Supreme Judicial Court of Massachusetts, Middlesex
Heard: December 5, 2017
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.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
J. Lanza, Special Town Counsel, for the defendant.
S. Mackey, Special Assistant Attorney General (Christine M.
Zaleski also present) for Massachusetts Gaming Commission.
H. Harris for the plaintiffs.
following submitted briefs for amici curiae:
Healey, Attorney General, & Jonathan Sclarsic & Kevin
W. Manganaro, Assistant Attorneys General, for the Attorney
J. Ambrogi & Peter J. Caruso for Massachusetts Newspaper
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.
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.
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
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.
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.
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 ...