Results 1 to 2 of 2

Thread: The Open Meeting Law: just what is it exactly that constitutes "deliberation?"

  1. #1
    Join Date
    Nov 2005
    Location
    Wayland MA
    Posts
    1,431

    Default The Open Meeting Law: just what is it exactly that constitutes "deliberation?"

    As far back as I've been aware of the OML (1995, when I joined the Finance Committee), it has been fairly consistent that a deliberation among a quorum of a board or subcommittee has to take place in open meeting. What's changed, however, has been the definition of "deliberation."

    Until the major OML revision that went into effect on July 1, 2010, the OML wasn't as clear as it might have been with respect to out-of-meeting communications. A lay-reader of the OML (of which I am most definitely one) might reasonably have interpreted "deliberation" to mean a back-and-forth exchange of opinion.

    So, a committee member sending an opinion to a quorum might not have been a deliberation (at least as far as the letter of the OML was concerned). As soon as another member replied (either to all or just to the original sender), however, there was no doubt that a violation had taken place.

    With the changes effective in July of 2010, the OML explicitly forbid the original send of an opinion to a quorum even if there was no response. (The fact that the AG's office saw fit to make this interpretation explicit suggests that they may have agreed that the prior wording was at best unclear.)

    This ruling put boards in something of a bind. For instance, were they allowed to discuss a matter in open meeting, agree to have one member write a letter to the newspaper, and have that member send the letter to the rest of the board to review before discussing again in open meeting? By the new letter of the law, apparently not.

    To my knowledge, nothing has changed since July of 2010. Yet, according to a recent article in the online version of the Wayland Town Crier ("AG dismisses 2 complaints, rules 3rd is valid in Wayland," Jan 28, 2013), it is now apparently okay for a board member to email at least some kinds of opinions to a quorum of the board. And the AG's office isn't just referring to "harmless" opinions such as a letter to the editor based on a prior public discussion. No, the AG now appears to be allowing a board to circulate something as "weighty" as a department head draft evaluation. (Note that based on a ruling by the Supreme Judicial Court at the end of 2009, "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 ).")

    It would be helpful if the AG's office clarified exactly what does and does not constitute a "deliberation"--specifically regarding communications outside of public meeting--with respect to the Open Meeting Law.

  2. #2
    Join Date
    Nov 2005
    Location
    Wayland MA
    Posts
    1,431

    Default

    Wayland Patch adds more language ... but not clarification ... from the AG. (Note: I'm taking exception with the Attorney General's office and NOT Wayland Patch--the latter's coverage, like that of the Town Crier, is excellent.)

    Quote Originally Posted by Patch
    According to a letter published on the AG's website, Wayland's Board of Selectmen did not violate the OML by circulating via email the draft of a proposed press release, which was the substance of a complaint submitted by Harris on Jan. 30, 2012.

    The AG's ruling states that the office generally recommends against a quorum communicating via email between meetings "to avoid even the appearance that members are deliberating outside an open meeting."

    The ruling continues, however, to state that the "law excludes from the definition of 'deliberation' certain administrative tasks such as 'the distribution of a meeting agenda' and 'the distribution of reports or documents that may be discussed at a meeting."

    The AG did recommend that "administrative tasks" be generally reserved for distributing meeting agendas, scheduling meetings and distributing documents drafted by non-members in order to avoid the perception of deliberation outside a public meeting.
    I don't see how the AG's office is being even remotely helpful when it allows the distribution of reports or documents (presumably, including those written by and containing opinions of board members), then turns around and immediately recommends (but not requires, apparently) that such documents be from NON-members.

    Quote Originally Posted by Patch
    In a similar ruling, the AG found that the board did not violate the OML regarding a second complaint filed by Harris on May 29, 2012.

    Harris' complaint alleged that the board, "privately engaged in the deliberation of the town administrator's professional competence through the exchange of written communications prior to an open meeting held March 28, 2012."

    The AG's response, however, found that this email exchange was again "administrative" and acceptable within the lines of the OML.

    In this case, the AG responded that it was appropriate for "evaluations to be a permissible and necessary function for public bodies to conduct ahead of meetings, so long as discussion of the evaluations occurs during an open meeting."
    The AG's use of "public bodies to conduct" here is cloudy at best. The OML and subsequent judicial rulings have been consistently clear that a board may NOT conduct an evaluation outside of a public meeting.

    Based on the ruling in the first case above, it would seem that a board member may distribute an evaluation (which is not a public document) via email to a quorum of the board. And given the AG's ruling here in this second case, it would seem that members of a board may send individual evaluations (opinions) to a single (non-quorum) member such that said single member might aggregate them into a composite evaluation. I wouldn't call this conducting an evaluation, I would call it drafting or creating an evaluation.

Bookmarks

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •