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Three Registered Voters v. Board of Selectmen of Lynnfield

Appeals Court of Massachusetts, Essex

August 12, 2016

THREE REGISTERED VOTERS
v.
BOARD OF SELECTMEN OF LYNNFIELD & another. [1]

          Heard: March 9, 2016.

         Civil action commenced in the Superior Court Department on January 5, 2015.

         A motion to dismiss was heard by Robert A. Cornetta, J.

          Michael C. Walsh (David E. Miller with him) for the plaintiffs.

          Thomas A. Mullen for the defendants.

          Present: Cypher, Cohen, & Neyman, JJ.

          CYPHER, J.

         The plaintiffs, three registered voters (voters)[2] 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)[3] 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.

         This 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2009, c. 28, § 18, [4] was a significant revision of the former open meeting law, G. L. c. 39, §§ 23A-23C, which was repealed by St. 2009, c. 28, § 20.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.

         The 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.

         Section 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, "[5]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."

         Of 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 Attorney General.

         Procedural background.

         Plaintiff 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), [6] 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.

         There was no response from Walsh until, acting with the two other plaintiffs and following the alternate procedure in G. L. c. 30A, § 23 (f), [7] 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.

         We 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."[8] 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 ...


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