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Mass. AG finds Weston board violated open meeting law over 40B discussion

The Massachusetts attorney general’s office has found that Weston’s select board intentionally violated the state’s open meeting law in 2018 by approving inaccurate executive session minutes after a board member requested a discussion of a development at a property owned by him and his family be struck from the record.

The discussion centered on projects proposed under the state’s Chapter 40B affordable housing law in the suburb west of Boston, according to a Tuesday letter from the attorney general’s office. Under 40B rules, developers can bypass most local regulations if less than 10 percent of the community’s housing is deemed affordable.

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Weston, one of the state’s wealthiest communities, has an affordable housing rate of 3.77 percent, according to the town’s website.

According to the attorney general’s office, Weston’s select board has tried to reach the 10 percent threshold for several years “at which point Weston can invoke a ‘safe harbor’ and its Zoning Board of Appeals may refuse to allow further 40B developments.”

Authorities said that the board considered a property at 133 Boston Post Road, a parcel not far from a significant Interstate 95 interchange, as the potential site of a major 40B project.

On Feb. 13, 2018, the three-member board met in executive session to discuss that property. Draft minutes of the session were circulated in October of 2018, and included a paragraph that mentioned another property, at 751 Boston Post Road. That parcel was owned by then-Selectman Doug Gillespie and his family, according to the attorney general’s office.

The paragraph read:

“The Board discussed the possibility of a developer building a friendly 40B project at 751 Boston Post Road and how that might offset the magnitude of the 133 Boston Post Road project while still achieving safe [harbor]. It was noted that the developer of Highland Meadows was interested in developing 751 Boston Post Road as a friendly 40B.”

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Three days after the minutes were circulated, Gillespie told the assistant to the town manager via e-mail that the minutes “are in error!”

“There was no 40B discussion at [sic] 751 BPR at this meeting. The developer didn’t reach out until May 2018. I would have recused myself anyway,” he said in the e-mail.

In another e-mail to the assistant in October of that year, Gillespie said, “Please just take any reference to 751 out of the minutes. Any mention by me was not for public consumption because it creates a conflict of interest for me. Bring revised copies to the meeting, or remove it from consent agenda.”

In that e-mail, he copied the board chair, and in doing so the action “constituted deliberation outside of a public meeting, in violation of the open meeting law,” according to the attorney general’s office.

The draft minutes were altered to remove any reference to the 751 Boston Post Road property, and the revised version was approved unanimously by the board on Oct. 9, 2018.

The attorney general’s office probed the matter after receiving a complaint from Owen Murphy, a researcher hired by a neighbor of the 133 Boston Post Road project, alleging open meeting law violations.

The attorney general’s office found that the board did not approve minutes for its Feb. 13 executive session in a timely manner and ordered board members to attend a comprehensive open meeting law training within 60 days. The office also cautioned that “similar violations in the future may result in the imposition of a civil penalty.”

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According to a document posted to the town of Weston’s website, a multi-million dollar agreement regarding the sale of the 751 Boston Road property to a developer was reached in February of last year. The agreement includes a $15 million purchase price and a condition that such a figure would be increased by $75,000 for every unit over 150 units that features in the final project. The buyer must have final approvals for construction, development, and use of the property for the deal to officially close.

A developer has since proposed a 180-unit rental project for two parcels located at 751 and 761 Boston Post Road, according to the attorney general’s office.

The attorney general’s office found that “The Board’s approval of the inaccurate minutes served to help Selectman Gillespie conceal his perceived conflict of interest from the public.”

That office said the board “intentionally violated the Open Meeting Law by approving inaccurate minutes to conceal information from the public.”

Gillespie is no longer on the select board but does serve as the town’s moderator. In an e-mail Wednesday morning, he said the attorney general’s office “has made the correct determination under the circumstances as presented." In the e-mail, he said he accepted responsibility for the mishandling of the record, calling it a “shortcut that shouldn’t have occurred.”

“During the February executive session, I had recused myself by not participating in the discussion, but I was present because I was unaware the subject would be discussed,” he said in the e-mail. “In retrospect, I should have requested the insertion of a statement indicating my recusal.”

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Messages left with the Weston Select Board were not returned late Tuesday night nor Wednesday. The Weston town manager deferred comment to the board.

Last summer Weston’s town counsel, in a letter to the AG’s office, said that the board “categorically denies any intentional violation of the Open Meeting Law.”

“The bottom line . . . is that the Open Meeting Law does not contain any prohibition on a member of a public body member requesting that staff revise draft minutes,” said the town counsel in the letter.

The e-mail that copied the chair was “at most, a clerical oversight,” according to the town counsel.


Danny McDonald can be reached at daniel.mcdonald@globe.com. Follow him on Twitter @Danny__McDonald.