DARTMOUTH — A Dartmouth official says a committee that helped develop new septic regulations has been violating the open meeting law for years.
In 2017, the state Department of Environmental Protection asked a panel of representatives from environmental organizations, boards of health, engineering firms, and the real estate business to review comments on its septic policies and weigh in on possible revisions.
Missing from the guest list: The public.
The stakeholders, called the Title 5/Groundwater Discharge Stakeholder Group, met four times between 2017 and 2020. Its subcommittee on nitrogen pollution from septic systems had met another three times by June 2022. The meetings weren’t announced in advance, so everyday people weren’t able to sit in or address the stakeholders. Some meeting recordings and slides are available online, but most are not.
That’s why Dartmouth Health Director Chris Michaud filed an open meeting complaint with the agency last week.
“It just becomes another component of the process that has been laced with secrecy,” Michaud said.
The complaint is the latest development in an intense, monthslong dispute over the controversial regulations. The agency has proposed rules that would force homeowners on the South Coast, Cape Cod, and islands to spend tens of thousands of dollars on nitrogen-filtering septic systems — unless their town puts together a plan to reduce nitrogen pollution in other ways. It’s an effort to protect marine life from harmful nitrogen runoff.
Dartmouth town officials and state lawmakers who represent the South Coast have objected to the draft rules, saying the regulatory process was opaque and the agency didn’t do enough to engage towns. Michaud had to file a public records request just to find out who was on the nitrogen subcommittee.
“If we were aware of what was going on and there was transparency, some concerns would have been raised,” Michaud said.
The agency has two more weeks to respond to the complaint. If Michaud isn’t satisfied with their response, he can appeal to the attorney general, who can decide whether the law applies and what the agency should do next.
The Massachusetts open meeting law requires public bodies to give notice of meetings at least two days in advance, make them open to the public, and share the minutes within a certain amount of time. Michaud’s complaint says the stakeholders failed to do that.
In response to one of Michaud’s public records requests for committee meeting materials, the agency said that the committee didn’t need to comply with the open meeting law because it was an “informal, ad hoc, stakeholder group.”
Michaud doesn’t buy that. The law defines a public body as any multi-member government group established to serve a public purpose, with some narrow exceptions.
“Irrespective of whatever they call themselves, the function was public,” Michaud said.
Experts share his view. There’s no exemption in the law for “ad hoc” committees, said Bob Ambrogi, a lawyer who serves as executive director for the Massachusetts Newspaper Publishers Association, which advocates for open government and press freedom.
“I don’t think it’s even a gray area as to whether this stakeholder group would have been covered by the open meeting law,” Ambrogi said. “The fact that they did not comply with the law is pretty disappointing.”
Ambrogi said it was “startling” that Michaud had to file a public records request to find out who was on the subcommittee.
“This is a government entity doing government work in the name of the public,” he said. “It’s just unacceptable. This seems to be a somewhat egregious case, honestly.”
Justin Silverman, executive director of the New England First Amendment Coalition, said he wasn’t aware of any exceptions in the law that would apply to the stakeholder group.
“Just because it’s this ‘ad hoc’ committee, as they describe it, doesn’t make it any less of a public body serving a public purpose,” he said.
Silverman said the attorney general’s decision on whether the group had to follow the open meeting law would come down to two main exceptions.
One of them allows a single official to appoint an advisory board to help them make a decision they have the authority to make on their own. One example would be a mayor assembling a panel to help her nominate candidates for a staff position, something the mayor could do herself. But the stakeholder group was advising on a regulatory process that involves an entire division.
There’s another exception for committees with a broad, flexible membership — like an advisory group for a school that’s open to any student, parent or teacher. Since it’s not clear who counts as a member or who may be present at any particular meeting, Silverman said a group like that would be exempt. But the environmental agency has posted a list defining the stakeholder group members, and Silverman said the exemption wouldn’t apply to an invite-only committee.
The agency still has the chance to resolve the complaint with Michaud before he appeals to the attorney general. But Michaud said the only response he would be satisfied with is if the agency agreed to re-draft the regulations from scratch.
In a statement to The Light, a spokesperson for the agency made no such promises.
“The Healey-Driscoll Administration is prioritizing public involvement and citizen input as we continue to review the proposed Title 5 regulatory amendments, which are meant to protect the natural resources of Cape Cod and the SouthCoast,” said agency spokesperson Ed Coletta.
The statement added that the agency “will continue to meet with and listen to the community during the review process” and that it’s “currently reviewing questions raised about the open meeting law.”
If Michaud successfully appeals to the attorney general, the environmental agency could be required to take action.
Ambrogi said the attorney general’s office could force the agency to scrap the proposed regulations and re-start the process, but the office’s staff are sometimes hesitant to make bodies undo all of their work.
Silverman agreed that that’s an unlikely outcome, but he said the stakeholder group might have to release more records like minutes and other meeting materials.
The attorney general can also take action to make sure the agency follows the law in the future, like making all the stakeholders attend open meeting training. But it’s not clear whether the group or its subcommittee will meet again, since the regulations have already been drafted.
The division could fine the agency up to $1,000 if it knowingly violated the law, though that would ultimately come out of taxpayers’ pockets.
Michaud sees his complaint as a “golden opportunity” for the agency to fix the problems he and others have had with the regulatory process so far.
“I’ve heard from so many people about the distrust that this has created with the state,” he said. “Now is the time when they can turn the course on this and rebuild public trust — admit they made a mistake.”
The public can still provide written comments on the proposed regulations until 5 p.m. on Jan. 30. More information on the regulations and how to comment is available on the agency’s website.
Email Grace Ferguson at email@example.com
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