?
"I don't remember, to be honest, because I have had a lot of conversations with Mary since. This is not the only thing that goes on here. There's lots of other things that are equally as important. Remember, this all happened at the same time the override had just passed and I was busy trying to shuttle money back into budgets."
During the 90-minute interview on August 20, Higgins stressed several points by repetition. She said several times that minutes the city has released from other executive sessions were just as sparse on detail as the settlement minutes. She said repeatedly that she believes the city would have won the lawsuit, but it would have been costly, not only in terms of money, but the cost of "having unhappy neighbors." She noted on two occasions that any councilor who found the settlement minutes lacking could have moved to amend them on June 18.
The mayor also repeatedly stressed that none of the decisions made with respect to public records, including the minutes from the May 21 settlement meeting, were politically motivated or intended to hide information that might influence public opinion.
"Let's think about the politics for a minute," Higgins said. "If I was being political about this, why wouldn't I have delayed this until after the election in the first place? There was no rush to settle this. There were ways to drag this court case out until after the election if I didn't want this to come up beforehand. So there was nothing political about it."
