Brookline Should Have Notified Public, But No OML Violation: AG

BROOKLINE, MA — Town officials should have put more information in public meeting notices, but did not violate Open Meeting Law, the state Attorney General’s office ruled in a seven page determination last month.

Town officials were happy with that ruling.

"The Attorney General’s decision validates our position that when the Town’s Select Board, School Committee and Ninth school Subcommittee of the Advisory Committee met in closed session to discuss certain matters pertaining to Pine Manor College and the siting of a new school, they did so lawfully," said Brookline Town Counsel Joslin Murphy in an email to Patch.

In the fall, Pine Manor College President Tom O’Reilly filed 10 complaints to the State Attorney General's office alleging that the Select Board, School Committee and the Ninth School Ad Hoc Subcommittee violated Open Meeting Law by going into executive session, which is closed to the public, without proper notice on Sept. 5, Sept. 12 and Sept. 15.

During those meetings, the board and committee members discussed the possibility of taking the private Brookline college's 7 acres of land by eminent domain for the ninth school at Pine Manor.

In the complaints, O’Reilly accused the board and committees of not properly describing the purpose and justification of executive session, and going into private session without proper notice and not keeping adequate records of the meetings or release them in a timely manner.

But town officials argued that ahead of the meetings all three public boards issued notices they would meet in executive session to discuss the acquisition or value of real property and to discuss anticipated litigation strategy related to building a ninth elementary school at the Baldwin site.

Before heading into executive session on Sept. 5, Town Administrator Mel Kleckner contacted O’Reilly to notify him "as a courtesy" that the boards would be talking about obtaining Pine Manor’s land via eminent domain, according to the AG.

Under Open Meeting Law, which has the aim of ensuring transparency in government, town boards can go into closed-door session for a few reasons, including to discuss strategy related to litigation, which if discussed in open meeting, would compromise the litigating position of the public body; and to consider the purchase, exchange, lease or value of real property if doing so during an open meeting would negatively impact the body’s negotiating position.

Still, O'Reilly's attorney argued that if he knew they were going to talk about eminent domain, the rest of the public should have known so that as many people in town could have a say on whether or not to really go down that eminent domain path, which is supposed to be a last resort.

Here, the AG's office agreed.

"We find that, while notice of certain executive session discussions was provided to Pine Manor College, notice should have also been provided to the general public," read the determination.

The AG’s office found that going into private session to discuss the potential use of Pine Manor’s land was a good enough reason to enter into executive session, as a public discussion could have harmed the town’s negotiating position. But, because Kleckner notified O’Reilly, the AG’s office found that publicly disclosing the fact that Brookline was discussing the acquisitions of Pine Manor land, would not have negatively impacted the purpose of executive session.

“The violation here stems from the bodies’ failure to provide comparable notice to the public so that members of the public could understand what the bodies would discuss in executive session,” according to the AG's office.

O'Riley did not immediately return request for comment. School Committee Chairman David Pollack was not immediately available for comment either.

Read the full determination here: OML 2018-73 Brookline Public Bodies by ReporterJenna on Scribd

Photo by Jenna Fisher/Patch