Heard: March 9, 2016.
action commenced in the Superior Court Department on
January 5, 2015.
motion to dismiss was heard by Robert A. Cornetta, J.
Michael C. Walsh (David E. Miller with him) for the
A. Mullen for the defendants.
Present: Cypher, Cohen, & Neyman, JJ.
plaintiffs, three registered voters (voters) in the town of
Lynnfield (town), appeal from the dismissal in the Superior
Court of their complaint alleging that the board of selectmen
of Lynnfield (board) violated the open meeting law, G. L. c.
30A, §§ 18-25, in the selection process for
appointing several municipal officials. The voters argue that
the board violated the open meeting law by (1) failing to
give proper notice of the meeting at which the new town
administrator was appointed; (2) failing to properly process
their complaint; and (3) failing to interview and to
deliberate on applicants for the town administrator position
in an open meeting. We affirm the dismissal of the complaint.
case appears to be the first under G. L. c. 30A, §§
18-25, to reach an appellate court. This new statute,
inserted by St. 2009, c. 28, § 18,  was a significant
revision of the former open meeting law, G. L. c. 39,
§§ 23A-23C, which was repealed by St. 2009, c. 28,
§ 20. Therefore, we briefly summarize provisions of the
new law as relevant to the present case.
open meeting law continues to "manifest ... a general
policy that all meetings of a governmental body should be
open to the public unless exempted by . . . statute."
Attorney Gen, v. School Comm. of Taunton, 7
Mass.App.Ct. 226, 229 (1979) . Section 20 (a.) of the open
meeting law declares that "all meetings of a public body
shall be open to the public, " and § 20(b) states
that a public body "shall post notice of every meeting
at least 48 hours prior to such meeting." G. L. c. 30A,
§ 20, as appearing in St. 2014, c. 485.
19 (a.) of the new law established a division of open
government in the office of the Attorney General and provided
her authority pursuant to § 25 (a.) to "promulgate
rules and regulations to carry out enforcement of the open
meeting law, "and authority pursuant to § 25(b) to
"interpret the open meeting law and to issue written
letter rulings or advisory opinions according to rules
established under this section."
particular significance in the present case, § 23 (b) of
the new law provides a procedure for the prompt review of
allegations that a public body has violated the open meeting
law and for bringing the complaint to the attention of the
Michael Walsh, a resident of the town, submitted a complaint
dated December 2, 2014, to the board, alleging a pattern of
violations of the open meeting law in the appointment process
for several municipal positions, centering his complaint on
the board meeting on November 3, 2014, where it voted to
appoint a new town administrator to replace the administrator
who was retiring. Walsh, following the procedure stated in G.
L. c. 30A, § 23(b),  timely submitted his complaint to the
board, attached to the Attorney General's open meeting
law complaint form. The town administrator, acting for the
board, referred the complaint to town counsel, who reviewed
the complaint and within fourteen days sent a detailed
analysis and his findings to the Attorney General, with a
copy sent to Walsh. Town counsel determined that the board
did not violate the open meeting law and concluded that no
remedial action was necessary.
was no response from Walsh until, acting with the two other
plaintiffs and following the alternate procedure in G. L. c.
30A, § 23 (f),  the voters filed a complaint in the
Superior Court on January 5, 2015, seeking injunctive relief,
and a short order of notice issued. The voters also
subpoenaed records and the testimony of town officials.
pause here to note that we are unable to determine from the
record why there was no response to town counsel's
analysis and findings from Walsh, whose abrupt change of
course, not explained by the parties, appears to have been an
abandonment of the procedure set in motion by his complaint
to the board. While there is nothing in § 23(b) that
states what action either the Attorney General or a
complainant may take after a public body has submitted its
determination to the Attorney General, 940 Code Mass. Regs.
§ 29.05(6) (2010) provides that if "at least 30
days have passed after the complaint was filed with the
public body, and if the complainant is unsatisfied with the
public body's resolution of the complaint, the
complainant may file a complaint with the Attorney
General." Assuming that Walsh overlooked these
explications of the path open for a complainant unsatisfied
with a public body's response, a paralegal at the office
of the Attorney General, in a letter to Walsh, stated that a
notification and a ...