THE COMMONWEALTH OF MASSACHUSETTS OFFICE OF THE ATTORNEY GENERAL

ONE ASHBURTON PLACE

BOSTON, MASSACHUSETTS 02108

MAURA HEALEY ATTORNEY GENERAL

TEL: (617) 727-2200 www.inass.gov/ago

October 26, 2015

OML 2015-159

Regina Tate, Esq. Murphy, Hesse, Toomey & Lehane, LLP Crown Colony Plaza 300 Crown Colony Drive Suite 410 Quincy, MA 02169

RE: Open Meeting Law Complaint

Dear Attorney Tate:

This office received a complaint from Virapranh Douangmany, dated August 13, alleging that the Amherst-Pelham Regional School Committee (the "Committee") violated the Open Meeting Law, G.L. c. 30A, §§ 18-25.1 The complaint was originally filed with the Committee on July 14, and the Committee responded by letter dated August 4.2 In her complaint, Ms. Douangmany alleges that a Committee member deliberated by e-mail outside of a properly noticed meeting.

Following our review, we find that an e-mail sent by Committee member Katherine Appy constitutes an individual violation of the Open Meeting Law. In reaching a determination, we reviewed the original complaint; the Committee's response; and the request for further review filed with our office. We also reviewed an e-mail, dated July 7, that was sent to the Committee. Finally, we reviewed an e-mail sent to us by the Committee's legal counsel, dated September 2.

We find the facts as follows. The Committee is a nine-member public body responsible for the operation of schools serving the residents of Amherst, Pelham, Shutesbury, and Leverett. The complainant is a member of the Committee. On July 7, another Committee member, Katherine Appy, sent an e-mail to the entire Committee. It does not appear that any Committee members responded to this e-mail. Ms. Appy's e-mail reads as follows:

1 Unless otherwise indicated, all dates in this letter refer to the year 2015. 2 Despite being dated August 4, our office received a copy of the Committee's response on August 21. 3 For the sake of clarity, we will refer to you in the third person.

FACTS

Dear Fellow School Committee Members,

At our last School Committee meeting, our chair made a brief comment at the end of the meeting that I would like to refer to now, in this email. He stated that he was going "into mediation" with the NAACP. No Committee member commented on this statement at the time. I take responsibility for my own action. It was the end of a long meeting and I wish I had been thinking faster on my feet, because upon reflection, there are several things I should have said as a responsible Committee member. The first of which is, "[W]hat mediation are you talking about?" "What is the purpose of the mediation?" "What is the advice of legal counsel?" and finally "What process has been taken to hire a mediator and does it comply with required procurement standards?"

As we are all well aware, no decisions of this type can or should be made without full Committee participation and vote. I have attached our policy below which states quite clearly that no individual can act on behalf of the Committee without the Committee authorizing such action. Certainly this includes mediating on behalf of the Committee. The full Committee is the authorizing body and should have full knowledge about the content of the mediation and be in majority agreement about the position the School Committee would like to take in such a mediation.

At this point it is my understanding that we haven't address any of these issues, so therefore, no such mediation should occur. I would request of the Chair that he answer these questions for the Committee as soon as possible and organize a discussion and vote of the full body prior to any action being taken on behalf of the Committee.

DISCUSSION

The Open Meeting Law is intended to "to eliminate much of the secrecy surrounding deliberations and decisions on which public policy is based." Ghighlione v. School Committee of Southbridge. 376 Mass. 70, 72 (1978). The Law requires that all meetings of a public body be properly noticed and open to members of the public, unless an executive session is convened. See G.L. c. 30A, §§ 20(a)-(b), 21. A "meeting" is defined, in relevant part, as "a deliberation by a public body with respect to any matter within the body's jurisdiction." G.L. c. 30A, § 18. The law defines "deliberation" 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; provided, however, that 'deliberation' shall not include the distribution of meeting agenda, scheduling information or distribution of other procedural meeting [material] or the distribution of reports or documents that may be discussed at a meeting, provided that no opinion of a member is expressed." Id. (emphasis added) Expression of an opinion on matters within a body's jurisdiction to a quorum of a public body is a deliberation, even if no other public body member responds. See OML 2013-29; OML 2013-27; OML 2012-15.4

Here, Ms. Appy's e-mail stated an opinion on whether the chair was authorized to enter mediation with the NAACP. This was clearly a matter of public business within the

4 Open Meeting Law determinations may be found on the Attorney General's website: www.mass.gov/ago/openmeeting.

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Committee's jurisdiction. Further, the e-mail suggested that discussion of the mediation be added to the agenda for an upcoming meeting. Discussions of whether the body should consider or take action on specific topics at a future meeting also concern public business within a body's jurisdiction. See OML 2013-27; OML 2011-38. Therefore, by sending the e-mail at issue to a quorum of the Committee, Ms. Appy violated the Open Meeting Law. See OML 2014-148. We find that this violation was not intentional. Ms. Appy believed that her actions did not constitute deliberation and were therefore permissible under the Open Meeting Law. For the reasons stated, however, this was not the case.

CONCLUSION

For the reasons stated above, we find that Ms. Appy individually violated the Open Meeting Law. We order the Committee's immediate and future compliance with the Open Meeting Law's requirements, and we caution that similar future violations may be considered evidence of intent to violate the law. We also order that the Committee release to the public, within 14 days following its receipt of this letter, Ms. Appy's July 7 e-mail.

We now consider the complaint addressed by this determination to be resolved. This determination does not address any other complaints that may be pending with our office or the Committee. Please feel free to contact the Division of Open Government at (617) 963 - 2540 if you have any questions.

Sincerely,

Kevin W. Manganaro Assistant Attorney General Division of Open Government

cc: Virapranh Douangmany Amherst-Pelham Regional School Committee

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. BOA, § 23(d). The complaint must be filed in Superior Court within twenty-one days of receipt of a final

order.

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