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Boelter v. Board of Selectmen of Wayland

Supreme Judicial Court of Massachusetts, Middlesex

April 5, 2018


          Heard: December 5, 2017

         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:

          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.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          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 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 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 ...

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