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Boelter v. Wayland Board of Selectmen

Superior Court of Massachusetts, Middlesex

June 29, 2016

Mary Alice Boelter et al.
v.
Wayland Board of Selectmen No. 134064

          MEMORANDUM OF DECISION AND ORDER

          DENNIS J. CURRAN, Associate Justice.

         The plaintiffs, registered voters in the town of Wayland, have sued their town officials, this time their board of selectmen, for again violating the Massachusetts Open Meeting Law, G.L.c. 30A, Sections 18-25. See District Attorney for the Northern District v. School Committee of Wayland, 455 Mass. 561, 918 N.E.2d 796 (2009), and Collins et al. v. Wayland Board of Selectmen, Middlesex Superior Court, Docket No. 2011-0158, 31 Mass.L.Rptr. No. 8, pp. 189, 190 (June 3, 2013). They also seek yet another declaratory judgment under G.L.c. 231, Sections 1 through 9 that the board violated the Open Meeting law when it began deliberating the professional competence of the town administrator by sending private email messages before the commencement of an open meeting; and finally, they seek an Order permanently enjoining the Board from such future practice.

         The Board counters that the claim is moot and asserts that it acted legally.

         For the reasons detailed below, the Court concludes that this action should not be dismissed as moot because the registered voters have raised issues of public importance that are likely to evade further judicial review. Further, given the disturbing history of repeated violations of the Open Meeting Law by Wayland town officials in recent years, evidenced by the cases cited above, it is time to enter a permanent injunction in the procedure detailed below, against that town's public officials ordering them to comply with the state Open Meeting Law in conducting the people's business.

         Mootness

         The controversy that the voters ask the Court to resolve involves the Board's practice of soliciting evaluations by individual selectmen of the professional competence of a town administrator by private email in advance before an open meeting. The town seeks to evade review by proclaiming that the dispute is moot, because the town administrator has since been terminated.

         This hardly satisfies our inquiry because the issue of how the board may deliberate, and given the town's past flagrant disregard of the Open Meeting Law by its political cognoscenti, seems highly likely to recur. If a similar situation does arise, it would likely evade judicial review. Judicial review, after the fact, would be futile and worse yet, the public's ability to vindicate its interest in having free, unfettered and open deliberations would be eviscerated.

         This is an issue of substantial public importance. If the town of Wayland has a problem with the state Open Meeting Law--as it appears from its repeated flouting of that law--it ought to seek legislative change. But the statute exists for a reason: the public, through its lawfully-elected representatives, simply does not trust the conduct of public business in private. As was sagely observed by my colleague (Salinger, J.): " The goal of the open meeting law is to advance democracy by providing broad access to governmental decision-making and eliminating 'the secrecy surrounding the deliberations and decisions on which public policy is based.' Bartell v. Wellesley Housing Authority, 28 Mass.App.Ct. 306, 308-09, 550 N.E.2d 883 (1990), quoting Ghiglione v. School Committee of Southbridge, 376 Mass. 70, 72, 378 N.E.2d 984 (1978). This is 'an extremely important public policy [that] goes to the core of good . . . and open government.' Pearson v. Board of Health of Chicopee, 402 Mass. 797, 800, 525 N.E.2d 400 (1988). '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.) District Attorney for the Northern District v. School Committee of Wayland, 455 Mass. 561, 570, 918 N.E.2d 796 (2009), quoting Foudy v. Amherst-Pelham Regional School Committee, 402 Mass. 179, 184, 521 N.E.2d 391 (1988)." See Collins et al. v. Wayland Board of Selectmen, Middlesex Superior Court Docket No. 2011-0158, 31 Mass.L.Rptr. No. 8, p. 189, 190 (June 3, 2013), supra . This case presents an issue of ongoing public importance that is " capable of repetition in a manner that might again evade review." The registered voters are entitled to have the Court resolve their claim even though the board's action is now moot. See Globe Newspaper Co. v. Commissioner of Education, 439 Mass. 124, 127, 786 N.E.2d 328 (2003).

         Burden of Proof

         Wayland's board bears the burden of showing that it was lawful to conduct the public's business in the private manner it did. See District Attorney for the Northern District v. School Committee of Wayland, 455 Mass. 561 at 566, 567-68, 918 N.E.2d 796 (2009) (private e-mail exchange in order to deliberate the superintendent's professional competence . . . violated the letter and spirit of the open meeting law"). The board cannot satisfy its burden.

         The Open Meeting Law

          This law requires that the public be notified of all public meetings and that such meetings are open to the public, unless an executive session is convened. A meeting is defined as a " deliberation by public body with respect to any matter within [that] body's jurisdiction . . ." M.G.L.c. 30A, § 18, ¶ 6. The statute defines " deliberation" as " an oral or written communication through any medium, including electronic mail, between or among a quorum of a public body within its jurisdiction; provided, however, that 'deliberation' shall not include the distribution of a meeting agenda . . ., provided [further] that no opinion of a member is expressed." (Id., ¶ 2, emphasis added.) A public body may only discuss the professional competence of an individual in open session and not in executive session. G.L.c. 30A, Section 21(a)(1).

         In sum, the Open Meeting Law requires that members of a public body may express their opinions on an individual's professional competence only through a public meeting and not through privately-communicated documents--even if such documents are discussed at a later public meeting. Orchestrated private exchanges of opinions on the professional competence of an employee between individual members of a public body and its chair, as occurred here, are prohibited. This was the lesson the town of Wayland's public officials should have learned from the Supreme Judicial Court's decision on other of Wayland's representatives in 2009, a full two years before its own selectmen embarked on this present illegal odyssey, when the Court then declared:

We hold that, while some of these exchanges were not between a quorum of members, and therefore were not strictly " deliberation, " they had the effect of circumventing the ...

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