town of adams: open meeting law finding

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THE COMMONW EALTH OF MASSACI- IUSETTS

OFFICE OF THE ATTORNEY GENERALONE ASHBURTON PLACE

BOSTON, MASSACHUSETTS 02108

(617) 727-2200

(617) 727-4765 TTY

www.mass.gov/ago

M A R T H A C O A K L E Y

ATroRNEY G E N E R A L

October 19, 2011

OML 2011- 40

D. M. Moschos

Mirick O'Connell100 Front St.

Worcester, MA 01608

RE: Open Meeting Law Complaint

Dear Attorney Mochos:

This office received a com plaint from M s. Paula Melville dated Ap ril 6, 2011 alleging

that the Adam s Board of Selectmen (the "Board") and the Adams Town Administrator ' violated

the Open M eeting Law, G.L. c. 30A, §§ 18-25. Specifically, the com plaint alleges that on

February 28, 2011, the Board "improperly held an open meeting and improperly discussed

certain matters in open session," and that the Board and Tow n Adm inistrator, "conducted Tow n

business without notice of and without an open meeting and/or executive session." Hercomplaint was filed w ith the Board on M arch 6, 2011, and the Board responded to the com plaint

on March 25, 2011.

We find that the Board did not violate the Open M eeting Law . In reaching this

determination, we reviewed the M arch 6, 2011 com plaint and attached documents filed with the

Board, the Board's March 25, 2011 response to the complaint, and the April 6, 2011 com plaint

filed with our office. Additionally, we review ed the meeting no tice and the minutes of the

Board's February 28, 2011 em ergency m eeting. We also reviewed an undated letter from the

AFSCME Council 93 Staff Representative to the Town's labor counsel. Finally, we reviewedwritten statements provided by the B oard mem bers (other than the complainant) to our office in

response to a June 14, 2011 r equest.

FACTS

We n ote that the Town Adm inistrator is not a m ember of the B oard, and is thus not subject to the Open Meeting

Law. W e only consider the allegations against the Town Adm inistrator to the extent they charge that he facilitated

unlawful deliberations between and am ong a quorum of Board m embers.

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The facts are mostly undisputed, though we n ote where the complainant and the Board

disagree. The mem bers of the Board at the time the complaint was filed include Chairman

Michael Ouellette, Vice-Chairman A rthur Harrington, Jason Hn atonko, Scott Nichols, and the

complainant, Paula Melville.

On or about February . 25, 2011, the Adams Tow n Adm inistrator, Jonathan Butler,

provided courtesy copies of his proposed annual budget to the mem bers of the Board of

Selectmen. The proposed b udget was provided to the Board m embers fof their review ahead o f

the regularly scheduled Mar ch 1, 2011 Board m eeting. At that meeting, the budget wo uld be

officially presen ted to the Board and w ould becom e public. Until that time, the Town

Adm inistrator considered the budget to be a confidential document.

On the morning of February 2 8, 2011, Ms. M elville visited the Town's Council on Aging

Department and Social Day progr am located at the Adams Com munity Center. What exactly

occurr ed during this visit rem ains a point of contention. The Board asse rts that Ms. Melville

informed the Council on Aging director and two administrative assistants of the collective

bargaining contents of the proposed b udget relevant to their department. The Board further

asserts that Ms. M elville inform ed the tw o adm inistrative assistants that they wo uld be laid off if

the proposed budget was approved. Both administrative assistants are members of a collective

bargaining unit represented by AFSCM E, Council 93, AFL-CIO, Local 204 (the "Union"). The

Board notes that on February 16, 2011, the Town an d the U nion specifically agreed that the

Town Adm inistrator would m eet, in the presence of a union representative, with any individuals

in the bargaining unit who might be laid off as a result of the Town Administrator's proposed

budget, prior to the budget's public release.

In her com plaint, Ms. Me lville acknow ledges that she visited the Town's Coun cil on

Aging Department and Social Day program the morning of February 28, 2011. She denies that

she inform ed any em ployees that they would be laid off Ms Melville states that she was there

to, "confirm with the department head that the department's budget proposed cutting one part-

time position and two full-time positions at the same time anothe r full-time po sition be created."Ms. M elville explains that she asked a part-time staff mem ber w hether she had seen the proposed

town budget. When the staff member responded "no," Ms. Melville told her, "You won't be

happy. I know I'm not." After that exchange, Ms. Melville states that she spoke with the

Council on A ging director and a full-time staff mem ber, and explained that "sweeping changes

are recom mended in the budget and that she found them totally unacceptable."

Following Ms. Melville's visit to the Adams Community Center, the Director of the

Council on A ging immediately called the Tow n A dministrator, Jonathan Butler, and relayed to

him w hat had occurred. Mr. B utler w as concerned that Ms. M elville's actions may have violated

the Town's February 16, 2011 agreement w ith the Union. Mr . Butler then notified Board

Chairman M ichael Ouellette and Vice-Chair Arthur Harrington as to w hat had been reported bythe Council on Aging director. The two Board mem bers met at Town H all with the Town

Adm inistrator that afterno on to discuss Ms. Melville's alleged actions and the possible

consequences to the Town. They consulted outside counsel, and were advised to hold an

emergency meeting to address the issue. Chairman Ouellette and Vice-Chairman H arrington

decided to convene an emergency meeting for that evening at 6:30 p.m. The Tow n's outside

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counsel was asked by either the Chair or the Tow n Adm inistrator to prepare documen ts for the

emergency m eeting.

The Town Adm inistrator then informed e ach Board me mber of the time and location of

the emer gency m eeting, and the general purp ose for the me eting. The Board states that it tried to

contact Ms. Melville by em ail to inform her of the emergency meeting that evening but did not

receive a response. It is unclear w hether the Town A dministrator or any other To wn Officials

tr ied to reach M s. Melville by telephone.

The Board posted notice at 3:33 p.m. on February 28, 2011 for a 6:30 p.m. emergency

Board m eeting. A deputy from the Berkshire County Sheriff 's Office served Ms. M elville with a

copy of the emerg ency m eeting notice at her home at approximately 4:25 p.m. The Deputy

Sher iff certified that he delivered the notice to her in per son.

The Board convened its emergency m eeting at 6:35 p.m. on February 28, 2011. Ms.

Melville was not present for the meeting. The entire meeting occurred in open session. The

Board considered four issues relating to Ms. Melville's alleged conduct and proposed actions,

which included publicly disavowing her statements, referring her to the State Ethics

Comm ission, directing her not to discuss Town business with Town employees without

permission of the Town A dministrator, and directing Ms. Melville not to enter Town department

premises without express prior permission of the Town Administrator. Wr itten m otions covering

each issue were prepared by outside counsel in advance of the meeting. The Board discussed

and approved each motion. The signed resolutions were publicly released at the end of the

meeting.

DISCUSSION

Ms. M elville makes a n umber of allegations against the Board, and w e w ill address each

in turn. It appears, how ever, that the Board acted ver y carefully and deliberately to quickly

address a situation that required immediate attention and action by the Board. The Board Chair

acted appropriately once notified by the Tow n A dministrator of a potential problem that could

have resulted in legal action against the Town.

The Open Meeting Law requires that, "except in an emergency...a public body shall post

notice of every m eeting at least 48 hours prior to such mee ting, excluding Saturdays, Sundays

and legal holidays," and every n otice shall include, "the date, time and place of such m eeting and

a listing of topics that the chair reason ably anticipates will be discussed at the meeting." G.L. c.

30A, § 20(b). An "emer gency" is defmed as "a sudden, generally unexpected occurrence or set

of circumstances demanding immediate action." Id. at § 18. In an emergency, "a public body

shall post notice as soon as reasonab ly possible prior to such me eting." Id. at § 20(b).

The O pen M eeting Law further requires that a public body conduct all deliberations

during a properly posted meeting. G.L. c. 30A, §§ 18, 20(a). A "deliberation" is defmed in

relevant part as, "an oral or w ritten com munication through any m edium, including electronic

mail, between or among a quorum of a public body on any public business within its jurisdiction;

provided, how ever, that 'deliberation' shall not include the distribution of a meeting agenda , [or]

scheduling information." Id. at §18. A "meeting" is defined in relevant part as "a deliberation

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by a public body with respect to any matter within the body's jurisdiction." Id. A "quorum" is

defined as, "a simple majority of the members of the public body, unless otherwise provided in a

general or special law, executive order or other authorizing provision."

Ms. M elville alleges that the Board, "could not have properly convened to take any

action, including investigation of the allegations" against her at its Febru ary 28, 2011 m eeting.

She additionally alleges that the inform ation which form ed the basis of the allegations against

her was "conveyed to the four named individual Board mem bers by the Town Administrator and

not in a con vened m eeting in closed session but in individual or group m eetings and/or

comm unications between and among the four named Board membe rs and the Town

Administrator," and asserts that it was improper to discuss "certain matters in open session."

She further alleges that the Board "hired an outside attorney w ho prepared docum ents making

charges against Melville." She alleges that the Board members discussed and approved directing

the Berkshire County Sheriff to serve Ms. Melville with the emergency meeting notice. Finally,

she alleges that the Board mem bers approved disseminating docum ents to local news m edia prior

to the February 28, 2011 emergency m eeting.

1. The Board Did Not Violate the Open Meeting Law by C onvening an Em ergency

Meeting on February 28, 2011.

Ms. Melville's complaint essentially alleges that the Board members engaged in an

unlawful deliberation by discussing the allegations made against her prior to holding a properly

noticed meeting. We find no evidence to support this allegation. Board Chairman MichaelOuellette m ade the decision to call the emergency meeting after conferring w ith special counsel,

with Town A dministrator Jonathan Butler, and with Board Vice-Chairman A rthur Harrington.

This discussion occurred between two of the five Board m embers. A "deliberation" is "an oralor wr itten com munication through any med ium, including electronic mail, between or among a

quorum of a public body on any public business within its jurisdiction." G.L. c. 30A, §18. A

"quorum" is a simple majority of the Board, in this case three out of five members. Id. Because

Chairman Ou ellette conferred with only one other Board mem ber prior to making the decision to

hold an emerg ency m eeting, the discussion did not reach a q uorum, and thus w as not a

deliberation. The other Board m embers confirmed in w ritten statements that they w ere not part

of this discussion prior to the m eeting.

Once C hairman Ouellette made the decision to convene an emer gency meeting, Town

Administrator Jonathan Butler called the other Board m embers with the scheduling information.

Ms. M elville accuses the Tow n Adm inistrator of essentially facilitating a serial deliberation

among a quorum of the Board mem bers. However , the definition of "deliberation" specifically

excludes communications involving "scheduling information." G.L. c. 30A, § 18. Here, it was

appropriate for the Town Adm inistrator to contact the Board m embers, tell them details of the

meeting including the time and location, as well as the general purpose.

Ms. Me lville claims that the Board "improperly held an open m eeting" on February 28,

2011 . It is not clear from the com plaint whether M s. Melville alleges that there was no valid

emergency to justify the February 28, 2011 meeting. Assuming that was her concern, we find

that, whether or n ot the allegations against Ms. M elville w ere true (and we make no finding

regarding those allegations) the Board was justified in taking immediate action because of the

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harm that could result if the allegations were tru e. 2 The emer gency me eting was the result on a

generally unexpected occurrence, n amely the alleged incident at the Council on Aging

Department that very mo rning. An em ergency m eeting w as, therefore, appropriate.

2. The Board d id Not Violate the Open Meeting Law by Holding its Deliberations at

the February 28, 2011 M eeting in Open Session.

Ms. M elville claims that the Board "improperly held an open m eeting and improperly

discussed certain ma tters in open session." Ms. Melville goes on to charg e that the "Boar d didnot discuss sensitive issues in closed session, and it had no waiver fr om M elville to allow the

discussion to be in open session."

Ms. Melville objects to the meeting being held in open session. The Open Meeting Law

states that a public body "may m eet in executive session" for one of 10 enum erated purposes.

G.L. c. 30A, §21(a) (emphasis added). A public body is never required by the Open Meeting

Law to enter executive session. Other state laws m ay require a public body to consider a m atter

in executive session, but we pr ovide no opinion a bout the applicability of any other statute in this

matter. The Board did not n eed a w aiver or con sent from M s. Melville to discuss allegations

against her in open session. The Board w ould only need a waiver from Ms. Melville had they

voted to enter executive session under Purpose 1 w ithout providing Ms. M elville 48 hour swritten notice. See G.L. c. 30A, § 21(a)(1). However, the Board never entered executive

session.

3. We Find No Evidence that the Board Engaged in D eliberations Outside of its Posted

Meeting on February 28, 2011.

Ms. Me lville alleges that the Board engaged in comm unications between and amon g the

quorum to hire outside counsel, direct counsel to produce documents for use at the February 28,

2011 em ergency m eeting, direct a Berkshire Coun ty Sheriff to serve her w ith notice, and to

release certain docum ents to the local news media. After reviewing statements by the Board

mem bers provided to this office, we find no evidence that any deliberations occurred outside ofthe posted February 28, 2011 em ergency m eeting. The Board Chairman an d Vice-Chairman did

meet w ith the Town Adm inistrator, and together they decided to contact outside counsel.

Counsel had already been retained for ongoing labor matters, therefore the Board Chairman did

not act unilaterally to retain outside counsel. The other d ecisions that Ms. Melville alleges wer e

made between and among the quorum appear to have been made by the three officials (Boaxd.

mem bers Ouellette and H arrington, and Town Adm inistrator Butler) along w ith outside counsel.

The three officials asked counsel to prepare docum ents for the emergen cy meeting and to serve

notice on Ms. Melville through the Berkshire County Sheriff s office. The other two Board

mem bers wer e not part of these discussions. They wer e invited to participate in the emer gency

meeting. Because these discussions and decisions involved less than a quorum, no deliberation

2 This was not a hypothetical harm . In fact, the Union se nt an undated letter to the Town's labor co unsel following

the February 28, 2011 m eeting stating their concern that, "a mem ber of the Adam s Board of Selectmen, Paula

Melville, approached AFSCME m embers em ployed in the Adams Council on Aging and announced that they were

going to be laid off... the Un ion would have had no c hoice but to file a Charge of Pr ohibited Practice with the

Division of Labor Relations. However, it has also come to the attention of AFSCM E Council 93 that the Adams

Board of Selectmen immediately met to disavow the actions taken by Ms. Melville. AFSCME appreciates the

concern the Boar d has with present and continuing labor relations."

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occurred.

The Board mem bers acknowledge that Board member Jason Hnatonko stopped by the

Town Hall while the Board Chairm an and Vice-Chairman w ere discussing the allegations against

Ms. Melville. Mr. Hn atonko had a prev iously scheduled lunch with the Town A dministrator,

Jonathan Butler. Mr. Butler told Mr. H natonko that he was unable to m ake the lunch because of

an issue that had come up relating to M s. Melville. All Mr. Hn atonko w as told was that there

might be an emergency meeting scheduled for that evening. He did not par ticipate in any of the

discussions. Mr. Harrington also states that he left when Mr. Hnatonko arrived to avoid aquorum. A public body may not engage in a serial comm unication whereby a quorum

comm unicates in a non -contemporaneous m anner outside of a meeting, on a particular subject

matter w ithin the public body's jurisdiction. See McC rea v. Flaherty, 71 M ass. App. Ct. 637

(2008). It does not appear a serial deliberation occurred here, because M r. Hnatonko w as onlyinformed of the possibility of a future emergen cy m eeting, and did not participate in any

substantive discussion.

Ms. Melville alleges that the Board engaged in deliberation by agreeing to release

documents r egarding the allegations against Ms. M elville to the local new s me dia prior to the

Board's February 28, 2011 em ergency m eeting. The Board denies that it released any

documents related to the allegations against Ms. Melville prior to the February 28, 2011emergency meeting. We find no evidence that Board released these documents prior to the

meeting, nor do we find any evidence that there was any discussion between and among a

quorum o f the Board prior to the mee ting regarding release of such docum ents.

CONCLUSION

We find that the Board w as justified in holding an emerge ncy m eeting on February 28,

2011 and followed the proper steps to post notice ahead of the meeting. We find no evidence

that a quorum of the Board eng aged in deliberation prior to the emergency m eeting. We also

find no evidence that the Town Administrator facilitated a serial communication between a

quorum o f the Board prior to the Board's February 28, 2011 emergen cy meeting. We did notreview, and make no finding regarding, the un derlying allegations against Ms. M elville.

We appreciate the cooperation of the Board during this investigation. We now consider

this matter closed. Please contact me if you have any q uestions regar ding this letter.

Sincer ly,

onathan Sclarsic

Assistant Attorney G eneral

Division of Open Governm entPh: 617-963-2045

cc: Paula Melville

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town of adams: open meeting law finding

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