School Committee’s failure to ratify settlement may have violated Open Meeting Law

The Marblehead School Committee may have violated the state’s Open Meeting Law by not reconvening in open session to ratify the settlement agreement reached with Superintendent John Buckey. 

That agreement was announced by a “joint press release” distributed by email by Chair Sarah Fox on Aug. 2, two days after the board had met in executive session to continue strategizing over its intent to exercise a buyout clause in Buckey’s contract.

The state’s open meeting law, G.L.c. 30A, § 21, sets out 10 permissible reasons for entering executive session, and the board entered its July 31 executive session — and another such session 10 days earlier — citing the second of those reasons, “to conduct strategy sessions in preparation for negotiations with nonunion personnel or to conduct collective bargaining sessions or contract negotiations with nonunion personnel.”

However, guidance from the Attorney General’s Office makes clear, “While a public body may agree on terms with individual non-union personnel in executive session, the final vote to execute such agreements must be taken by the public body in open session.”

The Current asked two attorneys whether there was a meaningful distinction between an initial contract or contract extension and the “settlement agreement and release” reached with Buckey, and both replied that there was not — that all were “new contracts” that should have been voted on in open session.

Late Monday afternoon, in response to an inquiry from the Current, the School Committee’s attorney, Colby C. Brunt, said it was her understanding from speaking to Chair Sarah Fox that Fox would be scheduling a public meeting this week to ratify the separation agreement.

Previously, Fox had indicated that the guidance the board had gotten from Brunt was that a public vote was unnecessary, citing the fact that Buckey had “resigned” rather than being dismissed by the School Committee.

“We have a lawyer. She has advised us throughout the process, and we have followed all directions,” Fox told the Current. “I have complete faith in her legal advice. We did not terminate Dr. Buckey. He resigned. I can not divulge anything from executive session.”

Fox’s explanation appears to reference the first justification for an executive session under G.L.c. 30A, § 21, which allows executive sessions to be called “to discuss the reputation, character, physical condition or mental health, rather than professional competence, of an individual, or to discuss the discipline or dismissal of, or complaints or charges brought against, a public officer, employee, staff member or individual.”

However, the published agenda for the July 31 meeting specifically references the negotiation clause, G.L.c. 30A, §21(a)(2), and not G.L.c. 30A, §21(a)(1).

When the Attorney General’s Office has found that a local board has violated the Open Meeting Law requiring a public vote to execute a non-union personnel agreement, it typically has chosen not to nullify the actions taken by those boards.

For example, in 2011, the AG’s Office found the Foxborough School Committee violated the Open Meeting Law by agreeing to a contract addendum with its school superintendent in executive session and failing to ratify that agreement in open session.

That the negotiations had taken place in executive session was fine, the AG’s Office found.

“However, once the contract negotiations were complete, and the two parties had agreed to terms, the Committee should then have reconvened in open session and voted to approve the contract addendum, rather than taking such a vote in executive session.”

Another option would have been to wait until the agreement was reduced to writing and then approve the written document at a subsequent open session before the addendum was signed by the chair.

The AG’s Office declined to nullify the actions of the Committee at the executive session, instead ordering “immediate and future compliance by the Committee with the Open Meeting Law.” The AG’s Office also cautioned “that a determination by our office of similar violations in the future may be considered evidence of intent to violate the Open Meeting Law.”

A similar decision was reached later that same year after a complaint was filed against the Carver Board of Selectmen over its approval in executive session of a new contract for the town administrator, which was announced as a done deal in open session at a subsequent meeting.

“While the Board had proper authority under Purpose 2 to strategize and negotiate with the Town Administrator in executive session, the scope of the purpose is limited to the discussions, negotiations, and deliberations that occur prior to the vote on a contract,” the Attorney General’s Office wrote. “The Open Meeting Law does not permit the Board to approve a contract behind closed doors where the public cannot witness the agreement.”

Again, the AG’s Office stopped short of nullifying the approval of the town administrator’s contract.

But it added, “While we do not order nullification, in the interest of transparency, we strongly recommend that the Board reconsider its vote on the contract during an open session meeting.”

Also in 2011, the AG’s Office offered similar guidance to the Stoughton School Committee, which was found to have violated the Open Meeting Law by granting the town’s superintendent a contract extension in executive session. 

The AG’s Office suggested the same remedy — reconsideration of the vote on the contract extension during an open meeting.

The AG’s Office noted that, to fix an Open Meeting Law violation in this way, “the public body must take independent, deliberative action, and not merely engage in a ceremonial acceptance or perfunctory ratification of a secret decision.”

It was not enough that the board had subsequently held an open session discussion of the merits of the contract extension, the AG’s Office stated.

“Allowing public comment on an action already taken without publicly reconsidering the vote cannot cure a violation of the Open Meeting Law,” it wrote.