A Cautionary Tale for Municipal Officials: The SJC clarifies the Open Meeting Law’s “deliberation exemption”

By: Scott M. Zanolli

The Massachusetts Supreme Judicial Court’s recent ruling in Boelter v. Board of Selectmen of Wayland (SJC-12353, April 5, 2018) interprets and clarifies, for the first time, the meaning of the term “deliberation,” which was added to the Open Meeting Law in July 2010. The Open Meeting Law requires that, with the exception of executive sessions, “all meetings of a public body shall be open to the public.” General Laws c. 30A, § 20 (a). The statute defines a “meeting” as “a deliberation by a public body with respect to any matter within the body’s jurisdiction,” subject to certain limited exclusions. G.L. c. 30A, § 18.

A “deliberation,” is “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.” The Open Meeting Law provides, however, that the term “deliberation” does not encompass the “distribution of a meeting agenda, scheduling information or distribution of other . . . reports or documents that may be discussed at a meeting, provided that no opinion of a member is expressed.” Id.

While the importance of the Open Meeting Law cannot be understated, it is clear that the parameters it places on public officials are myriad and sometimes not entirely intuitive. Prior to the Legislature’s amendment of the statute in 2010, 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. The 2010 amendment broadened the law’s definition of “deliberation,” and affirmed that a “deliberation” could encompass “any medium,” not just verbal communication. At the same time, however, the Legislature made clear that public bodies could distribute materials internally in advance of public meetings without running afoul of the statute’s proscription on “deliberation.”

In Boelter, the chair of the Wayland Select Board had circulated to all members, in advance of a public meeting where the town administrator’s evaluation was to take place, the members’ individual written evaluations of the town administrator’s performance, as well as a composite evaluation. At the meeting, the Board reviewed, discussed and approved the composite evaluation, and the meeting minutes memorialized 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.” Both the composite and individual evaluations were only released to the public following the open meeting.

The process followed by the Board was subsequently challenged, and plaintiffs argued that the public should have total access to the decision-making process whenever a town official is evaluated. See, e.g., 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”). Upon review, the Boelter Court acknowledged that the exemption allowing distribution of some materials was likely in response to the practical realities of governmental service, and that by permitting officials to review certain administrative materials and reports in advance, the Legislature sought to enable the more efficient administration of public meetings. It also noted, however, that the overarching purpose of the Open Meeting Law is to ensure transparency in governmental decision-making, and the Legislature specifically outlawed the expression of opinions by board members 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]).

In parsing the Wayland Select Board’s actions, the Court took particular note that the materials privately distributed to the members contained “appraisals” of the Town manager’s performance. Although there was no conversation, there was nonetheless an exchange of “thoughts, impressions and conclusions” that was inconsistent with the Open Meeting Law’s requirement that all deliberations take place in public. The Court concluded that the effect of the circulation of the evaluations was that all five board members were aware of the opinions of the other four members in advance of the meeting. As a result, the circulation constituted a deliberation, or a meeting, to which the public did not have access.

Noting that the Open Meeting Law was intended to ensure that the public is able to see for themselves how public decisions are made, See Revere, 476 Mass. at 610, the Court found that distribution of the individual and composite opinions to a quorum, prior to the meeting, violated the statute’s purpose. 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 supplied); 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 ruling in Boelter is both an affirmation of the Open Meeting Law’s overarching goal, transparency in governmental decision-making, and a challenge to public officials striving for administrative efficiency. The decision makes clear to municipal officials that there are now only two types of materials which may be safely distributed to a quorum outside of a public meeting: 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. Careful municipal officials should consider adopting a general practice of not communicating by email at all except for distributing meeting agendas, scheduling meetings and distributing documents created by non-members to be discussed at meetings, all of which are ministerial tasks specifically sanctioned under the Open Meeting Law.

Pierce & Mandell partner Michael C. Fee practices in the firm’s real estate and litigation departments. He is a former Town Moderator, Planning Board and Water District Chairman in Sudbury, and a current member of the Truro Open Space Committee. He frequently advises individuals and municipalities regarding public official liability under 42 U.S.C. § 1983, the Open Meeting Law, and matters involving public records, zoning, permitting, and land use.

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