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Thread: Middlesex Superior Court rules in favor of School Committee (Superintendent Eval.)

  1. #31
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    Angry Non-submittal of Notes, OML and Quorum requirements

    Jeff Dieffenbach wrote on a Town Crier comment board:
    One might incorrectly infer from Mr. Lodge's comments above that the Wayland School Committee did not release the draft evaluation.

    Regarding its 2004 Superintendent evaluation, the Middlesex District Attorney, citing the Open Meeting Law, requested that the Wayland School Committee (WSC) release the following documents:
    1. The final evaluation
    2. The draft evaluation
    3. The meeting minutes covering the executive sessions in which those two documents were discussed
    4. 'Individual comments' submitted by individual members to the chair only

    The WSC promptly released items 1, 2, and 3. The Open Meeting Law did not appear to apply to the individual comments, as they were never discussed by a quorum of the WSC in any forum. The recent Middlesex Superior Court ruling in favor of the WSC validates that interpretation.

    The interested reader might visit the Wayland eNews Discussion Forum to follow considerable conversation on this topic.
    http://www.waylandenews.com/forum/showthread.php?t=166
    Jeff,
    Under Lodge's article you wrote the above text and referred back a quote on WaylandeNews so I took your advice and came back here to respond. I also took a stab at it there but I will rephrase it here for continued discussion if you wish.

    From what you wrote I get the idea that you are saying that the 'interim' notes of the evaluation were not required to be submitted to the Crier reporter at his request because those notes were never discussed by a quorum of the SC since they were *only* submitted to the chair.

    Serial quorum's can be created by serial communication via word of mouth, phone, email, passing paper around such that a quorum could be created in 'serial'. Now I believe you were the chair of the SC at that time so is it your contention that you can say that you never shared those individual comments with any other members of the SC?

    If so, then from your point of view then no more than 2 SC members knew of any given comment at any given time and no quorum was created.

    However, if any other member of the SC showed, gave or discussed those comments with any other member and then shared it with you then a quorum did occur.

    So were affidavits provided by all members of the SC that this did not occur such that no quorum was ever created in serial?

    And if not, then I would think that this would be important to establish going forward and in light of the fact that the DA could appeal this case.

    I am attaching a copy of the OML which addresses the concept of serial quorum formation and that can be found on page 3 of 14 of the attached document.

    [ BTW: Excuse the icon, you always use [grin] ... this is my anti-grin ]
    Attached Images Attached Images
    Last edited by Kim Reichelt; 07-28-2008 at 03:36 PM. Reason: fix quote linking

  2. #32
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    Default

    Given the possibility of an appeal, I'll defer comment.

  3. #33
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    Exclamation DA has Appealed the Burton OML Case

    Quote Originally Posted by Jeff Dieffenbach View Post
    Given the possibility of an appeal, I'll defer comment.
    http://www.wickedlocal.com/wayland/n...meeting-ruling

  4. #34
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    Default At least he has his priorities right


  5. #35
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    Default SJC overturns Middlesex Superior Court decision

    Here's the version that I read of the Supreme Judicial Court ruling on the 2004 Wayland Superintendent evaluation process. Note that I provided a bit of background in Post 29 earlier in this thread.

    Perhaps I'm missing something. but the SJC ruling appears to be a potential major setback for anyone wishing to have access to superintendent evaluations. The SJC writes, "written performance evaluations are not a public record, and are not required to be made available to the public."

    The SJC goes on to say, in essence, that the Middlesex District Attorney was wrong to require the School Committee to make the draft and final evaluations public.

    "In light of the requirements of both the open meeting law and the public records law, the correct procedure in this case would have been for the school committee to meet in open session to discuss the professional competence of the superintendent. When the school committee reached the state of deliberations where the preparation and drafting of the written performance evaluation was imminent, it should have voted to adjourn to an executive session under G.L. c. 39, § 23B (7), which allows a governmental body to meet in executive session to comply with the provisions of any general or special law, here, the public records law. [FN5] Although the school committee, with the approval of the superintendent, did make the draft and final performance evaluations available to the public in this case, this was not necessary. Without the superintendent's consent, the performance evaluation would be absolutely exempt from disclosure." [emphasis added]

    One thing I don't pretend to understand at all: in practically the same breath, the SJC says that the individual written comments must released but that draft and final written evaluations do NOT need to be released.

    "The school committee is required to make written comments from individual school committee members available to the public. The school committee must deliberate the professional competence of any individual in open session, in accordance with G.L. c. 39, § 23B (1), but draft or final written performance evaluations are exempt from disclosure, pursuant to the public records law, G.L. c. 66, § 10, and G.L. c. 4, § 7, Twenty-sixth (c )." [emphasis added]

    When it comes to reading the law, I'm just a layperson--I'd appreciate the perspective of a lawyer on the SJC ruling and its implications.

  6. #36
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    Default

    John's quote below is from the thread on discussion board features and anonymity--this thread is a better fit.

    Quote Originally Posted by John Flaherty View Post
    It is intriguing that Jeff D is taking an interest in [discussion board anonymity] however, while carefully avoiding all posts that have anything to do with the great lengths his board went to, and the thousands of dollars of taxpayer money that has been spent defending the position of keeping public documents out of the public eye. When the Town Crier sued and it went through various courts for 5 years and utltimately these documents were released, only after many, many lines of text were blacked out so that the pubic still could not see much of what was written.
    However else you wish to characterize my position on the School Committee's 2004 evaluation of the Superintendent, "silence" is hardly fair. Besides remarks at numerous public meetings, I authored this commentary in 2005 and more recently started and repeatedly contributed to this Discussion Forum thread. Here's a summary of my thinking.

    1. In my opinion, personnel evaluations are more candid and productive when conducted in private; corporations certainly don't review their CEOs in public, even though shareholders might arguably claim the same right to openness as taxpayers. John's unwarranted smear notwithstanding ("I think that the ongoing behaviour of this school committee and administration represent an abysmal record of transparency and a blatant disregard for the public's right to know"), it is certainly possible to be open without being universally open. The vast majority of the Committee's work is done in public, and that which is not (primarily concerning negotiation and litigation) is legally exempted from both the Open Meeting Law and the Public Records Law.

    2. The law on evaluating a school superintendent is far from clear; the Middlesex Superior Court (MSC) didn't agree with the Middlesex District Attorney (MDA), and the Massachusetts Supreme Judicial Court (SJC) didn't agree with either.

    3. Given (1) and (2), the Wayland School Committee sought to perform its Superintendent evaluation in compliance with the law.

    4. Evaluations tied to salary negotiations may be conducted in private, and the Superintendent's contract at the time specified as such. When the MDA ruled that the 2004 evaluation was not tied closely enough to salary negotiations and requested that the Committee (a) release the draft and final evaluation, (b) release the executive session meeting minutes, and (c) release the individual written evaluations, the Committee promptly complied with (a) and (b).

    5. The Committee disagreed with the MDA's interpretation of the Open Meeting Law with respect to the individual written evaluations in (c) and chose to defend itself. The MSC supported the Committee's decision regarding the individual written evaluations while the SJC did not. Interestingly enough, the SJC's ruling also overturned the MDA with respect to the release of the draft and final evaluation in (a), in effect saying that the Committee was correct in the first place.

    6. The result is a picture of how a school committee should evaluate a superintendent that is less muddled but no more sensible. The Committee's prior practice had been to keep individual written evaluations (unseen by a quorum) private while making the draft and final evaluation public. Now, the Committee will be required to make the individual written evaluations public while keeping the draft and final evaluations private.

    7. Yes, the Committee spent "thousands of dollars of taxpayer money" (about $9,000, as I understand it), a phrase that John appears to spin to make it sound much larger than it is. Over the period in question, taxpayers spent on the order of $200,000,000 on the education of its children. That is, the cost to stand up for its principles was less than 0.005% of the school budget. Put another way, the cost worked out to be about twenty-five cents (one shiny quarter) per household per year.

    8. In releasing the individual written evaluations for 2004, 2005, 2007, 2008, and 2009 (no individual written evaluations were created in 2006), the Committee chose to redact the names of employees other than the Superintendent upon whose performance comments were made. It is not the role of a school committee to evaluate employees whom it has not hired, and the Public Records Law exempts personnel files from being public documents; not wanting to compound its 2004 error, the Committee made a small number of redactions.

    9. "Many, many lines of text" is a mischaracterization that goes far beyond what might even charitably be called spin. In the 2004 and 2005 individual written evaluations (the only ones that I have), there are a total of almost 10,000 words. Of these, a mere 65 words were redacted (0.7%). It baffles me that 0.7% constitutes "much." By the way, of these 65 words, 48 pertained to people whose job performance is not the responsibility of the School Committee to evaluate. The remaining 17 referred to negotiation strategy that remains relevant.

  7. #37
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    Default

    Jeff Baron posted the comments below on Wayland Patch. Rather than continue the off-topic conversation there, I'm choosing to address his points here.

    Quote Originally Posted by Jeff Baron
    1. OK, I will assume you are telling the truth as to your view on the WSC landmark OML violation;
    I'm telling the truth. I'm curious to know why would you think that I'm telling anything other than the truth--I certainly don't have any sort of track record of lying.

    Quote Originally Posted by Jeff Baron
    2. I would much rather see each member's comments than the final draft -- it tells me much more about what's going. Seeing it all would be better, but the outcome was perfectly fine;
    That's a fair opinion, just one with which I don't happen to agree. As I've said previously, I don't think that any part of a performance evaluation should be public, as the knowledge that it will be public naturally changes its content and reduces the usefulness in helping to make improvements.

    Quote Originally Posted by Jeff Baron
    3. Given that the BoS sought counsel on one interaction with the AG and your violation went all the way to the Supreme Court, the cost is surely a ton more. And the $9k is not credible anyway.
    The School Committee's attorney at the time agreed to cap the charge at on the order of $9k. Why is this not credible?

    Quote Originally Posted by Jeff Baron
    Whatever the BoS has incurred in legal expenses can never be compared with what the SC incurred in legal expenses simply because the SC’s and the town's accounting record is ABYSMAL! Numbers were simply pulled out of the air during that era to support decisions. For example, in FY’11, the town apparently had no money and 7 teachers were eliminated from the ranks of the WPS. That same fiscal year, we closed the books with over $4M in SURPLUS free cash --- AND we unknowingly made a payment of $3M to OPEB! How’d that happen!? $7M we didn’t even know we had?--- in one fiscal year!--- and teachers supposedly had to be axed? Makes any number from then or before highly suspect.
    No one is debating that our town's past accounting systems left a lot to be desired. For all I know, that may still be the case. It makes no sense, however, to go on to say that any number from that era is "highly suspect." With respect to school budgets, for instance, there's considerable documentation of the overall amounts, the breakdowns, and individual expenditures of funds including legal costs.

    The School Committee's attorney agreed to cap costs at on the order of $9k (I don't know the exact amount). If you have backup to suggest that a different amount was spent, please provide it.

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