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THE SAUGUS ADVOCATE – Friday, May 18, 2018
The Public’s Right to Know An ongoing series on the challenges of making open government work in Saugus
By Mark E. Vogler
S
everal times a month, a local government body in Saugus violates the Executive Session component of the state Open Meeting Law. Frequently, a committee or board – as was the case this week in an agenda notice posted by the Council on Aging – will fail to cite a specific reason for its intention to go into an Executive Session. A notice violation like this can be compounded by a procedural one when the committee or board votes to go into Executive Session without stating a specific reason to meet behind closed doors to discuss public business. Several boards have done this over the past two years. And there’s another violation if the committee is unable to cite one of the 10 reasons or purposes for calling the Executive Session in the first place. If a local committee or board has posted a flawed agenda notice that fails to state the reason for Executive Session and has committed a procedural violation by not citing a specific pur-
pose for the secret session, the board’s members are probably not well informed on those 10 specific reasons for going into Executive Session. And some of the members on local boards will test the boundaries of the law if they feel like they can get away with it. They choose to do so because nobody is challenging them. It’s rare when a Saugus citizen files an Open Meeting Law complaint with the state Attorney General’s Office. It’s also possible that some of the local board members might not even realize that they are violating the law. They might assume they are entitled to call an Executive Session to discuss anything controversial. But it’s not a legitimate Executive Session unless they can cite a lawful reason for calling one. For the benefit of those who want to be better informed about the Open Meeting Law and what constitutes a proper Executive Session, here are the 10 official “purposes” for meeting in secrecy: • 1) To discuss the reputation, character, physical condition or
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mental health 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. The individual to be discussed in such Executive Session shall be notified in writing by the public body at least 48 hours prior to the proposed executive session; provided, however, that notification may be waived upon written agreement of the parties. This purpose is designed to protect the rights and reputation of individuals. However, public bodies must meet in public when it comes to discussing an employee evaluation, considering applicants for a position or discussing the qualifications or professional competence of any individual • 2) To conduct strategy sessions in preparation for negotiations with nonunion personnel or to conduct collective bargaining sessions or contract negotiations with nonunion personnel. A public body must identify the specific nonunion personnel or collective bargaining unit with which it is negotiating before entering into executive session under Purpose 2. A public body may withhold the identity of the nonunion personnel or bargaining unit if publicly disclosing that information would compromise the purpose for which the executive session was called. • 3) To discuss strategy with respect to collective bargaining or litigation if an open meeting may have a detrimental effect on the bargaining or litigating position of the public body and the chair so declares. Generally, a public body must identify the collective bargaining unit with which it is negotiating or the litigation matter
it is discussing before entering into executive session under Purpose 3. A public body may withhold the identity of the collective bargaining unit or name of the litigation matter if publicly disclosing that information would compromise the purpose for which the executive session was called. • 4) To discuss the deployment of security personnel, devices or strategies. • 5) To investigate charges of criminal misconduct or to consider the filing of criminal complaints. This purpose permits an Executive Session to investigate charges of criminal misconduct and to consider the filing of criminal complaints. Thus, it primarily involves discussions that would precede the formal criminal process in court. • 6) To consider the purchase, exchange, lease or value of real property if the chair declares that an open meeting may have a detrimental effect on the negotiating position of the public body. A public body must identify the specific piece of property it plans to discuss before entering into Executive Session. A public body may withhold the identity of the property if publicly disclosing that information would compromise the purpose for which the Executive Session was called. • 7) To comply with, or act under the authority of, any general or special law or federal grant-in-aid requirements. There may be provisions in state statutes or federal grants that require or specifically allow a public body to consider a particular issue in a closed session. Before entering executive session under this purpose, the public body must cite the specific law or federal grant-in-aid requirement that necessitates
confidentiality. • 8) To consider or interview applicants for employment or appointment by a preliminary screening committee if the chair declares that an open meeting will have a detrimental effect in obtaining qualified applicants. This clause shall not apply to any meeting, including meetings of a preliminary screening committee, to consider and interview applicants who have passed a prior preliminary screening. • 9) To meet or confer with a mediator with respect to any litigation or decision on any public business within its jurisdiction involving another party, group or entity, provided that: (i) any decision to participate in mediation shall be made in an open session and the parties, issues involved and purpose of the mediation shall be disclosed; and (ii) no action shall be taken by any public body with respect to those issues which are the subject of the mediation without deliberation and approval for such action at an open session. • 10) To discuss trade secrets or confidential, competitivelysensitive or other proprietary information. For more information about Executive Sessions, elaboration on the 10 purposes and other aspects of the state Open Meeting Law, contact the state Attorney General’s Division of Open Government at (617) 963-2540 or visit the website at www. mass.gov/ago/openmeeting. About this series: With the flood of complaints The Saugus Advocate has received over the past year alleging violations of the state Open Meeting and Public Records laws, the paper has decided to take an in-depth
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