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April 6, 2018

Legal Update
Tristan P. Colangelo, Kate R. Cook

SJC: Circulation of documents that expressed the opinions of Board of Selectmen members to a quorum of the board constituted a deliberation in violation of the open meeting law

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Under the open meeting law, G.L. c. 30A, §§ 18 and 20 (a), public bodies are generally required to make their meetings, including deliberations, open to the public. An exemption to the definition of “deliberation,” effective in 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.”  See St. 2009, c. 28, § 18; G.L. c. 30A, § 18. The SJC considered for the first time the meaning of this exemption in Mary Alice Boelter v. Board of Selectmen of Wayland, SJC-12353.

In Boelter, the board conducted the 2012 performance review of the town administrator. Board members submitted individual evaluations to the chair, who then compiled the evaluations and drafted a composite. In advance of the public meeting where the town administrator’s evaluation was to occur, the chair e-mailed each board member an agenda packet that included the individual written evaluations, and the composite evaluation. This procedure was similar to the Attorney General’s guidance to public bodies regarding performance evaluations available on her website. The SJC concluded that the board’s conduct violated the open meeting law because the circulated documents expressed board members’ opinions to a quorum of the board—effectively a deliberation—to which the public did not have access.  The 2010 amendment, the SJC explained, “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.”

Three major take-aways from the Boelter decision:

  1. Materials distributed to a quorum cannot include members’ opinions.  The SJC rejected the board’s claim that the open meeting law permits board members to share their opinions with a quorum provided the opinions are not expressed in the body of an e-mail message but only in the attachments to e-mail messages.  “This reading would create a loophole that would render the open meeting law toothless.”  The SJC also rejected the argument that a composite evaluation (comprised of expressions of opinions) does not equate to a deliberation. In sum, public bodies cannot circulate documents that include board members’ opinions to a quorum of a public body in advance of a public meeting.
  2. Timing is important.  A central purpose of the open meeting law is to provide the public access to the decision-making process in real time.  The SJC made clear that public bodies that wish to distribute documents expressing board member opinions to a quorum of the board in advance of an open meeting may do so, but only if the documents are likewise made publicly available contemporaneously with circulation to the board.  The court provided examples of compliance such as posting on the town website or making paper copies available for inspection.
  3. Open meeting law challenges may merit review even when they appear moot. The SJC acknowledged that “[a]t first blush” the plaintiffs’ claims appear moot, since the evaluation of the town administrator is complete, and the board publicly released the documents at issue, the typical remedy for such a violation.  The SJC provided two reasons why the case was not moot.  First, the situation is “capable of repetition, yet evading review,” especially given that the Attorney General’s website endorsed the procedure the board followed.  Second, the SJC held this is a matter of substantial public importance, because ensuring broad public access to the decisions made by public officials and the way in which those decisions are reached are essential to a democratic form of government.

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