Negotiations between the town of Foxborough and the Kraft Group regarding future development at Patriot Place have been delayed again following Tuesday’s vote by the Board of Selectmen to dissolve the town’s negotiating committee.
Foxborough Town Counsel Richard Gelerman advised the board to dissolve the committee, which was appointed by selectmen in September, because it was subject to Open Meeting Law.
“Upon direction of Attorney Gelerman, the board rescinded its vote that created the committee with the four people – Town Manager, two selectmen and Town Counsel – and a fifth person being special counsel due to potential Open Meeting Law issues,” said Board of Selectmen chair James DeVellis.
Gelerman explained to the board Tuesday that the negotiating committee, as originally established, was subject to Open Meeting Law because the board appointed members to the committee, which inadvertently created a sub-committee.
“[We] had concerns that during this process [of appointing a negotiating committee] we created a sub-committee, which would be subject to Open Meeting Law,” Gelerman said. “I talked about the issue with [Town Manager Kevin Paicos] and we thought the safest approach would be to discuss the matter with the Attorney General to make sure whatever we did was something they could support.
“I fortunately was able to talk with the Assistant Attorney General [Tuesday afternoon].”
Based on that conversation with the Assistant Attorney General, Gelerman recommended the negotiating committee be dissolved.
“The reason for that is once you get above two or more persons [on the committee] and it’s the selectmen doing the creation of the committee, the argument could be made that that action itself creates a sub-committee of [the Board of Selectmen],” Gelerman said.
Under the current conditions, all negotiations between the committee and the Kraft Group would have to be done in public session to avoid a violation of Open Meeting Law. Gelerman said it would be nearly impossible to effectively negotiate with the Kraft Group in public session and suggested the best way to address the issue would be for selectmen to eliminate the current committee and appoint one person – Paicos – to represent the town's new negotiating committee in negotiations.
“The person that you appoint certainly has the power to select other members of the town as he needs in order to help with negotiations,” said Gelerman. “Frankly, it gets to the same place. … My recommendation is you appoint the town manager. He understands your wishes and I understand your wishes. If we format the group that way it will be and look the same and will function the same. With that, those persons can report back and that won’t be a problem [with Open Meeting Law].”
By appointing just one member to represent the town in negotiations, Gelerman said selectmen and the negotiating committee avoid violating Open Meeting Law.
“The meetings of the person you appoint will not be subject to Open Meeting Law … because the person who creates the group to talk is not the appointing authority,” Gelerman said. “[Paicos] is not a public body like the selectmen [are], therefore his creation of a team to help him does not create a sub-committee because he is not a committee. When the selectmen do it, appoint a committee, [they] are creating a sub-committee.”
Some selectmen, however, were not comfortable with Gelerman’s solution and questioned his advisement.
“I’m unclear on how this change in selection process makes us no longer subject to Open Meeting Law,” said selectman Lorraine Brue, who was a member of the now dissolved negotiating committee. “I just don’t feel comfortable that it passes the smell test because I feel like it’s the same process and same direction going on.”
Gelerman repeated the conversation he had with the AG’s office.
“[The difference is] you are appointing one person,” Gelerman said. “That’s all you’re doing. That person cannot be a sub-committee because it is just a person. … The selecting [of the negotiating committee] is done by the person you are permitting and not by [the selectmen]. That’s the difference.”
Still not convinced, Brue said she would only feel comfortable moving forward with Gelerman’s solution if the AG provided written approval of the process the board had been asked to follow.
“I feel we violated Open Meeting Law the first time and I am clearly not comfortable doing it,” Brue said. “I would be very comfortable doing it with it in writing from the AG’s office.”
Gelerman suggested the board was making the decision more difficult than it needed to be.
“Frankly, and respectively, it is not all that complicated,” Gelerman said. “I’ve advised you to use a method to proceed with negotiations that you’ve already decided to do and based on my opinion and conversation with the Attorney General, it is the safest way to do it and not be in violation of the Open Meeting Law.”
Despite Gelerman’s best efforts to clearly explain the advice he gave selectmen came from his conversation with the AG’s office, the board decided to table Tuesday’s discussion without appointing a negotiating committee member in hopes of gathering more information for the Oct. 30 BOS meeting.
“We were not able to reappoint a new committee as there is further information and discussion that was requested with respect to the Open Meeting Law,” DeVellis said.
Gelerman was tasked with obtaining more information from the AG to present to selectmen at the Oct. 30 meeting.
The action taken by the board Tuesday is just another wrinkle in the town’s ongoing negotiations with the Kraft Group, which over the course of several months has seen two town committees tasked with negotiating future development of Patriot Place dissolve.
“Beginning in July, we participated in several public meetings with the now-dissolved ad hoc committee chaired by [selectman Lynda Walsh] and more recently have met with the committee chaired by selectman [Mark] Sullivan and appointed to negotiate future development proposals for Patriot Place,” said Jeff Cournoyer, spokesman for The Kraft Group in a statement. “We have participated in more than a dozen meetings on this subject with various committees and boards and remain hopeful that we can help the town achieve its long-term water and sewer goals while also attracting new businesses to the town and generating incremental tax dollars. We were surprised and disappointed that the negotiating committee was dissolved on Tuesday night without notice.”
A negotiation session between the Kraft Group and the town’s now dissolved committee was scheduled for 5 p.m. Tuesday but was cancelled to allow Gelerman to speak with the AG’s office and the selectmen to discuss the issue at the BOS meeting. A second negotiating meeting between the town and the Kraft Group was scheduled for Oct. 30, but has also been cancelled because there is no longer a committee the Kraft Group can meet with after the board was unable to appoint a new negotiating committee member.
DeVellis called the snag in negotiations a “small delay” and hopes to have the issue resolved at the Oct. 30 BOS 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.
"There are arguments to both and that is why there is a small delay. The vote was rescinded only to make the process as transparent and effective as possible and conform to the open meeting laws and not because there were problems with the discussion topic to date.”