Northampton Housing Authority Oml Violation

THE COMMONWEALTH OF MASSACHUSETTS OFFICE OF THE ATTORNEY GENERAL

ONE ASHBURTON PLACE

BOSTON, MASSACHUSETTS 02108

MAURA HEALEY ATTORNEY GENERAL

TEL: (617) 727-2200 ww\v.mass.gov/ago

December 28, 2015

OML 2015- 198

Cara Clifford Executive Director Northampton Housing Authority 49 Old South Street, Suite 1 Northampton, MA 01060

RE: Open Meeting Law Complaint

Dear Ms. Clifford:

This office received three complaints alleging that the Board of Directors of the Northampton Housing Authority (the "Board") violated the Open Meeting Law, G.L. c. 3OA, §§ 18-25.' The first complaint was filed with the Board on August 18 by Paula Valencik, and alleges that the Board met in executive session for an improper purpose on August 10 and that the notice for that meeting was insufficiently detailed.2 The Board responded to this complaint in a letter dated September 15.3 This complaint was filed with our office on September 21.4 The second complaint was filed with the Board on August 30 by David Adamson, and makes the same allegation as the first complaint. This complaint was filed with our office on October 13. The third complaint was filed with the Board on August 30 by David Adamson, and alleges that the Board deliberated outside of a noticed meeting on or before August 10. This complaint was filed with our office on October 13. The Board responded to both of Mr. Adamson's complaints in a letter from Authority Executive Director Cara Clifford,5 dated September 15.

With respect to the first two complaints, we find that the Board violated the Open Meeting Law as alleged. We note that the Board acknowledged its violation prior to the complaints being filed and took remedial action to nullify its improper actions. With respect to the third complaint, we find that the Board did not violate the Open Meeting Law.

1 A fourth complaint, filed at the same time, is addressed in a separate declination letter. 2 All dates refer to the year 2015. 3 We remind the Board that the Open Meeting Law requires that within 14 business days after receiving a complaint, unless an extension has been granted by the Attorney General, the public body shall review the complaint's allegations; take remedial action, if appropriate; and send to the Attorney General and the complainant a copy of the complaint and a description of any remedial action taken. G.L. c. 30A, § 23(b); 940 CMR 29.05(5). 4 The complaint also alleges that the Board has failed to follow the Northampton Housing Authority's Personnel Policy in reorganizing the Authority. Because this allegation does not pertain to a violation of the Open Meeting Law, we decline to review it. 5 For purposes of clarity, we will refer to you in the third person.

In reaching this determination, we reviewed the complaints filed with the Board, the Board's responses, and the complaints filed with our office. We also reviewed the notices for the Board's August 10 and August 31 meetings. We reviewed the minutes of the Board's August 10 and August 31 open meetings. We reviewed the executive session minutes of the Board's August 10 meeting. Finally, we spoke by telephone with Paula Valencik on October 22, with Davis Adamson on November 12, and with Cara Clifford on December 2.

FACTS

1. Mr. Adamson's Request for Compensatory Time.

We find the facts as follows. On August 10, Authority employee David Adamson submitted a written request to Authority Executive Director Cara Clifford to use accrued compensatory time. Later that day. Executive Director Clifford sent Mr. Adamson an email in which she wrote that he was ineligible for compensatory time, and that the employee manual was being revised to reflect this policy. Additionally, she wrote, "[p] lease know prior to implementation; I have discussed this with the Board to which [Board Chair Jeffrey Jones] approved." In speaking with Executive Director Clifford by telephone, she confirmed to our office that she did not speak with the full Board regarding that policy, but rather only with Board Chair Jeffrey Jones, who she understood to have the authority to approve the policy on behalf of the Board,

2. The Board's August 10 Executive Session.

The Board posted notice for a meeting on August 10, listing 11 anticipated discussion topics. The notice did not list an executive session topic. On August 10, the Board held a meeting during which it entered into executive session. Although the Board took a roll call vote to enter executive session, it did not state a purpose for that executive session. During the executive session, the Board met with Executive Director Clifford.6 The Board discussed with Executive Director Clifford its directive to seek cost savings. Executive Director Clifford presented to the Board her proposed restructuring of the organization chart. The Board discussed with Executive Director Clifford budgetary concerns, cost savings, reevaluation of positions, new job descriptions, staff training, and restructuring, including elimination of staff positions. The Board also discussed a policy under which newly created positons would be offered to eliminated staff. Following that discussion, the Board voted to authorize the Executive Director to proceed with the restructuring. The Executive Director then implemented the restructuring, eliminating five employee positions, including those held by complainants Paula Valencik and David Adamson.

On August 18, the Executive Director sent a letter to the Division of Open Government stating that the Board's August 10 meeting violated the Open Meeting Law. The letter explained that the Board failed to properly notice the meeting, and that the Board entered into executive session for an improper purpose. To address the violations, the Board publicly released the executive session minutes, pledged to attend Open Meeting Law trainings conducted by the

6 The Board publicly released the minutes of its August 10 executive session on or about August 21.

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Division of Open Government, comply with the notice requirements for future notices, and "[t]ake any and all other action the Attorney General's Office deems necessary and appropriate."

On August 21, Executive Director Clifford sent Ms. Valencik a letter, writing that "I am writing to correct and clarify your employment status. You are currently on paid administrative leave while the organizational and personnel needs of the Northampton Housing Authority are being assessed. Your compensation and benefits are unchanged during this period of administrative leave. This determination is not disciplinary in nature. Please note that this notice supersedes any prior verbal or written notice with regard to your employment status." The Authority similarly reinstated Mr. Adamson and placed him on administrative leave.

The notice for the Board's August 31 meeting included the following open session topics: "1. Address issues arising from Open Meeting Law violations from August 10, 2015 Board meeting," and "2. Reorganization Plan." During its August 31 meeting, the Board formally rescinded the actions taken during its August 10 executive session, including the Authority reorganization. The Board then approved the reorganization in the same meeting, following a brief open session discussion. On September 3, Executive Director Clifford sent Ms. Valencik a letter informing her that her employment would be terminated on September 16. The Authority terminated Mr. Adamson on September 24.

DISCUSSION

1. The Board did not Deliberate Outside of a Noticed Meeting Regarding its Personnel Policy.

The third complaint filed with the Board alleges that the Board deliberated outside of a noticed meeting on or before August 10. A public body may not deliberate outside of an open meeting. G.L. c. 30A, §§ 18, 20. "Deliberation" is defined as "an oral or written communication through any medium, 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 members of the public body, unless otherwise provided in a general or special law, executive order or other authorizing provision." Id.

On August 10, Authority employee David Adamson requested to use accrued compensatory time. Executive Director Clifford denied this request, citing a new policy, and writing to him that the Board had approved the new policy. In fact. Executive Director Clifford spoke only with Board Chair Jeffrey Jones, who she understood to have the authority to approve the policy. She confirmed with our office that she did not discuss this policy with any other Board members. Because a quorum of the Board did not meet outside of a noticed meeting to discuss this policy, we find no violation of the Open Meeting Law with respect to this allegation.

2. The Board Violated the Open Meeting Law by Failing to Notice its August 10 Executive Session.

The Open Meeting Law requires that public bodies post notice of every meeting, and include in the notice "the date, time, place of such meeting and a listing of topics that the chair

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reasonably anticipates will be discussed at the meeting." G.L. c. 30A, § 20(b). Public bodies are required to list topics in a meeting notice with "sufficient specificity to reasonably advise the public of the issues to be discussed at the meeting." 940 CMR 29.03(1 )(b). We generally consider a topic to include sufficient specificity when a reasonable member of the public could read the topic and understand the anticipated nature of the public body's discussion. See OML 2012-10.7 If a public body anticipates entering into executive session during a meeting, then it must list that executive session topic in its meeting notice, and include all subjects that may be revealed without compromising the puipose for which the executive session was called. See G.L. c. 3OA, § 21(b)(3); OML 2014-140.

The notice for the Board's August 10 meeting failed to identify any executive session topic. In its August 18 letter to the Attorney General, the Board acknowledges this violation, and writes that the "posted agenda failed to include a statement that the board would be asked to go into Executive Session regarding the Authority's interest in reorganizing the current organizational chart." As the Board has already conceded, this violated the Open Meeting Law.

3. The Board Violated the Open Meeting Law by Entering into Executive Session for an Improper Puipose During its August 10 Meeting.

A public body may enter into executive session for any of 10 purposes. G.L. c. 30A, § 21(a). The public body may not discuss any topics in executive session that do not fall within one or more of the 10 purposes. See District Attornev for Plymouth District v. Board of Selectmen of Middleborough. 395 Mass. 629, 633 (Mass. 1985). One such purpose is to "discuss the reputation, character, physical condition or mental health, rather than professional competence, of an individual, or to discuss the discipline or dismissal of, or complaints or charges brought against, a public officer, employee, staff member or individual." G.L. c. 30A, § 21(a)(1) ("Puipose 1"). If a public body enters executive session under Purpose 1, the individual discussed in the session must be notified in writing by the public body at least 48 hours prior to the proposed executive session, and the individual must be afforded the following rights: 1) to be present at such executive session during deliberations which involve that individual; 2) to have counsel or a representative of his or her own choosing present and attending for the purpose of advising the individual and not for the purpose of active participation in the executive session; 3) to speak on his or her own behalf; 4) to cause an independent record to be created of the executive session by audio-recording or transcription, at the individual's expense; and 5) to request that the session be open. See id.; OML 2011-39.

During its August 10 executive session meeting, the Board discussed with Executive Director Clifford budgetary concerns, cost savings, reevaluations of positions, new job descriptions, staff training, restructuring, the elimination of staff positions, and new policies. Following that discussion, the Board voted to authorize the Executive Director to proceed with the restructuring of the organization chart. This discussion concerned organization and budget, topics that do not fit within any of the ten executive session puiposes. To the extent that the Board discussed the dismissal of specific employees as a result of the elimination of their positions, the Board could have entered into executive session under Puipose 1, but would have

7 Open Meeting Law determinations may be found at the Attorney General's website, www.mass.gov/ago/openmeeting;.

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had to provide those employees with the notice and the procedural rights guaranteed by G.L. c. 30A, § 21(a)(1). That did not occur. The Board has acknowledged that its discussion should not have occurred in executive session. In response to the complaint, during its August 31 meeting, the Board formally rescinded the actions taken during its August 10 executive session and publicly released the executive session minutes. Accordingly, while we find that the Board violated the Open Meeting Law by holding this discussion behind closed doors, we find that the Board took appropriate remedial action in response to the complaint.

We find that the Board violated the Open Meeting Law by meeting in executive session for an improper purpose on August 10 and that the notice for that meeting was insufficiently detailed. We find no evidence that the Board deliberated outside of an open meeting prior to its August 10 meeting. We note that the Board has acknowledged its violations in response to the complaints, and has rescinded the action taken during its improper August 10 executive session. In addition to the action already taken by the Board, we order the following:

1) Immediate and future compliance by the Board with the Open Meeting Law. We caution the Board that a similar future violation may be considered evidence of an intentional violation of the Law.

2) Each member of the Board must attend an Open Meeting Law Training or Webinar conducted by the Attorney General's Office, or review the Open Meeting Law Training video available at the Attorney General's website, if he or she has not done so since the first complaint was filed on August 18. Each member must certify, using the attached form, his or her compliance with this order within 60 days following the Board's receipt of this determination.

We now consider this matter closed. Please be advised that this letter does not resolve any other complaints that may be pending with this office or with the Board. Please feel free to contact our office at 617-963-2540 if you have any questions regarding this letter,

CONCLUSION

Sincerely,

Jonathan Sclarsic Assistant Attorney General Division of Open Government

cc: Northampton Housing Authority Board of Directors Paula Valencik David Adamson

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Certification of Compliance with Order

I, , hereby certify that I have read the Attorney General's (print name)

determination number OML 2015-198 and, pursuant to the order therein, I attended an Open

Meeting Law training or webinar provided by the Attorney General, or reviewed the Attorney

General's Open Meeting Law Training Video.

Date of Training

Member, Northampton Housing Authority Date

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This determination was issued pursuant to G.L. c. 30A, § 23(c). A public body or any member of a body aggrieved by a final order of the Attorney General may obtain judicial

review through an action filed in Superior Court pursuant to G.L. c. 30A, § 23(d). The complaint must be filed in Superior Court within twenty-one days of receipt of a final

order.

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