OML 2011-39 Brockton Water Commission

THE COMMONWEALTH OF MASSACHUSETTS

OFFICE OF THE ATTORNEY GENERAL ONE ASHBURTON PLACE

BOSTON, MASSACHUSETTS 02108

MARTHA COAKLEY

ATTORNEY GENERAL

(617) 727-2200 www.mass.gov/ago

October 11, 2011

OML 2011 - 39

Philip C. Nessralla, Jr. City Solicitor City of Brockton, Law Department Brockton City Hall 45 School St. Brockton, MA 02301

RE: Open Meeting Law Complaint

Dear Attorney Nessralla:

This office received complaints filed by Darlene Abramson, Robert Ford, Marianne Silva, and Ayanna Yancey-Cato, dated January 4, 2011, alleging that the City of Brockton Water Commission (the "Commission") violated the Open Meeting Law, G.L. c. 30A, §§ 18-25. The complaints specifically allege that the Commission, "did not follow any of the Open Meeting Law's requirements about letting the public know why the meeting was being called," that it did not cite an allowable purpose for the executive session, and that it did not follow procedures required by executive session Purpose One. The complaints were originally filed with the Commission on or about September 28, 2010, and we received the Commission's response to the complaints on October 19, 2010. Because the Commission failed to provide the complainants with a copy of the response filed with our office, as required by 940 CMR 29.05(5), we extended the time allowed for the complainants to file a request for further review with our office until January 7, 2011.

We find that the Commission violated the Open Meeting Law by failing to provide proper notice for its August 30, 2010 meeting, by failing to follow the proper procedures for entering executive session under Purpose One, by discussing topics behind closed doors that were not appropriate for executive session, and by failing to create meeting minutes. In reaching this determination, we reviewed the September 28, 2010

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and January 4, 2011 complaints, and the Commission's October 19, 2010 response. We reviewed the minutes of the Commission's August 17, 2010 meeting, and the notice and the open session minutes for the Commission's August 30, 2010 meeting. We reviewed emails between Commission members and staff provided to this office following a request for documents dated January 27, 2011. We reviewed written answers by Alisa Hambly, the Commission's Secretary, dated May 12, 2011, sent in response to written questions from this office. Finally, we interviewed Commission member Ossie Jordan and Commission Chair Bruce Malcolm on April 27, 2011. We attempted to review a recording of the August 30, 2010 executive session but found the recording to be inaudible.'

FACTS

In the summer of 2010, residents in Brockton complained to the City and the Water Commission regarding their water bills. The issue garnered much media attention, including coverage in the Brockton Enterprise. Commission member Patrick Quinn was quoted in at least one newspaper article as critical of the Commission and the Department of Public Works' staff. See, e.g., Amy Littlefield, Brockton Water Department Faces Complaints, Tough Questions, BROCKTON ENTERPRISE, August 12, 2010. According to an interview with Brockton Water Commission member Ossie Jordan, the Commission held a meeting on August 30, 2010 to discuss the remarks Commission member Quinn made to the Brockton Enterprise, and to discuss protocols for Commission members when addressing the media. Commission Chair Bruce Malcolm, in an interview with this office, agreed that the Commission sought to hold a private meeting to discuss how the Commission would address the press, though he denied that the meeting was convened to discuss the conduct of any specific individual. The August 30, 2010 meeting was first announced by the Commission at its August 17, 2010 meeting. Topics announced for the August 30, 2010 meeting included "Opening Remarks," "Executive Session," and "Adjourn."

Commission Secretary Alisa Hambly submitted a meeting notice to the City Clerk on August 20, 2010 for a Monday, August 30, 2010 Commission meeting. The notice was posted on Tuesday, August 24, 2010. The meeting notice contained three topics: "Opening Remarks," "Executive Session," and "Adjourn." On Friday, August 27, 2010, Ms. Hambly sent a fax to the City Clerk asking the Clerk to, "[p]lease post revised agenda." That agenda included a topic listed as "Executive Session Section 21(A)(1)."

On August 29, 2010, Brockton City Councilor Michelle DuBois sent an email to all the members of the Commission regarding the scheduled August 30, 2010 Commission meeting. Councilor DuBois wrote that, "I find it problematic that you will be going into executive session during Monday's Water Commission Meeting and

' The recording of the August 30, 2010 Commission executive session was taken on a mini-cassette, which is designed for interviews or personal notes, taken at close range. Our Office recommends that if the Commission intends to record future meetings, the Commission use a form of recording designed to capture the voices of the Commission members (and members of the public for open sessions) who may be speaking at a distance from the recording device.

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suggest that you reconsider this action. I worry that it could be seen as a violation of [the] open meeting law." It does not appear that any of the Commission members responded to her email. Chair Malcolm stated that he did not recall receiving Councilor DuBois's email prior to the August 30, 2010 meeting. Commission member Jordan stated that he recalled receiving the Councilor DuBois's email, but could not recall whether he received it prior to the August 30, 2010 meeting, and did not believe that there had been any discussion among the Commission members regarding the email or her concerns.

The minutes of the August 30, 2010 meeting state that Commission Chair Malcolm called the meeting to order, and then Commission member Jordan "moved to adjourn into Executive Session." A roll-call vote was then taken, with four in favor of entering executive session, and with Commission member Quinn opposed. The minutes do not reflect any stated purpose for the executive session. Commission member Jordan stated in an interview with our office that there was a public statement that the Commission entered executive session under Purpose One, found at G.L. c. 30A, § 21(a)(1). The Commission recorded the executive session on an audio mini-cassette, but did not take minutes.

According to interviews with Commission members Jordan and Malcolm, the Commission discussed in executive session the media reports regarding problems with water bills and water meters, as well as Commission members' statements to the press. There were some tense moments throughout the discussion and some raised voices. Chair Malcolm stated in his interview with our office that the purpose of the discussion was not to reprimand or discipline Commission member Quinn or anyone else. Chair Malcolm also stated that there were no discussions during the executive session regarding overcharges to water bills or an audit of the water department. Commission member Jordan stated that a purpose for the executive session was to have a private discussion among the Commission members, without the public or media present to report everything that was said. One topic the Commission addressed was whether they should have an official spokesperson for handling press inquiries. The recording of the executive session lasted approximately one hour.

There were five members of the Commission on August 30, 2010. At that time, four of the five members had served on the Commission for approximately six months.

DISCUSSION

The Open Meeting Law was enacted "to eliminate much of the secrecy surrounding deliberations and decisions on which public policy is based." Ghiglione v. School Committee of Southbridge, 376 Mass. 70, 72 (1978). A public body may enter executive session to conduct a meeting outside of the public's view only for one of ten purposes. See G.L. c. 30A, § 21. Purpose One allows a public body to enter executive session "[t]o 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." Id. at § 21(a)(1). If a public body enters executive session under Purpose

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One, 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 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 own behalf; 4. To cause an independent record to be created of said executive session by

audio-recording or transcription, at the individual's expense; 5. To request that the session be open.

Id. Before entering executive session, a public body is required to take certain procedural steps, including making a public announcement stating the "purpose for the executive session, stating all subjects that may be revealed without compromising the purpose for which the executive session was called." Id. at § 21(b). Additionally, the chair is required to publicly announce whether the public body will reconvene in open session or adjourn in executive session. Icl.

A public body is also required to post a notice of its meeting "at least 48 hours prior to such meeting, excluding Saturdays, Sundays and legal holidays." Id. at § 20(b). The meeting notice must include the date, time and place of such meeting and a listing of topics that the chair reasonably anticipates will be discussed at the meeting. Id. The listing of topics "shall have sufficient specificity to reasonably advise the public of the issues to be discussed at the meeting." 940 CMR 29.03(b). A public body is also required to "create and maintain accurate minutes of all meetings, including executive sessions, setting forth the date, time and place, the members present or absent, a summary of the discussions on each subject, a list of documents and other exhibits used at the meeting, the decisions made and the actions taken at each meeting, including the record of all votes." G.L. c. 30A, § 22(a).

1. The Commission Failed to Follow the Required Procedures for Entering into Executive Session.

The Commission's meeting notice for the August 30, 2010 meeting cited executive session Purpose One as its reason for entering executive session. It is not clear that the Commission stated the purpose for the executive session during the meeting as required by G.L. c. 30A, § 21(b). The minutes only state that, "Mr. Jordon moved to adjourn into Executive Session," followed by a roll-call vote, with four voting in favor and one voting against. No purpose for the session is listed in the minutes. From the evidence reviewed, it appears that the Commission did not provide an adequate statement of the purpose for entering executive session, and failed to list a purpose in the minutes. The Commission Chair also failed to state whether the Commission would reconvene in

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open session following the executive session, or whether the Commission would adjourn in executive session, as required by G.L. c. 30A, § 21(b).

2. The Commission Conducted an Executive Session for a Purpose Not Allowed by the Open Meeting Law.

The meeting notice cited G.L. c. 30A, § 21(a)(1) as the purpose for executive session. This purpose may be used 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." In interviews with this office, Commission members acknowledged that the purpose of the executive session was not to discuss the reputation, character, or discipline of a specific individual. According to Commission members Jordan and Malcolm, the actual purpose of the meeting was to hold a private discussion, without the press or public present, concerning how to respond to media reports about the complaints against the Water Department, and how to act as a cohesive body in the face of these challenges. This discussion was not appropriate for executive session. There is no provision in the Open Meeting Law that allows a public body to discuss media strategy in executive session. See G.L. c. 30A, § 21. Although it may have been difficult or embarrassing for the Commission to have held this discussion in public, the law requires transparency in such circumstances.

3. The Commission Failed to Create and Maintain Minutes of the Executive Session During the August 30, 2010 Meeting.

The law requires that a public body "create and maintain accurate minutes of all meetings, including executive sessions, setting forth the date, time and place, the members present or absent, a summary of the discussions on each subject, a list of documents and other exhibits used at the meeting, the decisions made and the actions taken at each meeting, including the record of all votes." Id. at § 22(a). This requirement is even more important during executive session because the public is unable to witness the deliberations of the public body. Here, while the Commission recorded the executive session, it failed to create any written minutes of the hour-long discussion. There is no record of any votes taken. We were unable to ascertain anything from the recording because of its poor quality. This is a serious failure by the Commission because there is currently no accurate record of what occurred during the executive session.

4. The Commission Failed to Provide a Sufficiently Detailed Notice for its August 30, 2010 meeting.

The Commission met on Monday, August 30, 2010 at 6:00 p.m. The Commission was required to post a meeting notice with a listing of topics 48 hours before the meeting, not including Saturday, Sunday, or any legal holidays. G.L. c. 30A, § 20(b). Therefore the final meeting notice should have been posted by Thursday, August 26, 2010 at 6:00 p.m. The meeting notice that included the topic "Executive Session" was filed with the

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City Clerk and posted on Tuesday, August 24, 2010. However, the notice was not updated with the purpose for the executive session until Friday, August 27, 2010, when Commission Secretary Alisa Hambly faxed a revised notice to the City Clerk. While we commend the Commission for updating the meeting notice, it is clear that some executive session was anticipated by the Chair more than 48 hours before the meeting because the August 24, 2010 notice included the topic "Executive Session." The meeting notice filed on August 24, 2010 should have included a description of the purpose for the anticipated executive session that (without compromising its purpose) contained a sufficient level of specificity to "reasonably advise the public of the issues to be discussed at the meeting." 940 CMR 29.03(b). The August 27, 2010 revised meeting notice was not posted sufficiently in advance of the August 30, 2010 meeting to comply with the Open Meeting Law. Moreover, the revised notice's mere listing of "Section 21(A)(1)" as the topic for the executive session was not sufficiently specific to comply with the Open Meeting Law.

We understand that the Commission members may have been warned by a member of the Brockton City Council in an email that their proposed executive session could violate the Open Meeting Law. Councilor Michelle DuBois's email was sent to all the Commission members the day before the Commission's August 30, 2010 meeting. It is not clear whether any of them read the email prior to the meeting. None of them raised the issue with Commission Chair Malcolm or, insofar as we have been able to determine, discussed these concerns at the meeting before the vote to go into executive session. Had the Commission members heeded Councilor DuBois's warning, the Commission might have avoided these violations. In interviews with this office, Conmiission members Malcolm and Jordan expressed the view that the violations were a result of a lack of understanding of the requirements of the Open Meeting Law. To the contrary, that the Commission members may have ignored a warning about a potentially serious Open Meeting Law violation suggests at least a serious lack of attention to the Open Meeting Law, if not willful ignorance.

In response to the four complaints filed with this office, the Commission responded through the City Solicitor offering remedial action, including Open Meeting Law training. Additionally, the City Solicitor's letter states that Commission "will further examine, after completion of its training, whether any future decisions on calling Executive Sessions should be preceded by consultation with the office of the Brockton City Solicitor." The letter does not contain any direct acknowledgment of the violations or explanation for the Commission's actions. The letter goes on to state that, after its Open Meeting Law training, the Commission will "determine whether or not any past sessions failed to adhere to said law." At least with respect to the August 30, 2010 meeting, given that four individuals filed complaints against the Commission that the conduct of that meeting violated the Open Meeting Law, the appropriate time for the Commission to make that determination would have been in response to those very specific complaints.

Commission members Jordan and Malcolm noted in interviews with our office that four of the five Commission members were serving their first term and that they were inexperienced with executive sessions. Regardless of relative experience, all public

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body members are expected to be aware of their obligations under the Open Meeting Law. See G.L. c. 30A § 20 ("Within 2 weeks of qualification for office, all persons serving on a public body shall certify, on a form prescribed by the attorney general, the receipt of a copy of the open meeting law, regulations promulgated pursuant to section 25 and a copy of the educational materials prepared by the attorney general explaining the open meeting law and its application pursuant to section 19. ... The certification shall be evidence that the member of a public body has read and understands the requirements of the open meeting law and the consequences of violating it.")

CONCLUSION

We find that the Brockton Water Commission violated the Open Meeting Law by holding an unlawful executive session on August 30, 2010. The Commission further violated the law by providing inadequate notice to the public regarding the nature and purpose of the executive session, and by failing to create and maintain minutes of the executive session as required by G.L. c. 30A, § 22. The complainants requested a finding that these violations were intentional. We do not find that the Commission members acted with intent to violate the Open Meeting Law, but find their lack of attention to the law in the face of a clear warning to be a serious error of judgment.

ORDER

In resolving these complaints, we order the Commission to take the following remedial actions:

1. Immediate and future compliance with the Open Meeting Law, G.L. c. 30A, §§ 18-25.

2. Attend a training on the Open Meeting Law, if the members have not done so since the complaints were filed, and certify to this Office that every member of the Commission has attended such a training. The trainings are to be conducted by an attorney or organization familiar with the requirements of the Law and approved by this Office.

3. Create and publicly release minutes, including a detailed summary of the discussion, for the August 30, 2010 executive session.

4. Consult with and receive approval by the City Solicitor before entering any executive session for two calendar years, beginning on the date of this letter.

The Commission should be aware that similar violations in the future may be considered evidence of intent to violate the Open Meeting Law.

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We appreciate the cooperation of the Commission during this investigation, and consider the four complaints addressed by this determination to be resolved. Please contact me if you have any questions.

Sincerely,

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/17onathan Sclarsic Assistant Attorney General Division of Open Government Ph: 617-963-2045

cc: Bruce Malcolm, Chair, Brockton Water Commission Darlene Abramson Robert Ford Marianne Silva Ayanna Yancey-Cato

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