LETTER: AG's Office Finds Finance Board Violated Open Meeting Law

Here is the text from the four-page Sept. 20 letter sent from Massachusetts Attorney General Martha Coakley's Office to Finance and Advisory Board Chairman Russell Wilson, former Finance and Advisory Board Chairman John Carino and Spring Street resident Kathleen Sullivan, who filed the complaint with the Attorney General's office in November 2011:

Russell Wilson, Chair

Stoneham Finance and Advisory Board

35 Central St. Stoneham, MA 02180

cc:

Kathleen Sullivan

John Carino

RE: Open Meeting Law Complaint Dear Mr. Wilson:

Dear Mr. Wilson:

This office received a complaint from Kathleen Sullivan, dated November 28, 2011, alleging that the Town of Stoneham Finance and Advisory Board (the "Board") violated the Open Meeting Law, G.L. c. 30A, §§ 18-25. The complaint was originally filed with the Board on or about November 8, 2011, and the Board responded to the original complaint by letter dated November 25, 2011. In her complaint, Ms. Sullivan alleges that the Board entered executive session to discuss "public safety" and excluded the Town Administrator and a Selectman from that meeting. Furthermore, the complainant alleges that "[n]o minutes were taken or recorded" for this meeting.

We reviewed the November 8, 2011 complaint filed with the Board; the Board's November 25, 2011 response; the November 28, 2011 complaint filed with our office and documents attached to that complaint, including the notice for the Board's November 7, 2011 meeting and three news articles regarding the complaint; the open and executive session minutes for the Board's November 7, 2011 meeting; a video recording of the open session portion of the November 7, 2011 meeting; and we spoke by telephone with former Board Chair John Carino on July 23, 2012.

Following our review, we find that the Board did take minutes for the November 7, 2011 executive session meeting, and could exercise its discretion in deciding who was permitted to attend that closed door meeting. However, we find that the Board's November 7, 2011 discussion was not appropriate for executive session and did violate the Open Meeting Law.

FACTS

Because our review of the material listed above included executive session minutes that remain confidential, we are unable to provide a full recitation of the facts. The publicly available facts are as follows.

On October 26, 2011, the Stoneham Independent reported that, during Town Meeting, Town Moderator Larry Means prohibited attendees from moving about the Town Hall auditorium while others were speaking.' At one point, according to the article, the Town Moderator "threatened to have police escort [the complainant] out of the building after she left her seat to ask Town Counsel William Solomon a question."

On November 3, 2011, the Board posted an Agenda and Notice for a meeting on November 7, 2011. The notice was created by former Board Chair John Carino, and listed four topics for discussion: "1. FY13 Budget; 2. Town Moderator; 3. Town Administrator (Information Requests); 4. Possible Executive Session." At the time the notice was created, Carino anticipated that one of the other Board members would speak about a "public safety" issue during the executive session, and that the Town Moderator would attend and participate in that executive session. Carino did not know exactly what the discussion would entail, however.

According to the minutes of the November 7, 2011 open session meeting, at the conclusion of the meeting Board member Russ Wilson "made a motion to close the meeting and go directly into executive session without returning to the original meeting." The video recording of the open session meeting reflects that additional detail about the purpose for the executive session was given. The actual motion made was, "I move that we go into executive session for the purposes of discussing public safety — safety issues." 2The motion was seconded and passed unanimously. No roll call vote was taken. 3

During the executive session, the Board discussed the Town Moderator's authority and discretion to maintain order during Town Meeting. The Board has no direct authority over Town Meeting or over public safety issues generally, but may make recommendations to those with such authority. During the executive session, the Board decided to report its findings on the issue to the Board of Selectmen. No findings were ever reported to the Board, however, as the complainant filed the present Open Meeting Law complaint the day after the meeting. The minutes of the Board's November 7, 2011 meeting have not been released.

DISCUSSION

As an initial matter, we address the complainant's allegation that "[n]o minutes were taken or recorded" for the Board's November 7, 2011 executive session meeting. The Board did take, and provided our office with, minutes for both the open and executive session portions of its November 7, 2011 meeting. We therefore find no basis for the complainant's allegation that there were no minutes.

We next address the allegation that the executive session held on November 7, 2011 was improper. The Open Meeting Law requires that all meetings of a public body be conducted in an open session, with some exceptions. G.L. c. 30A, §§ 20(a), 21(a). Public bodies may enter a closed, executive session for any of ten purposes enumerated in the Open Meeting Law, provided that the chair of the public body first announces in open session the purpose for the executive session, "stating all subjects that may be revealed without compromising the purpose for which the executive session was called." G.L. c. 30A, § 21(b)(3).

One permissible reason for executive session is Purpose 4, "[t]o discuss the deployment of security personnel or devices, or strategies with respect thereto." G.L. c. 30A, § 21(a)(4). Although no specific section of the Open Meeting Law was cited in the meeting notice or in the Board's verbal statement of the reason for its November 7, 2011 executive session, the Board's minutes suggest that by "public safety" the Board meant to invoke executive session Purpose 4. We find, however, that the Board's discussion was not appropriate for executive session under Purpose 4 or any other executive session purpose.

Executive session Purpose 4 enables a public body to keep security measures confidential when it believes that publicly disclosing security plans would decrease their effectiveness. Here, the discussion did not involve any such plans, but rather was a discussion of the Town Moderator's authority and discretion to maintain order during Town Meeting. While that authority may include the ability to seek assistance from police if an individual must be removed from the premises, the Board's acknowledgement of this authority did not constitute discussion of "the deployment of security personnel or devices, or strategies with respect thereto." See G.L. c. 30A, § 21(a)(4). Furthermore, we note that the Board has no authority to direct the conduct of Town Meeting and, according to former Board Chair Carino, public safety issues generally are not matters within the Board's jurisdiction. Its discussion of the Town Manager's ability to maintain order during Town Meeting, therefore, was not appropriate for discussion behind closed doors.

The complainant also alleges that the Board improperly excluded the Town Administrator and a Selectman from the November 7, 2011 executive session. Unlike open session meetings, which must be open and accessible to all members of the public, public bodies generally have discretion to determine who may attend and participate in its closed door sessions. 4We therefore find that the Board did not violate the Open Meeting Law by not including these individuals in the meeting. As noted earlier, however, the Board should have held this discussion in open session, where all interested parties would have been able to observe its deliberations.

Finally, although not raised by the complainant, we note that the notice for the November 7, 2011 meeting failed to list the reason for the anticipated executive session with sufficient specificity. Public bodies must list anticipated discussion topics in their meeting notices with "sufficient specificity to reasonably advise the public of the issues to be discussed at the meeting." 940 CMR 29.03(1)(b). We generally consider a topic to include sufficient specificity when a reasonable member of the public could read the topic and understand the anticipated nature of the public body's discussion. See OML 2011-44. The agenda item in the notice for the Board's November 7, 2011 meeting listing the anticipated executive session fell short of this standard. Notices for executive sessions must state "all subjects that may be revealed without compromising the purpose for which the executive session" was being called. G.L. c. 30A, § 21(b)(3); $ee District Attorney for Northern Dist. v. School Committee of Wayland, 455 Mass. 561, 567 (Mass. 2009) ("[a] precise statement of the reason for convening in executive session is necessary under the open meeting law because that is the only notification given to the public that the school committee would conduct business in private, and the only way the public would know if the reason for doing so was proper or improper"). At the very least, therefore, the notice should have cited the executive session purpose pursuant to which the Board anticipated holding a closed door discussion.

CONCLUSION

For the reasons stated above, we find that the Board did take minutes for the November 7, 2011 executive session meeting, and could exercise its discretion in deciding who was permitted to attend that closed door meeting. However, we find that the Board's November 7, 2011 discussion was not appropriate for executive session and did violate the Open Meeting Law. We order immediate and future compliance with the Open Meeting Law, and caution the Board that a determination by our office of similar violations in the future may be considered evidence of intent to violate the Open Meeting Law. In addition, we order the Board to review the minutes from the November 7, 2011 executive session and release all portions that were not appropriate for discussion under executive session Purpose 4, unless the attorney-client privilege or an exemption to the Public Records Law applies. This review must occur within thirty (30) days of receiving this determination.

We now consider the complaint addressed by this determination to be resolved. This determination does not address any other complaints which may be pending with our office or the Board. Please feel free to contact the Division at (617) 963-2540 if you have any questions or believe any facts in this letter to be inaccurate.

Sincerely,

Amy L. Nable

Assistant Attorney General

Director, Division of Open Government

This determination was issued pursuant to G.L. c. 30A, § 23(c). A public body or any member of a body aggrieved by this order may obtain judicial review through an action filed in Superior Court pursuant to G.L. c. 30A, § 23(d). The complaint must be filed in Superior Court within twenty-one days of receipt of this order.

Footnotes:

1 Patrick Blais, Means Continues to Set New Tone for Town Meeting, Stoneham Independent, Oct. 26, 2011.

2 We remind the Board that minutes should contain enough detail and accuracy so that a member of the public who did not attend the meeting could read the minutes and have a clear understanding of what occuned. OML 2011-55.

3 We note for the Board's future reference that votes to enter into executive session must be recorded by roll call and entered into the minutes as such. G.L. c. 30A, § 21(b)(2).

4 An exception is when the executive session is held pursuant to Purpose 1, in which case the individual to be discussed in such executive session and his or her counsel or other representative must be allowed to attend. G.L. c. 30A, § 21(a)(1)