Boelter v. Board of Selectmen of Wayland , 479 Mass. 233 ( 2018 )

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SJC-12353
MARY ALICE BOELTER & others1 vs. BOARD OF SELECTMEN OF WAYLAND.
Middlesex. December 5, 2017. - April 5, 2018.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.
Open Meeting Law. Municipal Corporations, Open meetings,
Selectmen. Moot Question. Attorney General.
Civil action commenced in the Superior Court Department on
February 11, 2014.
The case was heard by Dennis J. Curran, J., on motions for
summary judgment.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Mark J. Lanza, Special Town Counsel, for the defendant.
David S. Mackey, Special Assistant Attorney General
(Christine M. Zaleski also present) for Massachusetts Gaming
Commission.
George H. Harris for the plaintiffs.
The following submitted briefs for amici curiae:
1 Dorothy J. Dunlay; Kent E. George; Stanley U. Robinson,
III; and Lois Voltmer.
2
Maura Healey, Attorney General, & Jonathan Sclarsic & Kevin
W. Manganaro, Assistant Attorneys General, for the Attorney
General.
Robert J. Ambrogi & Peter J. Caruso for Massachusetts
Newspaper Publishers Association.
Kenneth S. Leonetti, Christopher E. Hart, Michael Hoven, &
Kelly Caiazzo for Hal Abrams & others.
LENK, J. The plaintiffs, all registered voters in the town
of Wayland (town), brought this action in the Superior Court to
challenge the procedure by which the board of selectmen of
Wayland (board) conducted the 2012 performance review of the
town administrator. The chair of the board had circulated to
all board members, in advance of the public meeting where the
town administrator's evaluation was to take place, board
members' individual written evaluations, as well as a composite
written evaluation, of the town administrator's performance.
The board made public all written evaluations after the open
meeting. The issue before us is whether the board violated the
Massachusetts open meeting law, G. L. c. 30A, §§ 18 and 20 (a),
which generally requires public bodies to make their meetings,
including "deliberations," open to the public.
A judge of the Superior Court allowed the plaintiffs'
motion for summary judgment, issued a permanent injunction, and
declared "stricken" a contrary determination by the Attorney
General that had issued the prior year, on essentially the same
facts, in which the Attorney General had found that the board's
3
conduct had not violated the open meeting law. The board
appealed from the allowance of summary judgment, arguing that
the matter is moot, its conduct did not violate the open meeting
law, and the judge erred in "striking" the Attorney General's
separate administrative decision.
We conclude that the judge did not err in declining to
dismiss the case on mootness grounds, because the matter is
capable of repetition and yet evading review, and is of
substantial public importance. See, e.g., Seney v. Morhy, 467
Mass. 58, 61 (2014). We conclude further that the procedure the
board followed in conducting the town administrator's evaluation
did violate the open meeting law. In making this determination,
we consider, for the first time, the meaning of the open meeting
law's exemption to the definition of "[d]eliberation," which
became effective in July, 2010, that 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.
We conclude that this exemption 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. As the
individual and composite evaluations of the town administrator
4
by the board members contained opinions, the circulation of such
documents among a quorum prior to the open meeting does not fall
within the exemption, and thus constituted a deliberation to
which the public did not have access, in violation of the open
meeting law. We therefore affirm the judge's decision allowing
summary judgment for the plaintiffs on this ground. We agree
with the board, however, that the judge erred in "striking" the
Attorney General's determination, and vacate that portion of the
judge's decision.2
1. Background. The material facts are not in dispute. On
January 3, 2012, the five-member board held an open meeting
during which it reviewed the procedures it intended to follow in
conducting the annual performance evaluation of the town
administrator. The board agreed that, by the end of the month,
its members would submit individual evaluations to the chair,
who would compile the evaluations and draft a composite
evaluation. The composite evaluation was to be distributed to
all board members in advance of the scheduled March 28, 2012,
open meeting at which the board planned to discuss the town
administrator's performance and issue a final written
evaluation. The procedure the board chose to follow was largely
2 We acknowledge the amicus briefs submitted by the Attorney
General; the Massachusetts Gaming Commission; the Massachusetts
Newspaper Publishers Association; and Hal Abrams, Kim Abrams,
and Karen Silva.
5
consistent with the Attorney General's guidance to public bodies
regarding performance evaluations, which was available on the
Attorney General's Web site:
"May the individual evaluations of an employee be
aggregated into a comprehensive evaluation?
"Yes. Members of a public body may individually
create evaluations, and then submit them to an
individual to aggregate into a master evaluation
document to be discussed at an open meeting. Ideally,
members of the public body should submit their
evaluations for compilation to someone who is not a
member of the public body, for example, an
administrative assistant. If this is not a practical
option, then the chair or other designated public body
member may compile the evaluations. However, once the
individual evaluations are submitted for aggregation
there should be no deliberation among members of the
public body regarding the content of the evaluations
outside of an open meeting, whether in person or over
email."
In accordance with the plan developed at the open meeting,
three of the board members submitted written evaluations to the
chair. Two sent the evaluations by electronic mail (e-mail)
message, and one hand-delivered her evaluation. The chair
created a composite performance evaluation which included the
opinions of those three board members, as well as his own. The
reviews were predominantly positive. The chair then sent the
composite document, along with the three individual performance
evaluations, to each board member, by e-mail, as part of an
agenda packet for the then-upcoming open meeting.
6
At the meeting, the board reviewed and discussed the
composite evaluation and approved it as final. The minutes of
the meeting simply state that the board "praised [the town
administrator] for his availability and responsiveness to the
public, his work ethic, his relationship with town staff, and
his accessibility to board and committee members." The
composite and individual evaluations subsequently were released
to the public.
Approximately two months after the March 28, 2012, open
meeting, George Harris, a registered voter in Wayland, filed a
complaint with the office of the Attorney General, claiming that
the board's procedure for conducting the town administrator's
performance evaluation violated the open meeting law. See G. L.
c. 30A, §§ 18, 20 (a). The open meeting law requires public
bodies to make their meetings open to the public, and provide
advance notice of such meetings, unless the meeting is an
executive session, which can be conducted only for limited
reasons. See G. L. c. 30A, §§ 18, 20.
In January, 2013, the Attorney General responded with a
determination letter finding that the board's conduct had not
violated the open meeting law; Harris's subsequent request for
reconsideration was denied. As judicial review of an Attorney
General's determination in such matters is available only to an
7
aggrieved public body or member thereof, see G. L. c. 30A,
§ 23 (d), Harris did not appeal from the decision.
In February, 2014, the five plaintiffs in this action, who
are also registered voters in Wayland (and who are represented
by Harris) filed a complaint against the board in the Superior
Court, concerning the same facts. The complaint sought a
declaratory judgment and injunctive relief prohibiting the board
from commencing a "private exchange of opinions in deliberating
the professional competence of an individual prior to an open
meeting." The parties filed cross motions for summary judgment.3
The plaintiffs' motion was allowed after a hearing. The
judge concluded that the board had violated the open meeting law
and permanently enjoined it from "deliberating the town
administrator's professional competence by private written
messages before the commencement of a meeting open to the
public." In his decision, although not in the judgment or
amended judgment,4 the judge also declared that "[t]he opinion
from the Attorney General [d]ivision of [o]pen [g]overnment is
3 In civil actions to enforce the open meeting law, "the
burden shall be on the respondent to show by a preponderance of
the evidence that the action complained of in such complaint was
in accordance with and authorized by the open meeting law."
G. L. c. 30A, § 23 (f).
4 The initial judgment was amended to correct an erroneous
statutory reference.
8
stricken." The board appealed to the Appeals Court, and we
transferred the case to this court on our own motion.
2. Discussion. a. Standard of review. We review a
decision on a motion for summary judgment de novo, and thus
"accord no deference to the decision of the motion judge"
(citation omitted). Drakopoulos v. U.S. Bank Nat'l Ass'n, 465
Mass. 775, 777 (2013). "Summary judgment is appropriate where
there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law." Boazova v.
Safety Ins. Co., 462 Mass. 346, 350 (2012), citing Mass. R. Civ.
P. 56 (c), as amended, 436 Mass. 1404 (2002).
b. Mootness. At first blush, the plaintiffs' claims
appear moot, because the evaluation of the town administrator
has been completed, and the plaintiffs are no longer able to
affect the procedure the board implemented in 2012 in order to
ensure compliance with the open meeting law. In addition, the
typical remedy for such a violation is public release of the
documents at issue, which the board effectuated after the
asserted violation.5 See District Attorney for the N. Dist. v.
5 The board's mootness argument focuses on the fact that the
town administrator, whose performance evaluation was the subject
of this action, was terminated in August, 2013. The record is
silent as to the reasons for the termination or the outcome of
the administrator's other performance evaluations, if any. The
plaintiffs, however, are not challenging the outcome of this
particular town administrator's performance evaluation, which
9
School Comm. of Wayland, 455 Mass. 561, 572 (2009) (School Comm.
of Wayland).
Nonetheless, dismissal for mootness may be inappropriate if
the situation presented is "capable of repetition, yet evading
review" (citation omitted). Seney, 467 Mass. at 61. See Globe
Newspaper Co. v. Commissioner of Educ., 439 Mass. 124, 127
(2003). "In such circumstances, we do not hesitate to reach the
merits of cases that no longer involve a live dispute so as to
further the public interest" (citation omitted). Seney, supra.
Here, the board's practice is likely to recur; regardless of who
is serving as the town administrator, an evaluation must take
place every year. Moreover, the practice that the board
followed is endorsed by the posted information on the Attorney
General's Web site, meaning that other public bodies might
follow suit.6 At the same time, the issue likely would evade
judicial review, because of the relatively short window involved
in the annual review. See Wolf v. Commissioner of Pub. Welfare,
367 Mass. 293, 298 (1975) (matter capable of repetition and yet
evading review "because the claim of any named plaintiff is
was in fact positive. The town administrator's subsequent
termination thus is irrelevant to the mootness determination.
6 The Attorney General is authorized to interpret and
enforce the open meeting law. See G. L. c. 30A, § 23 (a). She
also may "promulgate rules and regulations to carry out
enforcement of the open meeting law," and "issue written letter
rulings or advisory opinions." G. L. c. 30A, § 25.
10
likely to be mooted by the mere passage of time during the
appeal process").
This matter is also of substantial public importance. By
challenging the board's procedure, the plaintiffs seek to ensure
that all of the town's constituents have access to the decision-
making process of their local government whenever a town
administrator is evaluated. See School Comm. of Wayland, 455
Mass. at 570 ("It is essential to a democratic form of
government that the public have broad access to the decisions
made by its elected officials and to the way in which the
decisions are reached" [emphasis in original; citation
omitted]). We conclude that the motion judge did not err in
declining to dismiss the case for mootness.
c. Open meeting law. General Laws c. 30A, § 20 (a),
provides that, with the exception of executive sessions,7 "all
meetings of a public body shall be open to the public."8 The
7 General Laws c. 30A, § 21 (a), permits a public body to
meet in an executive session in ten limited circumstances, none
of which is applicable here. Notably, these circumstances
include discussion of "the reputation, character, physical
condition or mental health, rather than professional competence,
of an individual" (emphasis added). See G. L. c. 30A,
§ 21 (a) (1).
8 "Except in an emergency, in addition to any notice
otherwise required by law, a public body shall post notice of
every meeting at least [forty-eight] hours prior to the meeting,
excluding Saturdays, Sundays and legal holidays. In an
11
statute defines a "meeting" as "a deliberation by a public body
with respect to any matter within the body's jurisdiction,"
subject to certain exclusions not relevant here. G. L. c. 30A,
§ 18. A "deliberation," in turn, is defined as "an oral or
written communication through any medium, including [e-mail],
between or among a quorum of a public body on any public
business within its jurisdiction." Id.
The statute, however, provides an exemption:
"'deliberation' shall not include the distribution of a meeting
agenda, scheduling information or distribution of other
procedural meeting or the distribution of reports or documents
that may be discussed at a meeting, provided that no opinion of
a member is expressed" (emphasis added). Id. The parties
dispute whether, in circulating the individual and composite
evaluations in advance of the public meeting, the board members'
opinions were "expressed" within the meaning of this exemption.
To resolve this dispute, we must "effectuate the intent of
the Legislature" (citation omitted). Koshy v. Sachdev, 477
Mass. 759, 765 (2017). "We begin with the canon of statutory
construction that the primary source of insight into the intent
of the Legislature is the language of the statute." Id. at 766,
emergency, a public body shall post notice as soon as reasonably
possible prior to the meeting." G. L. c. 30A, § 20 (b).
12
quoting International Fid. Ins. Co. v. Wilson, 387 Mass. 841,
853 (1983).
As an initial matter, the open meeting law does not provide
a meaning for the word "opinion." In ordinary usage, an
"opinion" is "a view, judgment, or appraisal formed in the mind
about a particular matter." Webster's Third New International
Dictionary 1582 (1993). See Boylston v. Commissioner of
Revenue, 434 Mass. 398, 405 (2001) ("We usually determine the
plain and ordinary meaning of a term by its dictionary
definition" [quotation omitted]). The individual and composite
evaluations prepared by the board members and shared with the
quorum doubtless constituted "appraisals" of the town
administrator's performance, and therefore contained board
members' opinions. The question, then, is whether the
circulation of the individual and composite evaluations
containing board members' opinions was permissible since the
opinions were not expressed in the body of the chair's e-mail
message circulating the evaluations but, rather, in the
attachments themselves.
The phrase, "provided that no opinion of a member is
expressed," specifically pertains to "reports or documents that
may be discussed at a meeting." G. L. c. 30A, § 18. See
Deerskin Trading Post, Inc. v. Spencer Press, Inc., 398 Mass.
118, 123 (1986) (general rule of grammatical construction is
13
that "a modifying clause is confined to the last antecedent"
[citation omitted]). The natural reading of the statute is that
two categories are carved out of the definition of
"deliberation." It is not "deliberation" when the materials
distributed to the quorum fall into one of two categories:
first, purely procedural or administrative materials (such as
agendas) and, second, reports or documents to be discussed at a
later meeting, so long as such materials do not express the
opinion of a board member.
The board argues that the phrase, "provided that no opinion
of a member is expressed," only pertains to the distribution of
reports or documents, and not to the reports or documents
themselves. In other words, the board believes that the statute
permits board members to share their opinions with a quorum
provided that the opinions are not expressed in, for example,
the body of an e-mail message or in a cover letter, but only in
attachments to e-mail messages or documents referred to in a
cover letter. This reading would create a loophole that would
render the open meeting law toothless. See ENGIE Gas & LNG LLC
v. Department of Pub. Utils., 475 Mass. 191, 199 (2016) ("The
court does not determine the plain meaning of a statute in
isolation but, rather, . . . [considers] the surrounding text,
structure, and purpose of the Massachusetts act . . ." [citation
and quotations omitted]); Champigny v. Commonwealth, 422 Mass.
14
249, 251 (1996) (reading of statute that causes it to have "no
practical effect" is absurd result, and we "assume the
Legislature intended to act reasonably"). If we were to adopt
the board's view, the board members permissibly could have
conducted an extended communication on any topic without public
participation, so long as they styled their opinions as separate
reports or documents and delivered them without substantive
comment by hand, United States mail, or e-mail messages. This
plainly cannot be what the Legislature intended in adopting the
exemption. See Worcester v. College Hill Props., LLC, 465 Mass.
134, 145 (2013), quoting North Shore Realty Trust v.
Commonwealth, 434 Mass. 109, 112 (2001) (statute "should not be
so interpreted as to cause absurd or unreasonable results when
the language is susceptible of a sensible meaning").
Our reading is consistent with the statute's history.
Previously, the open meeting law defined "deliberation" as "a
verbal exchange between a quorum of members of a governmental
body attempting to arrive at a decision on any public business
within its jurisdiction." See G. L. c. 39, § 23A, as appearing
in St. 1975, c. 303, § 3. In School Comm. of Wayland, 455 Mass.
at 570-571, this court clarified that a "private e-mail exchange
in order to deliberate the superintendent's professional
competence" among Wayland school committee members "violated the
letter and spirit of the open meeting law," because
15
"[g]overnmental bodies may not circumvent the requirements of
the open meeting law by conducting deliberations via private
messages, whether electronically, in person, over the telephone,
or in any other form." We reasoned that the e-mail
communications at issue were not protected, "as we must presume
the substance of the written comments would have been stated
orally at an open meeting in which the superintendent's
professional competence was discussed." Id. at 571-572.
In the same year that School Comm. of Wayland, supra, was
decided, the Legislature broadened the open meeting law's
definition of "deliberation," and affirmed that a "deliberation"
could encompass "any medium," not just verbal communication.
See St. 2009, c. 28, §§ 18, 20, 106 (effective July 1, 2010).
At the same time, however, the Legislature amended the open
meeting law expressly to allow public bodies to distribute some
materials internally in advance of open meetings without
triggering the definition of "deliberation"; this change seems
to have been a response to the practical realities of local
governmental service. By permitting officials to review certain
administrative materials and reports in advance of an open
meeting, the Legislature took steps to ensure that the work of
those officials at the meetings could be focused and efficient.
At the same time, in recognition that the overarching purpose of
the open meeting law is to ensure transparency in governmental
16
decision-making, the Legislature specified that no opinion of a
board member could be expressed in any documents circulated to a
quorum prior to an open meeting. See Revere v. Massachusetts
Gaming Comm'n, 476 Mass. 591, 610 (2017) ("the new version of
the open meeting law does not alter our belief that '[i]t is
essential to a democratic form of government that the public
have broad access to the decisions made by its elected officials
and to the way in which the decisions are reached'" [citation
omitted]). However inefficient this may prove for local bodies
in certain circumstances, this is the balance that the
Legislature has struck.
The board argues that the Attorney General's interpretation
of the open meeting law is entitled to deference and should
prevail. In the determination letter dismissing Harris's
complaint, the Attorney General found that the board did not
violate the open meeting law because "the [c]hair performed an
administrative task exempt from the law's definition of
deliberation." She explained that the chair's "email did no
more than distribute a document to be discussed at the [b]oard's
meeting that night. The email did not contain any advocacy by
[the chair], and it did not invite comment from other [b]oard
members, nor was any comment provided." She went on to explain
that "[a]lthough the document itself may have contained the
opinions of [b]oard members, we find compiling evaluations to be
17
a permissible and necessary function for public bodies to
conduct ahead of meetings, so long as discussion of the
evaluations occurs during an open meeting." The Attorney
General conceded, however, that because e-mail communication
among a quorum of public body members, "however innocent[,]
creates at least the appearance of a potential open meeting law
violation . . . our best advice continues to be that public
bodies not communicate over email at all except for distributing
meeting agendas, scheduling meetings and distributing documents
created by non-members to be discussed at meetings, which are
administrative tasks specifically sanctioned under the open
meeting law."
Where, as here, the Attorney General is authorized to
interpret a statute, her interpretation is entitled to
substantial deference, unless it is inconsistent with the plain
language of the statute. Smith v. Winter Place LLC, 447 Mass.
363, 367-368 (2006). In this case, the Attorney General's
characterization is not supported by the plain meaning of the
statute, and therefore is not accorded such deference. While
the Attorney General correctly notes that the e-mail message to
the board to which the evaluations were attached did not itself
contain advocacy or invite comment, this does not alter the fact
that the evaluations themselves contained board members'
opinions. The Attorney General dismisses the fact that the
18
composite evaluation contained board members' opinions by
stating that "compiling evaluations" is a "permissible and
necessary function for public bodies," but the chair did not
simply compile the evaluations in this case -- he circulated the
compiled evaluations to a quorum. We note also that the
Attorney General's determination letter fails to recognize that
the chair sent not only the composite evaluation, but also the
three individual evaluations, to all board members.
We conclude that the board's conduct violated the open
meeting law. The circulated individual and composite
evaluations expressed the opinions of the board members to a
quorum in advance of the public meeting. As the plaintiffs
note, the effect of the circulation of the individual and
composite evaluations was that all five board members were aware
of the opinions of four of the members in advance of the open
meeting; thus, the circulation, in effect, constituted a
deliberation, or a meeting, to which the public did not have
access. Indeed, the motion judge noted that, after the
circulation, and before the open meeting, "it was rather obvious
that the die had been cast as to whether the town administrator
should be continued in his position." The open meeting law was
intended to ensure that the public is able to see for themselves
how such decisions are made. See Revere, 476 Mass. at 610. The
distribution of the individual and composite opinions to the
19
quorum, prior to the meeting, was thus a violation of the open
meeting law. See G. L. c. 30A, § 18. Compare School Comm. of
Wayland, 455 Mass. at 570 ("Open meetings provide an opportunity
for each member of the governmental body to debate the issues
and disclose their personal viewpoints before the governmental
body reaches its decision on a matter of public policy"
[emphasis added]); McCrea v. Flaherty, 71 Mass. App. Ct. 637,
641 (2008) (open meeting law "provides for public access to the
decision-making process when it is in a formative stage, several
steps removed from the eventual result").
The result here would have been different if the board had
made the individual and composite evaluations publicly available
before the open meeting. For example, the board could have
posted the evaluations on its Web site and made paper copies
available for inspection at or about the time that the
evaluations were circulated among a quorum of board members.
Ordinarily, the board is required only to make the minutes of
open meetings, along with "the notes, recordings or other
materials used in the preparation of such minutes and all
documents and exhibits used at the session," available to the
public, upon request, within ten days after an open meeting has
taken place. G. L. c. 30A, § 22 (c), (e). Nothing in the open
meeting law or the public records statute, however, precludes
the board from prior disclosure, at least in these
20
circumstances.9 See G. L. c. 4, § 7; G. L. c. 30A, §§ 18-25;
G. L. c. 66, §§ 1 et seq. If board members wish to circulate
documents containing board member opinions among a quorum in
advance of an open meeting, as here, prior and relatively
contemporaneous public disclosure of those documents, where
permissible, is necessary in order to comply with the open
meeting law and to advance the statute's over-all goal of
promoting transparency in governmental decision-making.
d. Striking the Attorney General's decision. The board
argues that, in his decision granting the plaintiffs' motion for
summary judgment, the judge erred in ruling that "[t]he opinion
from the Attorney General [d]ivision of [o]pen [g]overnment is
stricken."10 We agree. The open meeting law establishes two
separate means by which a party may complain of a violation: an
aggrieved party may seek administrative remedies, for which
9 Under the open meeting law, only the following materials
used in open meetings are "exempt from disclosure to the public
as personnel information: (1) materials used in a performance
evaluation of an individual bearing on his professional
competence, provided they were not created by the members of the
body for the purposes of the evaluation; and (2) materials used
in deliberations about employment or appointment of individuals,
including applications and supporting materials; provided,
however, that any resume submitted by an applicant shall not be
exempt" (emphasis added). G. L. c. 30A, § 22 (e).
10While the judge's decision does not specify which opinion
it purports to strike, in context, it can refer only to the 2013
determination letter dismissing Harris's complaint. The
plaintiffs do not dispute that the decision to strike was
improper.
21
judicial review is available only to a government entity that is
party to the ruling, or file a registered-voter complaint in the
Superior Court, as here. See G. L. c. 30A, § 23 (b), (d), (f).
To the extent that the judge was attempting to reverse the
Attorney General's decision on Harris's administrative
complaint, he had no authority to do so.11 While Harris's
administrative complaint and this action concern the same facts,
Harris's complaint was not before the judge. Nor could it have
been, as Harris was not a member of a public body at the time
that the complaint was filed. See G. L. c. 30A, § 23 (d) ("A
public body or any member of a body aggrieved by any order
issued pursuant to this section [by the Attorney General] may,
notwithstanding any general or special law to the contrary,
obtain judicial review of the order only through an action in
[S]uperior [C]ourt seeking relief in the nature of certiorari").
3. Conclusion. The judgment is affirmed. The purported
"striking" of the Attorney General's determination at the
administrative proceeding is vacated. The matter is remanded to
the Superior Court for such further proceedings as are required.
So ordered.
11The purported striking was not necessary to ensure
uniform resolution of future open meeting law challenges. The
Attorney General has represented that if we affirm the judge's
decision, she will amend her guidance and adjust her
interpretation of the open meeting law when resolving
complaints.