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Monday, October 15, 2012

Another alleged failure of open and transparent government

Jim Mageau files suit alleging Council broke the law when it paid Town Administrator DiLibero to leave
Mageau charges the Town Council broke the Open Meetings law when
it voted on former Town Administrator Bill DiLibero's severance deal
By Will Collette

Independent Town Council candidate Jim Mageau filed suit in RI Superior Court on October 4 against the town of Charlestown and the members of the Town Council.

In his lawsuit, Mageau alleges that the Town Council violated the Open Meetings Act by failing to give public notice that it planned to execute a severance agreement with former Town Administrator William DiLibero at a regular session of the Town Council on April 19th.

DiLibero was forced to resign after months of character assassination by the Charlestown Citizens Alliance through its “Kill Bill” campaign. Only a short time after praising DiLibero for his gallant service during Hurricane Irene, the CCA Council majority decided he had to go for actions he undertook at their direction. 

The last piece of the “Kill Bill” campaign fell into place when the RI Ethics Commission issued a bizarre ruling authorizing Councilor Lisa DiBello to vote against DiLibero even though DiBello was suing him.

In closed session, DiLibero offered his resignation and also offered to stay on board until mid-June to permit a smooth transition. But my sources say that CCA Town Council boss Tom Gentz was so angry at DiLibero that he didn’t want him around another minute. So even though DiLibero’s official end date was June 18th, DiLibero was effectively terminated that day. His severance agreement added an additional four months of salary.

Mageau alleges that the Town Charter (Article X, section C-41.D) limits severance pay in the case of a resignation of this sort to no more than three months plus benefits, and that the Council’s agreement with DiLibero offered him double that amount.

Mageau argues that it violated the Open Meetings Act for the Council to emerge from its executive session and then vote to approve the severance agreement in open session without giving the public proper advance notice, especially since they were voting to expend funds above the amount authorized in the Town Charter.

Mageau also argues that the Council compounded the offense by agreeing in closed executive session on May 14th to authorize boss Gentz to sign the severance agreement without including proper notice in the agenda notice for the executive session.

Mageau includes the May 14th agenda, Executive session minutes and DiLibero’s severance agreement as Exhibits C, D and E attached to his Complaint.

This is the second time that Mageau has called out this Town Council majority on an action it took regarding Town Administrator DiLibero. In 2011, Mageau filed an Open Meetings Act complaint with the state Attorney General charging the Council majority with violating the Act by holding a vote to give DiLibero a raise, again without proper advance notice to the public.

On November 17, 2011, the Attorney General upheld Mageau’s complaint, ruling that the Council did indeed violate the Open Meetings Act and requiring the Council to do over their action.

NOTE: Failure to give proper notice may seem like no big deal, except it is. Without proper notice, the public's right to know and to participate is seriously harmed. When it involves taxpayer money or important policy matters, that's a very big deal.

Mageau alleges in his new lawsuit that the actions by the Council are pretty much the same that they were cited for last November. Thus, Mageau argues that the court should deem the Council’s actions as intentional this time since they should have learned their lesson the last time and asks for fines of up to $5000 on the Town and the individual Council members, plus court costs.

Jim Mageau and I disagree sharply about DiLibero’s value and performance. However, in this instance, DiLibero’s character and job performance are irrelevant to the merits of Mageau’s lawsuit. What matters is whether this CCA-controlled Town Council has once again violated the state Open Meetings Act[1].

Based on the facts and supporting records laid out in Mageau’s lawsuit, it looks like Mageau might be right again.

Despite its rhetoric about “openness, transparency and professionalism,” this Town Council has a terrible record on openness, transparency and professionalism. Even though they were cited by the Attorney General in November for an open meetings violation for their actions to praise DiLibero, only five months later, in April, this same Town Council, in its rage against DiLibero and desire to purge him, seems to have committed the same violation.

This time, the Town may not get away with a simple “do over” order.

Click here to read Mageau’s lawsuit filing.

[1][1] The Attorney General upheld Mageau’s earlier complaint about the Council’s violation of OMA when the Council conducted DiLibero’s evaluation at an open Council session and gave him a raise, without proper public notice. 

The judge in Dr. Jack Donoghue’s Y-Gate lawsuit has already ruled that the Council violated the Open Meetings Act when it voted to spend $475,000 on a conservation easement to the property without proper public notice. 

The Town Solicitor admitted to the Attorney General’s office that the Charter Revision Advisory Committee violated the Open Meetings Act by failing to publish the minutes of its final meeting prior to a scheduled hearing on their final recommendations before the Town Council. 

That’s just open meetings violations – access to public records issues, missing or imaginary documents, Clerkbase issues, etc. offer many more examples of issues the CCA Council majority has had in keeping its promises to be open and transparent.