Bad News CLC & CVEC

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Massachusetts Supervisor of Public Records Rejects the Obstructionist Tactics of the Cape Light Compact and the Cape & Vineyard Electric Cooperative and Orders the Release of Public Documents

Please find attached the official determinations of the Supervisor of Public Records for the Commonwealth of Massachusetts issued on February 5, 2014 in response to a series of recent complaints about the blatantly hostile and obstructionist tactics of the Cape Light Compact and the Cape & Vineyard Electric Cooperative and the failure of these public bodies to provide various public documents in accordance with the provisions of the Massachusetts Public Records Law. 

For the first time ever, the MA Public Records Department has given close scrutiny to these tactics that have been routinely employed by CLC and CVEC -- with the advice, encouragement and active participation of their "shared legal counsel," BCK Law -- and has ruled against CLC and CVEC on all counts.

The Supervisor of Public Records reviewed CLC's imposition of arbitrary and onerous charges for the production of records; the introduction of unnecessary and illegal delays; and the illegitimate assertion by these bodies of unfounded claims to attorney client privilege and/or business confidentiality and declared all of these trumped up excuses employed by CLC and CVEC for failing to provide public documents on a reasonable and timely basis (and sometimes, to withhold documents altogether) to be utterly without merit.

It is critical to note that hese tactics employed by CLC and CVEC to delay disclosure, to withhold documents and/or to attach arbitrary and punitive financial costs to the procurement of public documents which were decried by the Supervisor of Public records as a violation of the fundamental responsibility of every public body to be open and transparent to the public are not limited to this handful of instances in the extant complaints.

In fact, these abrogations of the Public Records Law are identical to the tactics that have been continuously employed by both CLC and CVEC over the past three years in response to virtually every public records request, from numerous members of the public, as CLC and CVEC have resolutely stonewalled efforts to understand their governance and their administration of public funds.

It must also be noted that CLC and CVEC have been guided by the same combative legal counsel and have shared the same decidedly uncooperative Records Custodian since the respective inceptions of these organizations, Ms. Maggie Downey, until Ms. Downey's recent withdrawal from the day-to-day operations of CVEC.

The familiar laundry list of arbitrary and unwarranted impediments and unreasonable refusals to provide public records that were repudiated by the Supervisor of Public Records in this recent determination includes all of the following:

1. Illegitimate and unsubstantiated claims to "attorney client privilege."

2. Illegitimate and unsubstantiated claims to a privilege of confidentiality under Exemption 10 to the Public Records Law (and the OML) by merely citing the statute itself, but never proving the specificity of the exemption and how it applies.

3. Illegitimate refusal to provide minutes in "draft" form before they have been "compiled," typed, formatted or approved.

4. Illegitimate and unreasonable imposition of charges to convert records into the form in which the respondent desires them to be received by the requestor, rather than simply providing access to them on a timely basis, as required by law.

5. Illegitimate, unjustified and arbitrary imposition of copying charges for documents that exist in, and were requested in, electronic form, or for which the requestor requested only an opportunity to review the existing records.  The Supervisor noted that the respondents not only failed to provide access to the records without imposing copying charges but failed even to acknowledge that the documents had been requested in electronic form. 

6. Arbitrary and unsubstantiated assessments for labor associated with the preparation and production of documents for which there is no reasonable justification or explanation. 

7. Outright refusal to provide access to documents such as CVEC's "Strategic Plan" because of an unfounded claim to confidentiality, even though the body (CVEC) states that it is its intention to release it to the public at a later time.

8. Unreasonable, illegal and unjustifiable delays in delivering documents that were requested.

As noted, ALL of these ruses have been routinely practiced by CLC and CVEC over the past three years -- multiple times -- on occasions too numerous to count.

At long last, the Public Records Division of the Secretary of the Commonwealth has examined all of these methods of withholding public information, or making the cost of obtaining such routine information prohibitively expensive, and has rejected them all.

Responses of the Cape Light Compact and the Cape & VIneyard Electric Cooperative Demonstrate an Alarming Lack of Interest in Accounting for the Use of Public Funds

It must also be noted that the content of these particular responses from CLC and CVEC is highly alarming as it reveals the gross mismanagement of both organizations, particularly as it relates to their reckless administration of public funds and their lack of interest in accounting for how these funds have been spent.

1. According to CLC, there are "no records" of any reports or correspondence from CVEC to CLC relating to the $335,792 emergency appropriation that the CLC Governing Board secretly provided to CVEC on March 23, 2011 to pay for CVEC's "litigation strategy" for Brewster wind. 

The "litigation strategy" was abandoned within months -- by CVEC's own admission -- but CVEC never returned the unspent funds; never asked for permission from CLC to use the funds or a new and different purpose; and indeed, never accounted to CLC for a single penny of these funds or how they were actually spent. 

Furthermore, even though the CLC Board voted unanimously during the executive session to make public this appropriation of funds for CVEC, the management of CLC resolutely refused to make any official public disclosure of this event, or to release the portion of the executive session minutes pertaining to this vote, for a period of two years (in April of 2013). 

In response to my Open Meeting Law complaint in 2011, representatives for CLC and CVEC (Ms. Downey and Attorney Erin O'Toole from BCK Law) informed an Assistant Attorney General in the Office of the Attorney General - Open Government Division that this action should be entitled to secrecy-- notwithstanding the vote of the CLC Board to disclose this action to the public -- because the funds were to be used for the "litigation strategy" of pursuing a permit existence through the DPU for the Brewster Wind project after the Brewster Planning Board refused to approve a special permit for the project. 

These representatives told the Assistant Attorney that CVEC had presented the CLC Board with an "itemized list" of legal expenses associated with the proposed "litigation strategy" in order to justify the emergency appropriation of funds.  Ms Downey and Attorney O'Toole argued that this "itemized list" of litigation expenses constituted proof that the funds were to be used to support the "litigation strategy" and that the appropriation itself should therefore be entitled to secrecy (even though the CLC Board had voted to disclose it).

CVEC did not use the money for any "litigation strategy" related to Brewster Wind because this strategy was abruptly abandoned a few months later -- as everyone knew from the public comments of CVEC officials.  And any opportunity to pursue the "litigation strategy" of appealing to the DPU definitively ended one year after the refusal of the Brewster Planning Board to approve a special permit when the deadline for initiating such an action expired.

Yet CVEC never provided CLC with any report or correspondence or accounting as to how CVEC actually did use the $335,792 in CLC Ratepayer funds awarded by the CLC Board, or how CVEC might intend to use them.

And the CLC management and board never bothered to ask CVEC to return the money -- or even to explain what had become of this enormous gift -- despite repeated demands from members of the public for a full accounting of these CLC Ratepayer funds.

CLC just forked over this emergency appropriation that CVEC never used for the intended purpose -- as everyone did from reading the newspapers -- and failed to express the slightest interest as to the actual use of the funds.

In fact, not only did the CLC Board not require -- nor did CVEC ever provide -- any accounting for these funds, but CLC continued to make, and still continues to make, additional, unrestricted, virtually open-ended commitments of CLC ratepayer funds to CVEC without having the benefit of any long-term strategic or financial plan for the entire CVEC enterprise.

2. There are no records of any request by CVEC, or any approval of the CLC Board, regarding any change in the use of these funds.  See #1 above.  No one at CLC or CVEC thought that this was worth discussing.

3. CLC's contention that the "itemized costs" of litigation for the Brewster Wind litigation strategy is protected by attorney client privilege is unsubstantiated and improper. 

The Public Records Department has skipped over the point that regardless of whether these "itemized expenses" were delivered in the form of "legal invoices" (which I never claimed) or "legal budgets," the "litigation strategy is long since dead and, therefore, the details of this "litigation strategy," in any form, may no longer be claimed to be "sensitive" or "confidential." 

As noted, these documents were used by Ms. Downey and Attorney O'Toole in an attempt to legitimize the claim of secrecy concerning the actions of the CLC board during executive session on March 23, 2011 when the $335,792 appropriation for CVEC was secretly discussed and approved.

But the executive session minutes of this meeting, and all of the deliberations surrounding these events are now publicly disclosed and the litigation strategy is defunct (the deadlines for pursuing it have long since elapsed).  So no privilege of any kind obtains to these "legal budgets" -- or however CLC now wishes to characterize them.

It can also be forcefully argued that no legitimate claim to secrecy concerning this action could possibly ever have been applied in view of the strong desire of the CLC Board to make this action public -- as expressed in their unanimous approval of the motion to do precisely that.

4. The super secret CVEC "Strategic Report" which CVEC has been chewing over for at least a year is a public document, according to the Supervisor of Public Records -- just as members of the public have insisted that it should be.  

CVEC's assertion of a privilege of confidentiality pertaining to this document is illegitimate. 

CVEC's refusal to provide public access to the CVEC "Strategic Plan" that will be instrumental in determining the future course of this public body is illegal.  

Even if the Strategic Plan goes through any number of iterations before it is finalized, there is no legal basis for CVEC to withhold this document, even in draft form, from the public.

5. The routine delays and refusals by CLC and CVEC to provide minutes until they are approved, compiled, typed or converted from "draft" form to some other version is illegal.

Both CLC and CVEC, under the direction of Ms. Downey as Records Custodian, have routinely refused to provide timely access to meeting minutes and meeting exhibits over the past three years, by insisting upon imposing these very same delays and conditions which the Supervisor of Public Records has ruled to be illegitimate and illegal.


The epic and serial refusals of the Cape Light Compact and the Cape & Vineyard Electric Cooperative to provide even the most routine public documents -- including meeting minutes, meeting exhibits, financial statements, details of significant appropriations and strategic planning documents -- to members of the public, to the Special Committee of Inquiry on the Cape Light Compact and the Cape & Vineyard Electric Cooperative, the Barnstable County Assembly of Delegates, certain energy committees and various other officials, have never had anything to do with the ability of these public bodies to produce these documents on a timely basis, in an efficient manner, at a reasonable cost.

These unnecessary delays; arbitrary and punitive costs; illegitimate assertions of various privileges of secrecy; outright refusals; creative and selective interpretations of the document requests; partial compliance masquerading as good faith compliance; and various other blatantly hostile and obstructionist tactics of these organizations have everything to do with their profound aversion to public scrutiny and their fierce determination to control what information is available to the public.

These recent rulings from the Supervisor of Public Records, which repudiate all of the means by which CLC and CVEC have attempted to withhold information in this handful of instances, demonstrates, yet again, that these organizations have so completely abnegated their fundamental responsibility to be open, transparent and accountable to the public that it raises the question as to whether the corporate culture can ever be changed, and whether these organizations will ever accept that they are, in fact, public bodies under the laws of Massachusetts -- and not quasi-private corporations that administer public funds but which have no responsibility to be fully transparent in this capacity.

Certainly, the current administration shows no sign of changing its philosophy of "doing business."  One can only hope that the possibility of removing the current management and making wholesale changes to the operations of these public organizations can offer some hope of future improvement.

  Cc: Municipal Members of Cape Light Compact and Cape & Vineyard Electric Cooperative
Cc: CLC Governing Board
Cc: CVEC Board of Directors
Cc: Barnstable County Board of Regional Commissioners
Cc: Barnstable County Assembly of Delegates
Cc: MA Officials
Cc: MA Office of the Attorney General
Cc: MA Office of the Inspector General
Bill Carson February 09, 2014 at 05:28 PM
"For the first time ever, the MA Public Records Department has given close scrutiny to these tactics that have been routinely employed by CLC and CVEC -- with the advice, encouragement and active participation of their "shared legal counsel," BCK Law -- and has ruled against CLC and CVEC on all counts."
sue hobart February 09, 2014 at 07:35 PM
how about that blowing smoke? oh yea you already took the money and ran!


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