Foxborough’s Board of Selectmen has some important decisions to make at its Oct. 30 meeting regarding the status of negotiations with the Kraft Group for future development at Patriot Place.
Chief among those decisions will be whether or not negotiations between the town and the Kraft Group should be done publicly. The suggestion was first made by Board of Selectmen vice chair Mark Sullivan after Town Counsel Richard Gelerman informed the board the town negotiating committee it appointed in September was subject to Open Meeting Law because of how that committee was created.
To read more on why the negotiating committee was subject to Open Meeting Law, click here.
“No disrespect, I got a better idea,” Sullivan said after hearing Gelerman’s recommendation to dissolve the negotiating committee. “Why don’t we just do an open session in front of the [Board of Selectmen] completely. What’s wrong with this whole board being part of the process with the public being part of the process? I don’t see anything.”
“I understand the frustration in government of wanting to serve the public interest in open session,” Gelerman said to the board at Tuesday’s meeting. “Frankly, it’s been my experience that it’s very hard to conduct a negotiation under those circumstances. I don’t know how as a board you can express your bottom line, what you want without doing it in private. It’s as simple as that.
“There will come times during negotiations where there will be a discussion of what you’re willing to accept and what you’re not. The board needs to talk about that amongst itself and need to give your negotiating team that information and need to do it so that the person with whom you’re negotiating with doesn’t know it and you can’t do it openly. That’s just the nature of the beast and it’s a real problem in town government.”
To correct the error originally made in appointing a negotiating committee, which made the group subject to Open Meeting Law, Gelerman recommended appoint a singular member – Town Manager Kevin Paicos – to negotiate on the town’s behalf. Paicos would then be able to appoint his own committee, thus avoiding violation of Open Meeting Law.
“We can get to the same place [that the committee was at before Tuesday] if [the board] were to rescind [its] vote and appoint one person as the negotiating person for the town on these issues,” Gelerman said. “That person should not be a selectman because a member of the board, appointed by the board, has the authority to enter into any agreement if we reach it – that would not be advisable.”
Gelerman added Paicos, because he is not part of a board, would not be subject to Open Meeting Law and would work within the framework of the law to properly negotiate in executive session.
This is where the board balked, taking no further action to appoint Paicos as the town’s negotiator because some members questioned whether negotiating in executive session was in the best interest of the town.
“I just think we should do it publicly as best as we can,” said selectman Lorraine Brue.
Sullivan and Brue – who both served briefly on the now dissolved negotiating committee – were the most outspoken officials in favor of negotiating in open session, as was Foxborough resident Howard Siegel, who said during Tuesday's meeting the town voted for a transparent government and therefore wants a transparent government.
“I have a bunch of problems with what’s going on … I think first of all, doing away with [the negotiating] committee just because it’s subject to Open Meeting Law sends a bad message,” Siegel said. “Second of all, you have to look at what the purpose of the Open Meeting Law is - that’s to protect the citizens of Foxborough so we know what was is going on. The people’s business is done publicly in open meetings in front of the people.
Siegel added he was bothered by Gelerman’s recommendation to selectmen because it would result in negotiations being done privately.
“It is extremely troubling to a citizen to hear the town counsel, not the selectmen’s counsel, the town counsel telling you how to form a new group that is exactly the same but somehow through slight-of-hand it’s no longer subject to the Open Meeting Law so that you can have your negotiating committee and it’s not transparent,” Siegel said.
Gelerman disagreed with the resident’s rationale.
“Transparency is terrific and if there were a way to be transparent with everybody but the Kraft organization that would be great but we can’t,” Gelerman said. “But transparency means you say everything in public and the Kraft organization listens. That’s the conundrum you are in. You can’t do it. We’ve all been involved in countless negotiations … you simply can’t do it that way.”
DeVellis understood Siegel’s point but agreed with Gelerman that the majority of these negotiations belong in executive session.
“Some of [these negotiations] must be done in executive session because that’s the nature of it,” DeVellis said. “My experience is the negotiation has to be done in a small group and then brought out to the public.”
Siegel stressed negotiations between the town and the Kraft Group was the “people’s business” and needed to be done in public.
“This needs to be done in front of the people,” Siegel said.
Sullivan saw no issues with that statement.
“It can be done in the open,” Sullivan said. “Then we don’t have to educate the public afterwards about the process. They will have been educated through the process. Let’s just get it going and do that.”
But would public negotiations really be successful in terms of reaching an agreement between the town and the Kraft Group for future development of Patriot Place?
Gelerman says it would be “extremely difficult” and Paicos believes those discussions would be lacking substance.
“Having a negotiation this sensitive in a public meeting is impossible,” Paicos said. … “It is the nature of business that [a company] will not disclose in public certain things that will harm their business interests. …
“Having a discussion about the things that are on [the Kraft Group’s] term sheet, which is a public document, and having it in public and having the expectation that you are going to have a full and rich discussion is not a rational thought.”
Public meetings with the Kraft Group were held this past August after selectmen appointed a public advisory committee, chaired by Walsh, to explore future business opportunities with the Kraft Group. After several meetings between the two sides, which were well attended by the community, the public advisory committee felt they could not discuss anymore in public and disbanded with the recommendation that a negotiating committee be established.
Selectmen did just that, appointing Sullivan, Brue, Paicos and Gelerman to represent the town in negotiations with the Kraft Group. But that committee was dissolved Tuesday after a lengthy discussion between the board and Gelerman.
Selectman Lynda Walsh - taken aback by her fellow board members’ collective indecision – suggested they take Gelerman’s legal advice to appoint Paicos as the town’s negotiator and move forward.
“Counsel has been sitting here for four hours and is telling us the same thing that he told us three hours ago,” Walsh said. “He’s spoken to the AG’s office, I’m going by what Town Counsel is advising ... you don’t always have to agree but you better trust your attorney.”
Walsh added she thought the best way to address these issues would be to simply eliminate selectmen from sitting on the negotiating committee.
“Take [the selectmen] right out of it and have [Gelerman] and [Paicos] come back and talk to [the board] in executive session for certain things otherwise update [the board] during a public session and that’s it,” Walsh said. “Just take the selectmen right out of it. It’s the only way to do it.”
Sullivan strongly disagreed.
“People in town are not going to be happy about that,” he said. “We are the five people they voted for to represent this town. They will be more upset about us not being involved more than they would with any Open Meeting Law violation.”
Making matters more complicated Tuesday, the board opted to table its discussion after members could not agree on what the next step should be. Instead, the board requested more information from Gelerman on its options – to either hold negotiations with the Kraft Group in public or executive sessions.
DeVellis said Wednesday he is hopeful the issue will be resolved at the board’s next meeting.
“I want to put this on the next agenda so we can move ahead quickly and continue,” DeVellis said. … “The concern [Tuesday among selectmen] was that in order to protect both sides of the bargaining table [in negotiations], some meetings should be in executive session. The previous committee did not have that ability [to meet in executive session because of Open Meeting Law] so we are trying to determine if all meetings should be held in public session and continue as we have started, or address it differently.”
Until that issue is settled, however, there will be no negotiations between the town and the Kraft Group taking place.
“We have quite a dilemma here,” Paicos said. “I guess what I’m telling [the board] is that I don’t have an easy way to fix this. The AG doesn’t have an easy way to fix it. It comes down to this: Either we are going to do it in public the way we have been doing it with all the warts that has got. … It’s also got some advantages because the public knows what we’ve been doing for better or worse. … Or, [the board is] going to have to pass this motion. It’s [their] choice.”
That “choice” is expected to come Oct. 30.
So Foxborough, we want to know … should the town and Kraft Group only negotiate in public session or do you have faith a deal – that’s good for the town – can get done behind closed doors? Tell us what you think in the comments section below!