Nantucket Current | Dueling Complaints Alleging Open Meeting Law…

Open meeting law complaints have been filed against the Select Board and Board of Health in the wake of a heated Board of Health discussion on the merits of an artificial turf field the Nantucket Public Schools plans to install at Vito Capizzo Stadium.

The discussion was cut short when several Select Board members suggested that it was veering close to a violation of the state law intended to ensure that government meetings are open and accessible to the public. Now, advocates for and against turf are claiming that the Board of Health and Select Board violated the open meeting law at the same meeting, and are calling for formal corrective action.

The Board of Health has been considering blocking the turf field for months with a potential ban on artificial playing fields, largely because of concerns that they may contain harmful chemicals known as PFAS, which Nantucket Public Schools representatives deny.

On one side, pro-turf advocates allege that Board of Health chair Ann Smith violated open meeting law by failing to properly agenda items that were discussed and by circulating the motion she intended to make to the rest of the board before the meeting. On the other side, anti-turf advocates claim that the Select Board violated open meeting law when a majority of the board – chair Dawn Hill, Tom Dixon, and Brooke Mohr – called for Smith to shut down the discussion during the Board of Health meeting on Thursday, which could constitute a deliberation without a noticed meeting.

Several hours before the Board of Health meeting, chair Ann Smith sent her fellow board members a motion she intended to make, which would have allowed the installation of turf at Vito Capizzo Stadium, but only if it met as-yet-undefined Board of Health requirements. During the meeting, the three members of the Select Board all suggested that making the motion could constitute a violation of open meeting law, as the item on the Board of Health’s agenda was overly vague.

“This topic is not agended. It is not noticed properly. Town counsel has weighed in on it. You are, in my understanding…[in a] very, very grey area here on open meeting law,” Select Board member Brooke Mohr said. “I think you’re very, very, very in muddy territory here.”

Select Board members also suggested that Smith’s email could come close to an open meeting law violation itself.

“I would err on the side of caution here, make all of the emails public, and continue this hearing to a later date,” Select Board chair Dawn Hill said.

The Massachusetts open meeting law requires that most deliberations of public government bodies be open to the public, defining a deliberation as “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, however, that ‘deliberation’ shall not include the distribution of a meeting agenda, scheduling information or distribution of other procedural meeting or the distribution of reports or documents that may be discussed at a meeting, provided that no opinion of a member is expressed.”

In a complaint against the Board of Health, Nantucket High School junior varsity girls soccer coach and emergency room nurse Kate Garrette requested the Board of Health clarify how potential future violations will be avoided and that “if discussion extended beyond the agenda, I request appropriate corrective action to ensure compliance with open meeting law and restore public confidence in the process.”

After summarizing the meeting, Garrette wrote that she had concerns that the “discussion extended beyond the scope of the posted agenda, that there may have been pre-meeting communication regarding board business, and that substantive deliberation continued after legal concerns were raised, limiting the public’s ability to understand, prepare for, and meaningfully participate in the meeting.”

The motions the Select Board flagged as concerning were ultimately not made. Garrette’s complaint also references Board of Health member Meredith Lepore, who attempted to make her own motion on turf. She was also unsuccessful. Lepore does not appear to have circulated her motion before the meeting.

On the other side of the debate, island resident Meghan Perry, who has filed multiple successful open meeting law complaints against other town boards, claims that the Select Board violated open meeting law because a quorum of the board pushed Smith to end the discussion.

“Three members of the Nantucket Select Board, Dawn [Hill], Tom Dixon, and Brooke Mohr, violated open meeting law when they attended the Board of Health and created a quorum of the Nantucket Select Board at a non-posted Select Board meeting,” Perry wrote in her complaint. “The coordination of their unison remarks establishes they had discussed and deliberated prior to the Board of Health meeting. They continued to deliberate and agree with each other at the Board of Health meeting.”

All three members of the Select Board mentioned by Perry spoke to urge Smith to close the discussion on Thursday, at times referencing and explicitly agreeing with each other’s comments. The attorney general will have to determine whether those comments qualify as a deliberation.

Perry asked for the Select Board members to “apologize to the public and the members of the Board of Health and attend workshops on open meeting law.”

Dixon’s term expires this spring, and he has indicated he will not run for re-election.

The duelling complaints underscore the divisive meeting and the Select Board’s highly unusual move to intervene in the proceedings of another board.

The attorney general will now review both complaints. The complaints are not mutually exclusive: it is possible that the state could find both boards in violation.

The Select Board appoints the Board of Health, and has shown a willingness in the past to remove members of appointed boards that stir controversy and clash with the Select Board and other town bodies. When the Conservation Commission began to run up against the Select Board’s wishes on the Sconset Bluff geotube project several years ago, the Select Board ousted its chair in back-to-back years, and a third Commission member resigned soon after.

Smith and Lepore’s terms both expire this year.

The Nantucket Public Schools plan to install an artificial turf field at Vito Capizzo Stadium – pending approval of a debt exclusion override at Town Meeting – but the Board of Health had been considering whether to prevent the installation through a ban on turf. After Thursday’s meeting, Smith told the Current that a ban on turf is “not on the table” and suggested that a “compromise” would be reached.

For half a year, the debate on the turf field, which the School Committee endorsed after significant debate, has centered on PFAS, so-called forever chemicals linked to cancer and other adverse health effects. Advocates of turf claim that the materials for the proposed field at Vito Capizzo Stadium will include no intentionally-added PFAS, which could actually be safer than natural grass, considering the background levels of PFAS present in Nantucket’s soil. On the other side of the debate, some anti-PFAS experts claim that the tests used to make those claims aren’t sensitive enough to detect all PFAS, and that the proposed artificial turf material is likely to add some PFAS to the environment.

“I move that the Board of Health takes no action to prevent the proposed installation of an artificial turf field and related track improvements at Vito Capizzo Stadium,” one of Smith’s motions reads in part. “I further move that no turf, track, infill, backing, shockpad, adhesive, or related product may be shipped, delivered, installed, or placed into service unless and until the contractor has satisfied pre-installation requirements to the satisfaction of the Baord of Health, under standards, criteria, and review procedures initiated and approved by the Board and made a mandatory part of the bid, procurement, and contract documents.”