THE COMMONWEALTH OF MASSACHUSETTS OFFICE OF THE ATTORNEY GENERAL ONE ASHBURTON PLACE BOSTON, MASSACHUSETTS 02108 Awprea Joy CampBELt (617) 727-2200 ArrrorNey GENERAL www.mass.gov/ago February 6, 2023 OML 2023 ~ 16 VIA EMAIL ONLY Joan L. Stein, Esq. Stoneman, Chandler & Miller, LLP JStein@SCMLLP.COM RE: Open Meeting Law Complaint Dear Attorney Stein: ‘This office received a complaint from Kathleen Sheehan on August 1, 2022," alleging that the Easton School Committee (the “Committee”) violated the Open Meeting Law, G.L. c. 30A, §§ 18-25. The complaint was originally filed with the Committee on or about May 3, and you responded on behalf of the Committee by letter dated May 23. We understand the complaint to allege that the Committee 1) failed to timely approve executive session meeting minutes; 2) failed to periodically review executive session minutes to determine if they must be released to the public; 3) failed to timely review executive session minutes for release in response to an April 8 request for such minutes; 4) improperly withheld “certain executive session meeting, minutes”; 5) created insufficient executive session minutes; and 6) discussed a matter not appropriate for executive session. Following our review, we find that the Committee violated the Open Meeting Law in many of the ways alleged; however, we decline to review the allegations that the Committee did not timely approve executive session minutes and that it improperly withheld executive session minutes. In reaching this determination, we reviewed the Open Meeting Law complaint, the Committee’s response, the request for further review.” executive session minutes provided to our 1 All dates are in 2022, unless otherwise stated. 2 The request for further review raises additional allegations which we decline to review as they were not raised in a formal Open Meeting Law complaint filed with the Committee, See G.L. c. 30A, § 23(b); 940 CMR 29.05(1); OML 2019-76, OML 2012-92. Additionally, the allegations raised in the request for further review lack the required level of specificity as discussed further below.office by the Complainant, and notices and minutes available on the Faston Public Schools” website. Timely approval of executive session minutes The Open Meeting Law requires that public bodies create and approve meeting minutes, whether for open or executive session, in a timely manner. G.L. c. 30A, § 22(¢). “Timely manner” means “within the next three public body meetings or within 30 days, whichever is later, unless the public body can show good cause for further delay.” 940 CMR 29.11; see OML_ 2018-48. Whenever possible, we recommend that minutes of a meeting be approved at the next meeting. See OML 2018-67; OME 2017-133." Approval of executive session minutes is a separate and unrelated obligation from the requirement that executive session minutes be periodically reviewed to determine whether they should be released to the public. See OML 2019-115. This initial approval of executive session minutes is to approve the minutes as an accurate record of what occurred at a particular executive session and does not mean that the minutes are approved for release to the public. See OML 2022-146. ‘The complaint alleges that, in general, the Committee failed to timely approve executive session minutes. Complainants must allege violations with a degree of specificity as our office will not conduct broad audits of publie bodies based on generalized allegations. See OML. 2021- 133; OML Declination 4-22-15 (Natick Economic Development Committee): OML Declination 3-20-12 (Wilmington Board of Assessors). Additionally, complaints alleging violations of the Open Meeting Law must be filed with the public body within 30 days of the alleged violation. GL. c. 30A, § 23(b). When an alleged violation occurs during an open meeting, the alleged violation is reasonably discoverable at the time it occurs. See OME. 2014-85; OML 2012-52. Here, although the complaint provides an alleged violation date of calendar years 2020 and 2021, it does not identify any particular executive session minutes alleged to have been untimely approved. Additionally, the date on which each set of executive session minutes was approved was ascertainable by viewing the Committee’s meeting notices and minutes which specify which executive session minutes were approved at a given meeting. Therefore, the complaint is untimely with respect to any minutes approved more than 30 days prior to the complaint being filed with the Committee, which appears to be all of the minutes at issue in the complaint. As such, we decline to review the allegation that the Committee failed to timely approve executive session minutes. Periodic review of executive session minutes Executive session minutes may be withheld from disclosure to the public “as long as publication may defeat the lawful purposes of the executive session, but no longer.” G.L. ¢. 30A, § 22(f). When the purpose for a valid executive session has been served, the minutes and any documents or exhibits used at the session must be disclosed unless the attorney-client privilege or an exemption to the public records law applies to withhold them, in whole or in part, from disclosure. Id. Public bodies have an obligation to review the minutes of executive sessions at » Open Meeting Law determinations may be found at the Attorney General's website, www mass,gov/ago/openmeeting,reasonable intervals to determine if continued non-disclosure of minutes is warranted, and to announce that determination at the next meeting following its review. G.L. ¢. 30A, § 22(g)(1). Although the law does not define “reasonable interval,” we have concluded that, where a public body waited years to review its executive session minutes, it violated the Open Meeting Law. See OML 2018-161; OML 2015-164. The complaint alleges that, in general, the Committee failed to periodically review executive session minutes to determine if they must be released to the public.’ The Committee acknowledges that it failed to periodically review its executive session minutes to determine whether they needed to be released to the public. Therefore, we find that the Committee violated the Open Meeting Law. The Committee has committed to reviewing executive session minutes to determine if they must be released to the public four times per year, announcing the result of such review at the following meeting, and recording the result in the minutes of that meeting, Responding to a request for executive session minutes ‘The Open Meeting Law requires that a publie body respond to a request for minutes, both open and executive sessions, within 10 days of the request. G.L. c. 30A, §§ 22(e), (g)(2). Upon request by any person to inspect or copy the minutes of an executive session or any portion thereof, the public body must release any such minutes not covered by an exemption within 10 days; provided, however, that if the body has not performed a review of the executive session minutes, the public body shall perform the review and release the nonexempt minutes, or any portion thereof, not later than the public body’s next meeting or 30 days, whichever first occurs, GL. ¢. 30A, § 22(g)(2); see OML 2016-135. The complaint alleges that the Committee failed to timely review executive session minutes for release in response to a request made on April 8 by a member of the public for certain executive session minutes. The Committee acknowledges that it did not review the requested executive session minutes at its next meeting following the April 8 request to determine if they must be released, in violation of the Open Meeting Law. We credit the Committee's explanation that it spread its review over its next three meetings in order to give careful consideration to each set of minutes because there Were 44 sets of minutes to review, although we also note that the fact that there were so many sets of minutes to review was of the Committee's own doing. The Committee has committed to reviewing executive session minutes at the next meeting or 30 days, whichever occurs first, following a request for executive session minutes. * The complaint specifically alleges that the Committe failed to comply with its own policy requiring it to “review executive session meeting minutes for possible declassification on, atleast, a quarterly basis.” The Division of Open Government's review concerns compliance with the Open Meeting Law, G.L. e. 30A, §§ 18-25; therefore, we decline to review, and offer no opinion on, whether the Committee violated its own policy. See OML Declination 7- 16-20 Greater Lowell Technical School Committee); OMI. Declination 1-19-16 (Southborough Zoning Board of Appeal).Withholding executive session minutes ‘The complaint alleges that the Committee has violated the Open Meeting Law by continuing to “withhold certain executive session meeting minutes.” As explained above, Open Meeting Law complaints must allege violations with a degree of specificity as our office will not conduct broad audits of public bodies based on generalized allegations. Where the allegation that the Committee continues to withhold “certain executive session meeting minutes” does not identify any particular executive session minutes, we decline to review this allegation. We remind the Committee, as explained above, that executive session minutes may be withheld from disclosure to the public “as long as publication may defeat the lawful purposes of the executive session, but no longer.” G.L. c. 30A, § 22(f) Sufficiency of executive session minutes The Open Meeting Law requires that public bodies “create and maintain accurate minutes of all meetings, including executive sessions.” G.L. ¢. 30A, § 22(a). Meeting minutes must include “the date, time and place, the members present or absent, a summary of the discussions on each subject, a list of documents and other exhibits used at the meeting, the decisions made and the actions taken at each meeting, including the record of all votes.” Id. Meeting 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 occurred. See OML 2016-105. Although a transcript of the discussions is not required, and the minutes do not need to include every remark or opinion presented, minutes must include a substantive summary of the discussion on each topic. See OML 2020-57; OML 2018-8; OML 2012-29. A statement that a discussion was held is insufficient; the law requires that the minutes summarize the discussion that was held. See OML 2020-57; OML 2019-167. Finally, when in executive session, all votes must be taken by roll call and recorded in the minutes as such. G.L. ¢. 30A, § 22(b), The complaint alleges that the executive session minutes released by the Committee are insufficiently detailed and fail to include a list of the documents used at the executive sessions. Again, the complaint fails to identify any particular set of minutes alleged to be insufficient or any way in which they are insufficient; therefore, we limit our review to those executive session, minutes provided to our office by the Complainant and review whether the minutes are insufficient on their face. The minutes we review include minutes for executive sessions held on the following dates: April 29, August 23, September 1, and September 30 of 2021; and January 13, January 27, and February 17 of 2022. We find that the minutes reviewed are insufficient where they do not summarize the discussions that occurred, do not list any documents used during the meetings, and do not record roll call votes. See OML 2019-34 (“Even unanimous votes need to be recorded in the minutes by roll call.”). We order the Committee, within 60 days of the date of this letter, to amend the minutes for the executive session meetings listed above to include a summary of all discussions held, a list of all documents used, if any, and a record of all roll call votes. Understanding that some time has passed since the executive session meetings at issue here, the Committee should add the requisite level of detail to the minutes to the best of its ability. We remind the Committee that any amendments to the minutes must accurately capture What was actually discussed during the meetings. As required by 940 CMR 29.07(4), the Commitice must certify in writing to our office that it has complied with this order.Improper executive session ‘The Open Meeting Law requires that all meetings of a public body be conducted in an open session, unless a closed-door executive session is convened for one of the ten permissible purposes enumerated in the law. G.L. ¢. 30, §§ 20(a), 21(a). One such statutory purpose for executive session is “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 public body and the chair so declares.” G.L. ¢, 30A, § 21(a)(3) (“Purpose 3”), The exceptions to the general rule that meetings of a public body shall be open are narrowly construed, and a public body’s discussions with its counsel do not automatically fall under Purpose 3 or any other executive session purpose. See MeCrea v. Flaherty, 71 Mass. App. Ct. 637, 641 (2008); Plymouth Dist. Atty v. Bd. Of Selectmen of Middleborough, 395 Mass. 629 (1985); OML 2012- 55; OML 2014-42. ‘The complaint alleges that the Committee discussed a matter not appropriate for executive session when it “[yJoted on [a] transportation agreement in executive session.” The Committee disputes that it voted on a transportation contract in executive session, explaining that “the Superintendent merely updated the Committee and sought input on the potential need to make temporary adjustments under the existing transportation contract in light of school closures, relating to COVID.” Based on our review of the executive session minutes provided to our office by the Complainant, we find that on April 29, 2021, the Committee convened in executive session under Purpose 3 and discussed a contract with Lucini Transportation. As part of this discussion the Committee voted to accept a Memorandum of Agreement with Lucini Transportation. As explained above, the ten executive session purposes that allow a public body to convene in private are construed narrowly. Where the agreement discussed pertained to services provided by a private company, and not to a collective bargaining agreement, discussion of such agreement \was not appropriate for executive session. See OML 2014-149 (finding discussions of negotiations with a law firm inappropriate for executive session under G.L. ¢. 30A, § 21(a)(2) and noting that “{t]he Legislature did not include preparation for negotiation of services agreements as one of the limited purposes for executive session.”); OML 2022-29 (“[PJublie bodies are not permitted to discuss in executive session under Purpose 2 other types of contracts such as vendor or services contraets.”). Additionally, we note that the Committee’s discussion of the Lucini contract would not have been appropriate for executive session even if the Committee had not taken a vote but had merely discussed the contract. We find that the Committee violated the Open Meeting Law on April 29, 2021, when it discussed a matter in executive session that ‘was not appropriate for executive session. For the reasons stated above, we find that the Committee violated the Open Meeting Law by failing to periodically review executive session minutes for release to the public: failing to timely review executive session minutes in response to a request for executive session minutes; creating insufficient executive session minutes; and convening in executive session for an improper purpose. We order the Committee’s immediate and future compliance with the Open Meeting Law and caution that similar violations in the future may be considered evidence of anintentional violation of the law. Additionally, we order the Committee to amend the executive session minutes listed above in compliance with the guidance provided above and to certify to our office within 60 days that it has done so. We now consider the complaint addressed by this determination to be resolved. This determination does not address any other complaints that may be pending with the Committee or with our office. Please feel free to contact our office at (617) 963-2540 if you have any questions regarding this letter. Elizabeth Cames Flynn Assistant Attorney General Division of Open Government Sincerely ce: Michelle Durrance, Chair of the Easton School Committee (via email: mdurrance@easton.k12.ma.us) Kathleen Sheehan (via e-mail: Easton Town Clerk (via e-mail dsicard@easton.ma.us) This determination was issued pursuant to G.L. c.30A, § 23(c). A public body or any member of a body aggrieved by a final order of the Attorney General may obtain judicial review through an action filed in Superior Court pursuant to G.L. c. 30A, § 23(@). The complaint must be filed in Superior Court within twenty-one days of receipt of a final order.