On April 5, 2018, in an important case of first impression, the Supreme Judicial Court found that a Town’s Board of Selectmen had violated the Massachusetts Open Meeting Law in the procedure used to conduct the town administrator’s evaluation. In doing so, the SJC provided important guidance to state, county, and municipal boards and committees for complying with the OML not only when evaluating key employees, but also in deliberating on other issues as well.

The Decision

The SJC held that the procedure the Wayland Board of Selectmen followed in conducting the town administrator’s evaluation violated the open meeting law. In advance of the open meeting where the town administrator’s evaluation was to take place, the Board’s chair had circulated to all Board members both individual board members’ written evaluations and a composite written evaluation of the town administrator’s performance. The board made public all written evaluations only after the open meeting.

The SJC considered, for the first time, the meaning of the new OML’s exemption to the definition of “deliberation.” That definition, which became effective in July, 2010, permits members of public bodies to distribute to each other “reports or documents that may be discussed at a meeting, provided that no opinion of a member is expressed.” The SJC concluded that this exemption was ”enacted to foster administrative efficiency, but only where such efficiency does not come at the expense of the open meeting law’s overarching purpose, transparency in governmental decision-making.” As the individual and composite evaluations contained opinions of board members, “the circulation of such documents among a quorum prior to the open meeting does not fall within the exemption, and thus constituted a deliberation to which the public did not have access, in violation of the open meeting law.”

The SJC observed that the Legislature “amended the open meeting law expressly to allow public bodies to distribute some materials internally in advance of open meetings without triggering the definition of ‘deliberation’; this change seems to have been a response to the practical realities of local governmental service.” By permitting officials to review certain administrative materials and reports in advance of an open meeting, “the Legislature took steps to ensure that the work of those officials at the meetings could be focused and efficient.”

At the same time, the SJC concluded that “the Legislature specified that no opinion of a board member could be expressed in any documents circulated to a quorum prior to an open meeting… However inefficient this may prove for local bodies in certain circumstances, this is the balance that the Legislature has struck.”

Action by Massachusetts Attorney General

The OML authorizes the Massachusetts Attorney General to interpret the OML, and authorizes complaints of OML violations to be resolved under one of two procedural avenues, either an administrative complaint to the Attorney General or registered-voter litigation in the Superior Court. In the Boelter matter, the complainants pursued both avenues.

In response to the administrative complaint the Attorney General found that the board did not violate the open meeting law because “the [c]hair performed an administrative task exempt from the law’s definition of deliberation.” However, the SJC concluded that the “Attorney General’s characterization is not supported by the plain meaning of the statute, and therefore is not accorded … deference.” Unlike the lower court, however, the SJC did not “strike” the Attorney General’s determination, but rather vacated that aspect of the lower court decision.

Instead, the SJC noted that, “The Attorney General has represented that if we affirm the judge’s decision, she will amend her guidance and adjust her interpretation of the open meeting law when resolving complaints.” In light of the SJC’s opinion, the Attorney General has now adjusted her interpretation of the open meeting law on this issue. In response to an FAQ (“May the individual evaluations of an employee be aggregated into a comprehensive evaluation?”), the Attorney General now advises:

Members of a public body may create individual evaluations and submit them for compilation into a master evaluation to be discussed at an open meeting. To avoid improper deliberation, members must submit their evaluations to someone who is not a member of the public body—for example, an administrative assistant or executive secretary. The aggregated evaluation may then be distributed to the members one of two ways: (i) at a properly noticed open meeting, or (ii) via public posting to a municipal website in a manner that is also available to members of the public, as long as paper copies are also made available in the city or town clerk’s office. See Boelter v. Board of Selectmen of Wayland, SJC-12353, slip op. at 19-20 (Mass. April 5, 2018). Even if the public body posts the aggregated evaluation to a website, members may not discuss it outside of a properly noticed public meeting.

Practice Tips

In Boelter, the result was adverse to the Board and the SJC strictly interpreted the exemption in the OML. Even so, the SJC provided guidance of its own to public bodies who seek to be both transparent and efficient in serving the public consistent with the OML:

  • “It is not ‘deliberation’ when the materials distributed to the quorum fall into one of two categories: first, purely procedural or administrative materials (such as agendas) and, second, reports or documents to be discussed at a later meeting, so long as such materials do not express the opinion of a board member.” (Page 13).
  • The SJC observed that in the Boelter case, “The result here would have been different if the board had made the individual and composite evaluations publicly available before the open meeting. For example, the board could have posted the evaluations on its Web site and made paper copies available for inspection at or about the time that the evaluations were circulated among a quorum of board members. Ordinarily, the board is required only to make the minutes of open meetings, along with ‘the notes, recordings or other materials used in the preparation of such minutes and all documents and exhibits used at the session,’ available to the public, upon request, within ten days after an open meeting has taken place. G. L. c. 30A, § 22 (c), (e). Nothing in the open meeting law or the public records statute, however, precludes the board from prior disclosure, at least in these circumstances.” (Pages 19-20, emphasis added).
  • The SJC stated, “If board members wish to circulate documents containing board member opinions among a quorum in advance of an open meeting, as here, prior and relatively contemporaneous public disclosure of those documents, where permissible, is necessary in order to comply with the open meeting law and to advance the statute’s over-all goal of promoting transparency in governmental decision-making.” (Page 20, emphasis added).

In any event, the SJC also observed that, “the typical remedy for such a violation is public release of the documents at issue, which the board effectuated after the asserted violation.” (Page 9, footnote omitted, emphasis added, citation omitted).