Boelter v. Board of Selectmen of Wayland

NOTICE: All slip opinions and orders are subject to formal

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SJC-12353

MARY ALICE BOELTER & others1 vs. BOARD OF SELECTMEN OF WAYLAND.

Middlesex. December 5, 2017. - April 5, 2018.

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

Kafker, JJ.

Open Meeting Law. Municipal Corporations, Open meetings,

Selectmen. Moot Question. Attorney General.

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:

1 Dorothy J. Dunlay; Kent E. George; Stanley U. Robinson,

III; and Lois Voltmer.

2

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.

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

3

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

4

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 follow was largely

2 We acknowledge the amicus briefs submitted by the Attorney

General; the Massachusetts Gaming Commission; the Massachusetts

Newspaper Publishers Association; and Hal Abrams, Kim Abrams,

and Karen Silva.

5

consistent with the Attorney General's guidance to public bodies

regarding performance evaluations, which was available on the

Attorney General's Web site:

"May the individual evaluations of an employee be

aggregated into a comprehensive evaluation?

"Yes. Members of a public body may individually

create evaluations, and then submit them to an

individual to aggregate into a master evaluation

document to be discussed at an open meeting. Ideally,

members of the public body should submit their

evaluations for compilation to someone who is not a

member of the public body, for example, an

administrative assistant. If this is not a practical

option, then the chair or other designated public body

member may compile the evaluations. However, once the

individual evaluations are submitted for aggregation

there should be no deliberation among members of the

public body regarding the content of the evaluations

outside of an open meeting, whether in person or over

email."

In accordance with the plan developed at the open meeting,

three of the board members submitted written evaluations to the

chair. Two sent the evaluations by electronic mail (e-mail)

message, and one hand-delivered her evaluation. The chair

created a composite performance evaluation which included the

opinions of those three board members, as well as his own. The

reviews were predominantly positive. The chair then sent the

composite document, along with the three individual performance

evaluations, to each board member, by e-mail, as part of an

agenda packet for the then-upcoming open meeting.

6

At the meeting, the board reviewed and discussed the

composite evaluation and approved it as final. The minutes of

the meeting simply state that the board "praised [the town

administrator] for his availability and responsiveness to the

public, his work ethic, his relationship with town staff, and

his accessibility to board and committee members." The

composite and individual evaluations subsequently were released

to the public.

Approximately two months after the March 28, 2012, open

meeting, George Harris, a registered voter in Wayland, filed a

complaint with the office of the Attorney General, claiming that

the board's procedure for conducting the town administrator's

performance evaluation violated the open meeting law. See G. L.

c. 30A, §§ 18, 20 (a). The open meeting law requires public

bodies to make their meetings open to the public, and provide

advance notice of such meetings, unless the meeting is an

executive session, which can be conducted only for limited

reasons. See G. L. c. 30A, §§ 18, 20.

In January, 2013, the Attorney General responded with a

determination letter finding that the board's conduct had not

violated the open meeting law; Harris's subsequent request for

reconsideration was denied. As judicial review of an Attorney

General's determination in such matters is available only to an

7

aggrieved public body or member thereof, see G. L. c. 30A,

§ 23 (d), Harris did not appeal from the decision.

In February, 2014, the five plaintiffs in this action, who

are also registered voters in Wayland (and who are represented

by Harris) filed a complaint against the board in the Superior

Court, concerning the same facts. The complaint sought a

declaratory judgment and injunctive relief prohibiting the board

from commencing a "private exchange of opinions in deliberating

the professional competence of an individual prior to an open

meeting." The parties filed cross motions for summary judgment.3

The plaintiffs' motion was allowed after a hearing. The

judge concluded that the board had violated the open meeting law

and permanently enjoined it from "deliberating the town

administrator's professional competence by private written

messages before the commencement of a meeting open to the

public." In his decision, although not in the judgment or

amended judgment,4 the judge also declared that "[t]he opinion

from the Attorney General [d]ivision of [o]pen [g]overnment is

3 In civil actions to enforce the open meeting law, "the

burden shall be on the respondent to show by a preponderance of

the evidence that the action complained of in such complaint was

in accordance with and authorized by the open meeting law."

G. L. c. 30A, § 23 (f).

4 The initial judgment was amended to correct an erroneous

statutory reference.

8

stricken." The board appealed to the Appeals Court, and we

transferred the case to this court on our own motion.

2. Discussion. a. Standard of review. We review a

decision on a motion for summary judgment de novo, and thus

"accord no deference to the decision of the motion judge"

(citation omitted). Drakopoulos v. U.S. Bank Nat'l Ass'n, 465

Mass. 775, 777 (2013). "Summary judgment is appropriate where

there are no genuine issues of material fact and the moving

party is entitled to judgment as a matter of law." Boazova v.

Safety Ins. Co., 462 Mass. 346, 350 (2012), citing Mass. R. Civ.

P. 56 (c), as amended, 436 Mass. 1404 (2002).

b. Mootness. At first blush, the plaintiffs' claims

appear moot, because the evaluation of the town administrator

has been completed, and the plaintiffs are no longer able to

affect the procedure the board implemented in 2012 in order to

ensure compliance with the open meeting law. In addition, the

typical remedy for such a violation is public release of the

documents at issue, which the board effectuated after the

asserted violation.5 See District Attorney for the N. Dist. v.

5 The board's mootness argument focuses on the fact that the

town administrator, whose performance evaluation was the subject

of this action, was terminated in August, 2013. The record is

silent as to the reasons for the termination or the outcome of

the administrator's other performance evaluations, if any. The

plaintiffs, however, are not challenging the outcome of this

particular town administrator's performance evaluation, which

9

School Comm. of Wayland, 455 Mass. 561, 572 (2009) (School Comm.

of Wayland).

Nonetheless, dismissal for mootness may be inappropriate if

the situation presented is "capable of repetition, yet evading

review" (citation omitted). Seney, 467 Mass. at 61. See Globe

Newspaper Co. v. Commissioner of Educ., 439 Mass. 124, 127

(2003). "In such circumstances, we do not hesitate to reach the

merits of cases that no longer involve a live dispute so as to

further the public interest" (citation omitted). Seney, supra.

Here, the board's practice is likely to recur; regardless of who

is serving as the town administrator, an evaluation must take

place every year. Moreover, the practice that the board

followed is endorsed by the posted information on the Attorney

General's Web site, meaning that other public bodies might

follow suit.6 At the same time, the issue likely would evade

judicial review, because of the relatively short window involved

in the annual review. See Wolf v. Commissioner of Pub. Welfare,

367 Mass. 293, 298 (1975) (matter capable of repetition and yet

evading review "because the claim of any named plaintiff is

was in fact positive. The town administrator's subsequent

termination thus is irrelevant to the mootness determination.

6 The Attorney General is authorized to interpret and

enforce the open meeting law. See G. L. c. 30A, § 23 (a). She

also may "promulgate rules and regulations to carry out

enforcement of the open meeting law," and "issue written letter

rulings or advisory opinions." G. L. c. 30A, § 25.

10

likely to be mooted by the mere passage of time during the

appeal process").

This matter is also of substantial public importance. By

challenging the board's procedure, the plaintiffs seek to ensure

that all of the town's constituents have access to the decision-

making process of their local government whenever a town

administrator is evaluated. See School Comm. of Wayland, 455

Mass. at 570 ("It is essential to a democratic form of

government that the public have broad access to the decisions

made by its elected officials and to the way in which the

decisions are reached" [emphasis in original; citation

omitted]). We conclude that the motion judge did not err in

declining to dismiss the case for mootness.

c. Open meeting law. General Laws c. 30A, § 20 (a),

provides that, with the exception of executive sessions,7 "all

meetings of a public body shall be open to the public."8 The

7 General Laws c. 30A, § 21 (a), permits a public body to

meet in an executive session in ten limited circumstances, none

of which is applicable here. Notably, these circumstances

include discussion of "the reputation, character, physical

condition or mental health, rather than professional competence,

of an individual" (emphasis added). See G. L. c. 30A,

§ 21 (a) (1).

8 "Except in an emergency, in addition to any notice

otherwise required by law, a public body shall post notice of

every meeting at least [forty-eight] hours prior to the meeting,

excluding Saturdays, Sundays and legal holidays. In an

11

statute defines a "meeting" as "a deliberation by a public body

with respect to any matter within the body's jurisdiction,"

subject to certain exclusions not relevant here. G. L. c. 30A,

§ 18. A "deliberation," in turn, is defined as "an oral or

written communication through any medium, including [e-mail],

between or among a quorum of a public body on any public

business within its jurisdiction." Id.

The statute, however, provides an exemption:

"'deliberation' shall not include the distribution of a meeting

agenda, scheduling information or distribution of other

procedural meeting or the distribution of reports or documents

that may be discussed at a meeting, provided that no opinion of

a member is expressed" (emphasis added). Id. The parties

dispute whether, in circulating the individual and composite

evaluations in advance of the public meeting, the board members'

opinions were "expressed" within the meaning of this exemption.

To resolve this dispute, we must "effectuate the intent of

the Legislature" (citation omitted). Koshy v. Sachdev, 477

Mass. 759, 765 (2017). "We begin with the canon of statutory

construction that the primary source of insight into the intent

of the Legislature is the language of the statute." Id. at 766,

emergency, a public body shall post notice as soon as reasonably

possible prior to the meeting." G. L. c. 30A, § 20 (b).

12

quoting International Fid. Ins. Co. v. Wilson, 387 Mass. 841,

853 (1983).

As an initial matter, the open meeting law does not provide

a meaning for the word "opinion." In ordinary usage, an

"opinion" is "a view, judgment, or appraisal formed in the mind

about a particular matter." Webster's Third New International

Dictionary 1582 (1993). See Boylston v. Commissioner of

Revenue, 434 Mass. 398, 405 (2001) ("We usually determine the

plain and ordinary meaning of a term by its dictionary

definition" [quotation omitted]). The individual and composite

evaluations prepared by the board members and shared with the

quorum doubtless constituted "appraisals" of the town

administrator's performance, and therefore contained board

members' opinions. The question, then, is whether the

circulation of the individual and composite evaluations

containing board members' opinions was permissible since the

opinions were not expressed in the body of the chair's e-mail

message circulating the evaluations but, rather, in the

attachments themselves.

The phrase, "provided that no opinion of a member is

expressed," specifically pertains to "reports or documents that

may be discussed at a meeting." G. L. c. 30A, § 18. See

Deerskin Trading Post, Inc. v. Spencer Press, Inc., 398 Mass.

118, 123 (1986) (general rule of grammatical construction is

13

that "a modifying clause is confined to the last antecedent"

[citation omitted]). The natural reading of the statute is that

two categories are carved out of the definition of

"deliberation." It is not "deliberation" when the materials

distributed to the quorum fall into one of two categories:

first, purely procedural or administrative materials (such as

agendas) and, second, reports or documents to be discussed at a

later meeting, so long as such materials do not express the

opinion of a board member.

The board argues that the phrase, "provided that no opinion

of a member is expressed," only pertains to the distribution of

reports or documents, and not to the reports or documents

themselves. In other words, the board believes that the statute

permits board members to share their opinions with a quorum

provided that the opinions are not expressed in, for example,

the body of an e-mail message or in a cover letter, but only in

attachments to e-mail messages or documents referred to in a

cover letter. This reading would create a loophole that would

render the open meeting law toothless. See ENGIE Gas & LNG LLC

v. Department of Pub. Utils., 475 Mass. 191, 199 (2016) ("The

court does not determine the plain meaning of a statute in

isolation but, rather, . . . [considers] the surrounding text,

structure, and purpose of the Massachusetts act . . ." [citation

and quotations omitted]); Champigny v. Commonwealth, 422 Mass.

14

249, 251 (1996) (reading of statute that causes it to have "no

practical effect" is absurd result, and we "assume the

Legislature intended to act reasonably"). If we were to adopt

the board's view, the board members permissibly could have

conducted an extended communication on any topic without public

participation, so long as they styled their opinions as separate

reports or documents and delivered them without substantive

comment by hand, United States mail, or e-mail messages. This

plainly cannot be what the Legislature intended in adopting the

exemption. See Worcester v. College Hill Props., LLC, 465 Mass.

134, 145 (2013), quoting North Shore Realty Trust v.

Commonwealth, 434 Mass. 109, 112 (2001) (statute "should not be

so interpreted as to cause absurd or unreasonable results when

the language is susceptible of a sensible meaning").

Our reading is consistent with the statute's history.

Previously, the open meeting law defined "deliberation" as "a

verbal exchange between a quorum of members of a governmental

body attempting to arrive at a decision on any public business

within its jurisdiction." See G. L. c. 39, § 23A, as appearing

in St. 1975, c. 303, § 3. In School Comm. of Wayland, 455 Mass.

at 570-571, this court clarified that a "private e-mail exchange

in order to deliberate the superintendent's professional

competence" among Wayland school committee members "violated the

letter and spirit of the open meeting law," because

15

"[g]overnmental bodies may not circumvent the requirements of

the open meeting law by conducting deliberations via private

messages, whether electronically, in person, over the telephone,

or in any other form." We reasoned that the e-mail

communications at issue were not protected, "as we must presume

the substance of the written comments would have been stated

orally at an open meeting in which the superintendent's

professional competence was discussed." Id. at 571-572.

In the same year that School Comm. of Wayland, supra, was

decided, the Legislature broadened the open meeting law's

definition of "deliberation," and affirmed that a "deliberation"

could encompass "any medium," not just verbal communication.

See St. 2009, c. 28, §§ 18, 20, 106 (effective July 1, 2010).

At the same time, however, the Legislature amended the open

meeting law expressly to allow public bodies to distribute some

materials internally in advance of open meetings without

triggering the definition of "deliberation"; this change seems

to have been a response to the practical realities of local

governmental service. By permitting officials to review certain

administrative materials and reports in advance of an open

meeting, the Legislature took steps to ensure that the work of

those officials at the meetings could be focused and efficient.

At the same time, in recognition that the overarching purpose of

the open meeting law is to ensure transparency in governmental

16

decision-making, the Legislature specified that no opinion of a

board member could be expressed in any documents circulated to a

quorum prior to an open meeting. See Revere v. Massachusetts

Gaming Comm'n, 476 Mass. 591, 610 (2017) ("the new version of

the open meeting law does not alter our belief that '[i]t is

essential to a democratic form of government that the public

have broad access to the decisions made by its elected officials

and to the way in which the decisions are reached'" [citation

omitted]). However inefficient this may prove for local bodies

in certain circumstances, this is the balance that the

Legislature has struck.

The board argues that the Attorney General's interpretation

of the open meeting law is entitled to deference and should

prevail. In the determination letter dismissing Harris's

complaint, the Attorney General found that the board did not

violate the open meeting law because "the [c]hair performed an

administrative task exempt from the law's definition of

deliberation." She explained that the chair's "email did no

more than distribute a document to be discussed at the [b]oard's

meeting that night. The email did not contain any advocacy by

[the chair], and it did not invite comment from other [b]oard

members, nor was any comment provided." She went on to explain

that "[a]lthough the document itself may have contained the

opinions of [b]oard members, we find compiling evaluations to be

17

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 Attorney

General conceded, however, that because e-mail communication

among a quorum of public body members, "however innocent[,]

creates at least the appearance of a potential open meeting law

violation . . . our best advice continues to be that public

bodies not communicate over email at all except for distributing

meeting agendas, scheduling meetings and distributing documents

created by non-members to be discussed at meetings, which are

administrative tasks specifically sanctioned under the open

meeting law."

Where, as here, the Attorney General is authorized to

interpret a statute, her interpretation is entitled to

substantial deference, unless it is inconsistent with the plain

language of the statute. Smith v. Winter Place LLC, 447 Mass.

363, 367-368 (2006). In this case, the Attorney General's

characterization is not supported by the plain meaning of the

statute, and therefore is not accorded such deference. While

the Attorney General correctly notes that the e-mail message to

the board to which the evaluations were attached did not itself

contain advocacy or invite comment, this does not alter the fact

that the evaluations themselves contained board members'

opinions. The Attorney General dismisses the fact that the

18

composite evaluation contained board members' opinions by

stating that "compiling evaluations" is a "permissible and

necessary function for public bodies," but the chair did not

simply compile the evaluations in this case -- he circulated the

compiled evaluations to a quorum. We note also that the

Attorney General's determination letter fails to recognize that

the chair sent not only the composite evaluation, but also the

three individual evaluations, to all board members.

We conclude that the board's conduct violated the open

meeting law. The circulated individual and composite

evaluations expressed the opinions of the board members to a

quorum in advance of the public meeting. As the plaintiffs

note, the effect of the circulation of the individual and

composite evaluations was that all five board members were aware

of the opinions of four of the members in advance of the open

meeting; thus, the circulation, in effect, constituted a

deliberation, or a meeting, to which the public did not have

access. Indeed, the motion judge noted that, after the

circulation, and before the open meeting, "it was rather obvious

that the die had been cast as to whether the town administrator

should be continued in his position." The open meeting law was

intended to ensure that the public is able to see for themselves

how such decisions are made. See Revere, 476 Mass. at 610. The

distribution of the individual and composite opinions to the

19

quorum, prior to the meeting, was thus a violation of the open

meeting law. See G. L. c. 30A, § 18. Compare School Comm. of

Wayland, 455 Mass. at 570 ("Open meetings provide an opportunity

for each member of the governmental body to debate the issues

and disclose their personal viewpoints before the governmental

body reaches its decision on a matter of public policy"

[emphasis added]); McCrea v. Flaherty, 71 Mass. App. Ct. 637,

641 (2008) (open meeting law "provides for public access to the

decision-making process when it is in a formative stage, several

steps removed from the eventual result").

The result here would have been different if the board had

made the individual and composite evaluations publicly available

before the open meeting. For example, the board could have

posted the evaluations on its Web site and made paper copies

available for inspection at or about the time that the

evaluations were circulated among a quorum of board members.

Ordinarily, the board is required only to make the minutes of

open meetings, along with "the notes, recordings or other

materials used in the preparation of such minutes and all

documents and exhibits used at the session," available to the

public, upon request, within ten days after an open meeting has

taken place. G. L. c. 30A, § 22 (c), (e). Nothing in the open

meeting law or the public records statute, however, precludes

the board from prior disclosure, at least in these

20

circumstances.9 See G. L. c. 4, § 7; G. L. c. 30A, §§ 18-25;

G. L. c. 66, §§ 1 et seq. If board members wish to circulate

documents containing board member opinions among a quorum in

advance of an open meeting, as here, prior and relatively

contemporaneous public disclosure of those documents, where

permissible, is necessary in order to comply with the open

meeting law and to advance the statute's over-all goal of

promoting transparency in governmental decision-making.

d. Striking the Attorney General's decision. The board

argues that, in his decision granting the plaintiffs' motion for

summary judgment, the judge erred in ruling that "[t]he opinion

from the Attorney General [d]ivision of [o]pen [g]overnment is

stricken."10 We agree. The open meeting law establishes two

separate means by which a party may complain of a violation: an

aggrieved party may seek administrative remedies, for which

9 Under the open meeting law, only the following materials

used in open meetings are "exempt from disclosure to the public

as personnel information: (1) materials used in a performance

evaluation of an individual bearing on his professional

competence, provided they were not created by the members of the

body for the purposes of the evaluation; and (2) materials used

in deliberations about employment or appointment of individuals,

including applications and supporting materials; provided,

however, that any resume submitted by an applicant shall not be

exempt" (emphasis added). G. L. c. 30A, § 22 (e).

10While the judge's decision does not specify which opinion

it purports to strike, in context, it can refer only to the 2013

determination letter dismissing Harris's complaint. The

plaintiffs do not dispute that the decision to strike was

improper.

21

judicial review is available only to a government entity that is

party to the ruling, or file a registered-voter complaint in the

Superior Court, as here. See G. L. c. 30A, § 23 (b), (d), (f).

To the extent that the judge was attempting to reverse the

Attorney General's decision on Harris's administrative

complaint, he had no authority to do so.11 While Harris's

administrative complaint and this action concern the same facts,

Harris's complaint was not before the judge. Nor could it have

been, as Harris was not a member of a public body at the time

that the complaint was filed. See G. L. c. 30A, § 23 (d) ("A

public body or any member of a body aggrieved by any order

issued pursuant to this section [by the Attorney General] may,

notwithstanding any general or special law to the contrary,

obtain judicial review of the order only through an action in

[S]uperior [C]ourt seeking relief in the nature of certiorari").

3. Conclusion. The judgment is affirmed. The purported

"striking" of the Attorney General's determination at the

administrative proceeding is vacated. The matter is remanded to

the Superior Court for such further proceedings as are required.

So ordered.

11The purported striking was not necessary to ensure

uniform resolution of future open meeting law challenges. The

Attorney General has represented that if we affirm the judge's

decision, she will amend her guidance and adjust her

interpretation of the open meeting law when resolving

complaints.