The Mashpee selectmen met in executive session on Monday, December 2, to discuss pending litigation regarding a controversial cell tower project despite a request by the chairman of the planning board that her board be included in any such deliberations.

Along with the Town of Mashpee, the planning board and each of its members are named as defendants in a federal lawsuit brought by Blue Sky Towers II, LLC.

Blue Sky alleges that the town of violated the Telecommunications Act of 1996 when the Mashpee planning board in October denied the company’s application for a 150-foot cell tower at the Fire Station 2 on Red Brook Road.

During the closed session, the selectmen determined that a “prompt disposition/settlement of this action is fiscally prudent and would best serve the interests of public safety and convenience of the Town and its residents,” according to a memo sent to the planning board by Town Manager Rodney Collins.

“The board [of selectmen] has directed town counsel to contact the plaintiff’s counsel forthwith to discuss terms for the prompt disposition/settlement,” stated the memo that the chairman of the planning board, Mary Waygan, read into the record at the meeting of that board on Wednesday, December 4.

During the public comment section of the selectmen’s meeting, Ms. Waygan stated that the planning board has, “extensive knowledge-base regarding this matter and it is to the advantage of the town to include the planning board in these discussions.”

At that meeting, however, the selectmen voted 4-1 to enter executive session without including the planning board. Selectman David Weeden, the lone ‘no’ vote, asked that Ms. Waygan be allowed to sit in on the closed session.

Ms. Waygan later stated that she would not have gone into the closed session without the other members of the planning board.

The chairman of the selectmen, Andrew R. Gottlieb, stated that, “it is not uncommon for us, and is in fact rather typical to discuss litigation pending before the town in executive session and then its a collective board decision as to how to engage the other named in litigation.”

Ms. Waygan’s request before the selectmen sparked internal tensions at the planning board later in the week when board member John Phelan accused the chairman of overstepping her bounds.

“At the selectmen’s meeting you represented the entire planning board,” Mr. Phelan said. “That is not allowed, we’re a consensus-driven board.” He stated he did not agree that the planning board should have been included in the executive session.

Ms. Waygan argued that the selectmen should have given the planning board “fair notice” that the item concerning litigation against planning board was going to be on their agenda and that “the reason boards have chairs is so that things can happen in between meetings.”

Mr. Phelan replied that Ms. Waygan should have called an emergency meeting, to which she replied that she did not have time between when the selectmen’s agenda was posted on Wednesday and their meeting on Monday, especially since she was out of town for the Thanksgiving holiday.

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