The Menino administration of Boston is under fire regarding the deletion of public records in the form of emails reports the Boston Globe. Apparently this is a routine practice in that city. Several challengers to Menino in the upcoming election are calling for an investigation.
This mirrors somewhat the recent Landfill public records shredding scandal the Higgins administration is working hard to shake. Coincidently Menino was listed as an endorser of Higgins in past campaigns. Apparently they have something in common when it comes to keeping public records. It is amazing that these two mayors who have been in power for significant lengths of time seem to know little about public records laws and what they require. For example in Northampton when I inquired about executive session minutes after the Hilton Garden Inn Hotel lawsuits were settled I was informed by the Clerk of the Council at that time that former City Solicitor Janet Sheppard would not approve releasing the documents. Having no budget to file Freedom of Information Act requests I abstained from doing so.
In addition members of the Northampton City Council and School Committee as well as other boards respectively are not assigned city sponsored email accounts. If the current City Council Clerk utilized a personal email account rather than her assigned city account the public records requests as put forth by the Gazette concerning the executive sessions of the Landfill settlements would likely have gone nowhere. In fact it would seem ludicrous for the Council Clerk to NOT use a city email account, yet dozens of city officials do just that. This perhaps means that thousands of email transmissions related to city business during the Higgins era are not recorded and are not available as public records. This weakens significantly government transparency and accountability yet would be easy to remedy.
Moreover, regarding the Open Meeting Law, the recent City Council-BPW joint conference committee meeting during which the city sponsored Landfill ballot question was deliberated utilized teleconferencing in order to include member M. J. Adams. She was not present and participated via speaker phone. It appears however that this may not be permitted per the state's open meeting law. The Open Meeting Law Guidebook reads in part,
"Telephone meetings"–Discussion by telephone among members of a governmental body on an issue of public business within the jurisdiction of the body–are a violation of the Law.
In addition a Redoubt review of Board of Health meeting minutes also found somewhat weak adherence to the laws regarding executive sessions. (See below including PROCEDURES.) There should be a roll call vote recorded with a description of the purpose of the executive session included in the minutes. The minutes should also state whether or not the BOH will be reconvening at the conclusion of the executive session.
Issues related to Best Practices have been raised in the city for years now, yet not enough has been done to bring about the type of change we can believe in. It is clear that volunteer board members in Northampton are not experts on the various State Public Records/Meeting Laws which are intended to guide them in their deliberations. Failure to abide by these laws does not indicate ill intent on the part of board members however, at least not initially. It does indicate how low a priority Mayor Higgins places on educating officials as to the requirements of state laws, laws which may not be perfect but are nonetheless important for the sake of democracy. If public records are not well kept or are not kept at all how is the electorate to know who is doing what and for what purposes?
The March 2009 BOH minutes as submitted by then Director Xanthi Scrimgeour read in part under Section 5. New Business:
Executive Session–The Board went into executive session to discuss Director's personnel concerns. Meeting adjourned at 7:35 p.m.
The April BOH minutes as submitted by Acting Secretary Madeline L. Heon read in part:
Meeting adjourned at 6:40 p.m. and went into executive session.
According to the Open Meeting Law Guidebook in its entirety:
EXECUTIVE SESSIONS
DEFINITIONS
An executive session is defined in the Open Meeting Law as "any meeting of a governmental body which is closed to certain persons for deliberation on certain matters." The Law defines nine specific purposes for which an executive session may be held, often referred to as "exemptions" from the open meeting requirement, and emphasizes that this list of nine is an exclusive one.PURPOSES
The nine purposes or exemptions for which a governmental body may vote to hold an executive session are:
- (1) To discuss the "reputation, character, physical condition or mental health rather than the professional competence" of a particular individual.This purpose is designed to protect the rights and reputation of individuals. Some of the concepts included here — physical condition, mental health — are clear; others are less so. It is difficult, for example, to draw any bright lines between "professional competence" on the one hand, and "reputation" or "character" on the other. Nevertheless, it appears that at least in the case where a governmental body is considering applicants for a professional job position, the discussion would center on "professional competence" and could not be conducted in an executive session on the basis of this exception. (Endnote 16)
The Law affords certain rights, discussed in exemption (3) below, to the individual who is the subject of the discussion at an executive session called for the purpose described here.
- (2) To consider the discipline or dismissal of, or to hear complaints or charges brought against, a public officer, employee, staff member, or individual.
Again the purpose of this exception is to protect individual rights, as well as to promote the public interest in efficient personnel management. While the proposed imposition of disciplinary sanctions by a governmental body on an individual calls forth this section, the section does not apply if, for example, the governmental body is laying off a large number of employees because of budgetary constraints. (Endnote 17)
As is true of the first purpose, an executive session called for this second purpose triggers certain rights on the part of an individual who is the subject of the discussion. See exemption (3) below. The individual's rights to have his or her dismissal considered at an open meeting takes precedence over the general right of the governmental body to go into executive session to consider collective bargaining matters. (Endnote 18)
The subject of a complaint being discussed or considered in executive session has the right to receive notice of and be present during executive session, however the complainant has no such right.19 In addition, the subject of the complaint is permitted to have counsel present “for the purpose of advising said individual and not for the purpose of active participation” in said executive session. G.L. c. 39, § 23B (2)(b).
- (3) To discuss strategy with respect to collective bargaining or litigation, if an open meeting may have a detrimental effect on the bargaining or litigating position of the governmental body; to conduct strategy sessions in preparation for negotiations with non-union personnel; and to conduct collective bargaining sessions or contract negotiations with non-union personnel. (Endnote 20)
Collective bargaining strategy:
Discussions with respect to collective bargaining strategy include discussions of proposals for wage and benefit packages or working conditions for union employees. The governmental body must show — and, if challenged, carries the burden of proving — that an open meeting might have a detrimental effect on its bargaining position to justify an executive session on the basis of this exemption. The showing that must be made is that the open discussion might have an adverse impact on the collective bargaining process; the body is not required to demonstrate or specify a definite harm that would have arisen.
Note: Since the governmental body must determine that an open meeting may have a detrimental impact on its bargaining position in order to convene an executive session under this purpose, it is a good practice to state on the record that a possible adverse impact might occur when the executive session is proposed and voted on.
Litigation strategy:
Discussions concerning strategy with respect to ongoing litigation obviously fits within this purpose, but again only if an open meeting may have a detrimental effect on the litigating position of the governmental body. Discussions relating to proposed litigation are not covered by this exemption unless that litigation is clearly and imminently threatened. (Endnote 21) That a person is represented by counsel and supports a position adverse to the governmental body's does not mean litigation is imminently threatened. Nor does the fact that a newspaper reports a party has threatened to sue mean imminent litigation.
Note: A governmental body's discussions with town counsel do not automatically fall under this or any other exception.
Collective bargaining sessions:
These include not only the bargaining sessions but also include grievance hearings that are called for under a negotiated collective bargaining agreement. (Endnote 22)
Contract negotiations with non-union personnel; strategy sessions to prepare for such negotiations:
The 1985 and 1988 amendments to the Open Meeting Law make clear that a governmental body of a municipality or district may enter into executive session to conduct strategy sessions in preparation for, and to conduct, contract negotiations with non-union personnel. See note Endnote 15.
- (4) To discuss the deployment of security personnel or devices.
Self explanatory.
- (5) To investigate charges of criminal misconduct or to discuss the filing of criminal complaints.
On the surface this exemption seems easily defined, but in fact the distinction between this exemption and the second exemption described above (to consider the discipline or dismissal of or charges brought against an individual) is not clear. In a close case it is preferable for a governmental body to convene the executive session under the second exemption in order to better protect the rights of the individual involved.
- (6) To consider the purchase, exchange, lease or value of real property, if an open discussion may have a detrimental effect on the negotiating position of the governmental body with a person, firm, or corporation.
Under this purpose, as with the collective bargaining and litigation purpose, the governmental body must show that an open meeting might have an adverse impact on the body's negotiating position with a third party. (Endnote 23) See exemption (3) above. Thus, once the purchase, exchange, lease or other transaction is completed this exemption may no longer be used.
- (7) To comply with the provisions of any general or special law or federal grant-in-aid requirements.
There may be provisions in certain statutes which require that a governmental body consider a particular issue in a closed session. Additionally, as the following section discusses, where exemption (8) does not apply, exemption (7) may nevertheless apply to the initial stage of a hiring process.
- (8) To consider and interview applicants for employment by a preliminary screening committee or a subcommittee appointed by a governmental body if an open meeting will have a detrimental effect in obtaining qualified applicants; provided, however, that this clause shall not apply to any meeting, including meetings of a preliminary screening committee or a subcommittee appointed by a governmental body, to consider and interview applicants who have passed a prior preliminary screening.
This amendment applies only to municipal and district governments. It permits a hiring subcommittee of a governmental body or a preliminary screening committee to conduct the initial screening process in executive session if an open meeting will have a detrimental effect on the governmental body's ability to attract qualified applicants. The amendment does not apply to any stage in the hiring process after the screening committee or subcommittee votes to recommend a candidate or candidates to its parent body. (Endnote 24) Note: The new exemption (8) does not apply to screening by a governmental body itself. It applies only to a special committee or subcommittee. A governmental body which itself engages in a hiring process may nevertheless be able to convene in executive session pursuant to the "other laws" exemption discussed above in exemption (7).
Example: A school committee is seeking to fill an opening for the position of superintendent of schools. It has received 100 applications in response to its advertisements; some of those responding expressly stated that they wished their applications to remain confidential. G.L. c. 214, §1B, a statute wholly independent and separate from the Open Meeting Law, protects an individual's right to privacy against unreasonable, substantial or serious invasion. It may constitute an unreasonable or serious invasion of these applicants' statutory right to privacy for the school committee to identify them by name and discuss their applications in an open meeting at the initial screening stages; if so, the discussion would be required to be held in an executive session. (Note, however, that the school committee would bear the burden of proving that the statutory privacy right of the applicants warranted the executive session.) As the committee's selection process continues and the list of applicants is narrowed, however, the privacy rights of the individuals still under consideration recede in comparison to the public's right to know who the school committee is seriously reviewing for the post. At least by the time the school committee (or a screening subcommittee of the school committee) has selected a list of semi-finalists, if not before, it is unlikely that the rights of privacy on the part of such persons would require or authorize an executive session to discuss them. (Endnote 25)The semi-finalist applicant who asserts a right to privacy under G.L. c.214, §1B must make a particularized showing that releasing his or her name to the public or conducting the interview in public would unreasonably, substantially, or seriously interfere with the applicant's right to privacy. Further, where a governmental body accedes to the semi-finalist's request for privacy, it will be incumbent upon the governmental body, should its actions later be challenged, to make an adequate showing that an open interview or public disclosure of the applicant's name would unreasonably, substantially, or seriously interfere with the applicant's privacy rights.
Note: Under a ruling of the Supervisor of Public Records, SPR 82-219, the names of the initial applicants for the superintendent's position would not appear to be a public record, and would not be required to be included in the minutes of any meeting, whether open or closed, in which the applicants were discussed. However, in SPR 84-66 the Supervisor of Public Records ruled that the list of finalists' names are public records. Although the Supervisor's opinion addressed only the required release of finalists' names, the reasoning of the opinion suggests that the names of semi-finalists would also be considered a public record subject to release to the public upon request.
- (9) To meet or confer with a mediator, as defined in section twenty-three C of chapter two hundred and thirty-three, with respect to any litigation or decision on any public business within its jurisdiction involving another party, group or body, provided that: (a) any decision to participate in mediation shall be made in open meeting session and the parties, issues involved and purpose of the mediation shall be disclosed; and (b) no action shall be taken by any governmental body with respect to those issues which are the subject of the mediation without deliberation and approval for such action at an open meeting after such notice as may be required in this section.
RIGHTS OF INDIVIDUALS
When a governmental body holds an executive session to discuss an individual's reputation, character, physical condition or mental health (exemption (1)), or to consider disciplinary sanctions against an individual (exemption (2)), the Open Meeting Law affords the individual concerned the following rights:
- to be present at the executive session during discussions or considerations involving the individual;
- to have counsel, or another representative of his or her own choosing, attend the session with the individual, to advise the individual, but not to participate actively in the executive session;
- to speak in his or her behalf;
- to receive written notice at least forty-eight hours in advance of the proposed executive session;
- to request that the meeting be open rather than closed.
Note: There may be situations where a governmental body is authorized, under a separate statute, to insist that the meeting be closed. See “Coordination With Other Laws” below.
PROCEDURES
- Notice: No executive session may be held unless and until an open meeting of the governmental body, for which proper notice was given, has first convened. Written notice of a proposed executive session that will involve the discussion or consideration of an individual (see exemption (3) above) must be given to that individual at least forty-eight hours in advance.
- Convening: Once an open meeting has been duly convened, to then convene an executive session a majority of the members of the governmental body must vote to go into the session; the vote of each member must be recorded on a roll call vote and entered in the minutes of the meeting. (Endnote 26) In addition, the presiding officer must cite for the record the purpose (or purposes if there are more than one) of the executive session, and whether the governmental body will reconvene in an open meeting after the executive session is over.
- Minutes: Minutes or an equivalent record of every executive session must be kept. In terms of content, such minutes mirror those required for open meetings: they must set forth the date, time, place, members present or absent, and the action taken. (See “Minutes of Meetings” above for a discussion of these requirements.) As with open session minutes, written minutes (preferably typed) are required. Unlike the case with open sessions, however, members of the public have no right to tape record or videotape executive sessions. In addition, minutes of executive sessions must include a record of every vote taken. All such votes must be recorded roll call votes.
- Release of Minutes: The minutes or record of every executive session become public records from the moment they are created; however, such minutes "may remain secret as long as publication may defeat the lawful purposes of the executive session, but no longer" (emphasis supplied). G.L. c. 39, §23B, ¶7. Generally, the decision when to release the minutes of an executive session is up to the members of the governmental body. Each body should, however, adopt a policy which requires that unreleased executive session minutes will be reviewed on a regular basis. Such a policy will help ensure that closed session minutes are kept secret only as long as needed and as authorized under the Law.
Endnotes:
15-See Shannon v. Boston City Council, No. 87-5397 (Suffolk Superior Ct. February 28, 1989) (memorandum and order granting summary judgment).
16-It is possible that another of the Law's exemptions would apply in certain cases. See Sections (7) and (8).
17-See Doherty v. School Committee of Boston, 386 Mass. 643 (1982).
18-See Bartell v. Wellesley Housing Authority, 28 Mass. App. Ct. 306 (1991).
19-See Wisniewski, et al., v. Board of Selectmen of the Town of West Brookfield, (Mass. Super. 2001).
20-The clause which permits executive session discussion of strategy regarding contract negotiations with non-union personnel was added by an amendment to the law passed in 1988; the clause permitting executive session negotiations with non-union personnel was enacted in 1985.
21-See Perryman v. School Committee of Boston, 17 Mass. App. Ct. 346, 352 (1983).
22-See Ghiglione v. School Committee of Southbridge, 376 Mass. 70 (1978).
23-Allen v. Bd. of Selectmen of Belmont, 58 Mass. App. Ct. 715, 719-720 (2003), discussing inapplicability of exemption if a party with whom the governmental body is negotiating is present at the executive session.
24-Gerstein v. Superintendent Search Screening Committee, 405 Mass. 465, 472 (1989).
25-See Attorney General v. School Committee of Northampton, 375 Mass. 127 (1978).
26-See District Attorney for the Northwestern District v. Board of Selectmen of Sunderland, 11 Mass. App. Ct. 663, 665-666 (a single vote to enter executive session, with two abstentions, could not constitute a quorum of a majority of a three-member board), further appellate review denied, 383 Mass. 892 (1981).
