SJC Interpets Open Meeting Law Against Municipality: District Attorney v. School Committee Of Wayland, 455 Mass. 561 (2009)
The Supreme Judicial Court has rendered a key decision interpreting the provisions of the Massachusetts Open Meeting Law, M.G.L. c. 39, §§ 23A-24. In District Attorney for the Northern District v. School Committee of Wayland, the SJC overturned a Superior Court judge’s allowance of the School Committee of Wayland’s motion for summary judgment. The SJC transferred the District Attorney’s appeal of the Superior Court decision to the Commonwealth’s highest court on its own initiative, and ruled that the School Committee violated the Open Meeting Law when it deliberated about the professional competence of the Wayland Superintendent of Schools in two executive sessions. Furthermore, emails exchanged among Committee members before the first executive session were deliberations that also violated the Law.
In early June 2004, the Chairperson of the five-member School Committee emailed the other four Committee members, seeking input on the Superintendent’s annual performance evaluation. Two Committee members responded by email to the Chairperson only; a third member sent an email response to the entire Committee. Based on the comments he received from the Committee members, the Chairperson prepared a draft evaluation of the Superintendent. Then, during two Committee meetings in June 2004, the Committee voted to adjourn to executive session expressly “for purposes of matters relating to Collective Bargaining as set forth in [G.L. c. 39, § 23B].” When in executive session, however, the Committee discussed the Superintendent’s evaluation.
About a year later, a Wayland Town Crier reporter filed a complaint with the District Attorney, alleging that the process by which the School Committee evaluated the Superintendent, as well as the School Committee’s refusal to release the evaluation of the Superintendent, violated the Open Meeting Law. This litigation ensued.
In the Wayland decision, authored by Justice Spina, the SJC found that both of the School Committee’s executive sessions violated the Open Meeting Law. First, the stated reason for the executive sessions, collective bargaining, did not cover the Superintendent, a non-union employee. “Purpose 3” of M.G.L. c. 39, § 23B, one of the ten exceptions to the Open Meeting Law, allows a governmental body to convene a private executive session to, among other things, discuss collective bargaining strategy and strategize regarding negotiations with non-union personnel. The Court recognized that “Purpose 3” – had the Committee properly invoked it – would have permitted the Committee to adjourn to executive session during both meetings to discuss the Superintendent’s contract renewal or salary. But, because the Open Meeting Law required the Committee to give a precise statement of the reason for convening an executive session, and the Committee did not indicate in either of its open sessions that it would discuss the Superintendent’s contract renewal or salary, the Committee could not enjoy the protection afforded by “Purpose 3.” Moreover, there was no evidence that the School Committee discussed the Superintendent’s contract renewal or salary at either executive session. Instead, the Committee only discussed the Superintendent’s professional competence. As “Purpose 1” of M.G.L. c. 39, § 23B specifically prohibits discussion in executive session of the professional competence of an individual (as opposed to an individual’s reputation, character, physical condition or mental health), “Purpose 1” was also inapplicable.
The Court also held that the emails exchanged among the Committee members constituted deliberations and violated the letter and the spirit of the Open Meeting Law. Technically, the Open Meeting Law defines a “deliberation” as “a verbal exchange between a quorum of members of a governmental body attempting to arrive at a decision on any public business within its jurisdiction.” M.G.L. c. 39B, § 23A. Even so, pointing to the importance of broad public access to the decision-making process employed by elected officials, the SJC ruled that governmental bodies may not circumvent the Open Meeting Law by conducting deliberations via private messages, in any form. The SJC did note, however, that the Public Records Act, M.G.L. c. 66, § 10, excludes public employee performance evaluations from disclosure. The proper procedure, therefore, would have been for the Committee to discuss the Superintendent’s professional competence in an open meeting, and then move into executive session to discuss the draft evaluation.
This decision contains some important lessons for local governmental bodies. The formalities of the Open Meeting Law must be followed, including but not limited to a proper identification of the reasons for convening in executive session. Public bodies must also distinguish between negotiating non-union contracts and compensation (which can be done in executive session) and discussing non-union employees’ professional competence (which cannot be done in executive session without notice to the employee and an opportunity to be heard). Further, public bodies must be cautious when communicating via email, and should avoid any discussions of public business. Although the sanctions in this case were limited to an adverse declaratory judgment and an order to disclose the Committee’s emails to the public, governmental bodies communicating about public business via email do so at their peril.