THE COMMONWEALTH OF MASSACHUSETTS

OFFICE OF THE ATTORNEY GENERAL

ON E AS H B U R T O N PL A C E

B O STON, MASSACHUSETTS 02108

MA U R A HE A L E Y (617) 727-2200
ATTORNEY GENERAL
www.mass.gov/ago

May 2, 2016

OML 2017-69

Thomas Colomb, Esq.

Murphy Hesse Toomey & Lehane LLP
300 Crown Colony Drive, Suite 410
Quincy, MA 02169

RE: Open Meeting Law Complaints

Dear Attorney Colomb:

This office received two complaints from Michael Hootstein on September 19, alleging
that the Amherst-Pelham Regional School Committee (the "Regional School Committee")
violated the Open Meeting Law, G.L. c. 30A, 18-25.1 The complaints were originally filed
with the Regional School Committee on or about August 1 and August 15, and you responded,
on behalf of the Regional School Committee, in a letter dated March 27, 2017. In his
complaints. Mr, Hootstein alleges that, during its July 13, July 20, August 1, and August 9
meetings, the Regional School Committee convened in executive session for an improper
purpose and failed to follow the requisite procedures. Additionally, Mr. Hootstein alleges that
the Regional School Committee failed to notice and announce executive session topics with
sufficient detail. Finally, Mr. Hootstein alleges that the Regional School Committee deliberated
outside of a noticed meeting regarding the former School Superintendent.2

Following our review, we find that the Regional School Committee violated the Open
Meeting Law by deliberating by email; by failing to follow certain procedures for convening an
executive session; by failing to list sufficient detail in the notices for several meetings; and by
failing to respond to Open Meeting Law complaints within 14 business days. In reaching a
determination, we reviewed the original complaints, the Regional School Committee's response
to the complaints, and the complaints filed with our office requesting further review. We also
reviewed the notices and open and executive session minutes from the Regional School

1All dates in this letter refer to the year 2016, unless otherwise indicated.
2 Mr. Hootstein alludes to other allegations outside of our office's jurisdiction, which include his opinion that the
Union #26 is not a "legal entity" authorized to engage in contract negotiations with the Superintendent and that
attorneys for both parties pose a conflict of interest. Because we enforce the Open Meeting Law, we decline to
review those allegations.
Committee meetings held on July 13, July 20, August 1, and August 9.3 We also reviewed email
correspondence between Regional School Committee members, which were provided to us by
the Regional School Committee. Finally, we spoke individually by telephone with former
Regional School Committee Chair Laura Kent and Regional School Committee member (and the
Amherst School Committee Chair) Dr. Katherine Appy on March 14, 2017.

FACTS

We find the facts as follows. The Regional School Committee is a nine-member public
body, thus five members constitute a quorum. The Regional School Committee represents the
middle/high school for residents of Amherst, Pelham, Shutesbury, and Leverett. The Union #26
School Committee represents the elementary schools for residents of Amherst and Pelham.4 The
Regional School Committee and the Union #26 School Committee ("the Committees") have
joint authority over the School Superintendent's employment contract. In the summer of 2016,
then School Superintendent Maria Geryk informed the Committees that she wished to negotiate a
separation from her employment. Concurrent with negotiating a separation agreement, the
Committees were in the process of completing Ms. Geryk's annual evaluation, as required by her
employment contract.5 The Regional School Committee has since publicly released the
executive session minutes from the meetings during which it discussed Ms. Geryk's separation
agreement.

The Superintendent's Evaluation

In preparation for creating an aggregated evaluation of Ms. Geryk's job performance for
the 2015-2016 school year, individual members of the Committees submitted evaluations via
Survey Monkey, a web-based survey tool. Committee members did not communicate by email
about the evaluations during this time, except for a June 17 email sent by Regional School
Committee member Vira Douangmany Cage to the Committees' secretary, on which the
Committees were copied, stating, "I can't seem to re-enter the survey to complete it."

Laura Kent, who was chair of the Regional School Committee at the time, along with Dr.
Katherine Appy, chair of the Amherst School Committee, and Darius Modestow, vice-chair of
the Pelham School Committee, met to review the individual evaluations on or about June 22.
Based on their review of the evaluations, the three chairs determined that some of the evaluations
were not compliant with the terms set forth in Ms. Geryk's employment contract, as well as
certain state standards. Consequently, on June 23, the Committees' secretary sent an email to the
Committees, stating that she had been asked by "the Chairs to forward the message below to all

3 We did not receive most of these materials until February 17, 2017, after numerous requests from our office. The
Open Meeting Law requires that, "[u]pon notification of an investigation, any person, public body or any other...
official or entity who is the subject of an investigation, shall make all information necessary to conduct such
investigation available to the attorney general." G.L. c. 30A, 24(a). We caution the Committee that we may find a
violation of the Open Meeting Law for a future failure to respond to our request for information and/or materials in
the course of an investigation.
4 Leverett and Shutesbury elementary schools are represented by the Union #28 School Committee, which has its

own superintendent.
5 Ms. Geryk agreed to extend the contractual deadline for her evaluation (June 30) through July 15.

2
School Committee members." The chairs' message informed the Committees that a meeting
scheduled for June 28 had been postponed because,

it is evident to us, that there were members of the committees who may have violated our
school committee policies, were non-compliant in the evaluation process and potentially
breached the Superintendent's contract. For example, ad hominem attacks and false
information may have been used in some of the evaluations.

In response to this email, Ms. Douangmany Cage requested a copy of her evaluation, to
which Dr. Appy responded, copying the Committees, stating, "[ajccording to counsel 'Each
individual evaluation is considered a personnel record of Maria and cannot be released without
her consent." In addition to that email exchange. Chair Kent communicated individually with
several members of the Committees about their evaluations and/or the process. Those
conversations did not reach a quorum of either committee. In addition, Mr. Modestow and
Trevor Baptiste, a member of both Committees, communicated by email about the evaluation
process between July 6 and July 10. Chair Kent was copied on some of those emails. The
Committees did not otherwise discuss the issue together outside of a meeting.

The Committees met to discuss the non-compliance issue for the first time in open
session on July 13.6 Following this meeting. Chair Kent returned all of the evaluations to the
members individually by email to determine whether they wanted to revise or supplement them.
Although some of the Committees' members submitted revised evaluation forms, the
Committees did not ultimately conduct a performance evaluation of Ms. Geryk because she
separated from the District first, as we describe below.

Negotiation of the Superintendent's Separation Agreement

On June 27, Ms. Geryk's counsel sent an email to the Committees' counsel to notify the
Committees about her desire to separate from the District due to specified legal claims against
the Committees, which included a contractual claim concerning her evaluation, as well as
constitutional and tort claims. Although counsel advised the three chairs (Chair Kent, Dr. Appy
and Mr. Modestow) about the email, the other members of the Committees did not know about
the email until an executive session held on July 13. The Committees continued its negotiation
discussions during subsequent executive sessions held on July 20; August 1; and August 9. The
Committees posted the topic on July 13 and July 20 meeting notices as follows: "Enter Executive
Session according to MGL Chapter 30A: Section 21(a)(2) to conduct strategy sessions in
preparation for negotiations with nonunion personnel or to conduct collective bargaining
sessions or contract negotiations with nonunion personnel."7 For its subsequent meetings on

6 We note that the Regional School Committee did not approve the open session minutes from the meetings at issue
until February 14, 2017. We remind the Regional School Committee that the Open Meeting Law requires that
minutes be created and approved in a timely manner. See G.L. e. 30A, 22(a). Although the Open Meeting Law
does not define "timely manner," we recommend that minutes of a meeting be approved at the next meeting,
whenever possible. See OML 2016-166; OML 2014-15.
7 We note that the notice erroneously listed a joint meeting of the School Committees for Amherst, Pelham, and

Amherst-Pelham Regional District, instead of Union #26 and the Regional School Committee.

3
August 1 and August 9, topics included similar detail, along with the addition of the name of the
nonunion personnel, Ms. Geryk.

During each meeting, the Committees voted by roll call to convene in executive session
and indicated whether it intended to return to open session or not, except that it did not state its
intention at the August 1 meeting. According to the July 13 and July 20 minutes, the
Committees announced that it planned to convene in executive session to discuss "negotiations
with non-union personnel." According to the August 1 and August 9 minutes, the Committees
made a similar announcement, but this time included the name of the nonunion personnel, Ms.
Geryk. During the July 13, August 1 and August 9 meetings, one or two Regional School
Committee members participated remotely. The remote participants were not announced as such
during the July 13 or August 1 meetings, nor did the remote participants state whether they were
alone at the remote location for the executive session. The remote participant at the August 9
meeting, however, did make this statement in open session prior to the executive session.

During each executive session, the Committees discussed Ms. Geryk's request for
separation from the District and the various legal options available to them. Counsel for the
Committees provided updates on the negotiations with Ms. Geryk, and the Committees discussed
Ms. Geryk's proposals and their counter-offers. During several meetings, the Committees
discussed whether they would conduct Ms. Geryk's annual evaluation in light of this ongoing
negotiation. At the end of each session, the Committees directed their counsel to continue
negotiating with Ms. Geryk on their behalf. On August 4, Chair Kent sent an email to the
Committees with the August 9 meeting notice attached, stating,

the Superintendent has accepted our financial offer that was voted unanimously in
executive session on July 13, 2016.. .Please review the attached agenda in which I have
allotted 30 minutes for the executive session.. .The agenda reflects entering executive
session to proposed questions to our attorney regarding the terms of the standard
separation agreement. We will entertain no amendment to the agreement until there is an
up or down vote of the presented document.. .because we have spent over 11 hours of
deliberation on this topic. We will then proceed to public session to vote the agreement
and share a statement with the public.

During the final executive session on August 9, the Committees discussed the proposed
settlement agreement. The Committees ultimately voted by roll call to "accept" the agreement.
The Committee reconvened in open session and approved the separation agreement.8

The complainant filed his first complaint on August 1 and then filed an amended
complaint, which included additional allegations, on August 15. The Committees did not send
its response to the complainant and our office until March 27, 2017.

8 We note that following this meeting, the Union #26 School Committee determined that it did not have a quorum
present for this meeting. As a remedy, the Union #26 School Committee re-voted to approve the agreement during
its August 17 meeting at which a quorum was present.

4
 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 Commission
of Southbridge, 376 Mass. 70, 72 (1978). The law requires that 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. The law defines a "meeting" as, "a deliberation by a public
body with respect to any matter within the body's jurisdiction." G.L. c. 30A, 18. A
"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; provided, however, that 'deliberation' shall not include the distribution of other
procedural meeting [sic] or the distribution of reports or documents that may be discussed at a
meeting, provided that no opinion of a member is expressed." Id For the purposes of the Open
Meeting Law, a "quorum" is a simple majority of the members of the public body. Id.

A public body may enter executive session for any of ten enumerated purposes, provided
that it has first convened in an open session, that a majority of members of the body have voted
to go into executive session, and that the vote of each member is recorded by roll call and
entered into the minutes. G.L. c. 30A, 21(a), (b). Furthermore, the chair of the public body
must announce in open session the purpose for the executive session, "stating all subjects that
may be revealed without compromising the purpose for which the executive session was called."
G.L. c. 30A, 21(a), 21(b)(3). One purpose allows a public body to convene in executive
session "[t]o conduct strategy sessions in preparation for negotiations with nonunion personnel
or to conduct collective bargaining sessions or contract negotiations with nonunion personnel."
G.L. c. 30A, 21(a)(2) ("Purpose 2"). While a public body may agree on terms with individual
non-union personnel in executive session, the final vote to execute such agreements must be
taken by the public body in open session. Id; OML 2016-164; OML 2013-84.

I. The Regional School Committee Improperly Deliberated by Email Twice

Regarding the Superintendent.

The complaints allege that Chair Kent and Dr. Appy deliberated outside of a meeting
with individuals who are not Committee members about Ms. Geryk's evaluation and proposed
separation from the District. Chair Kent and Dr. Appy are two members of a nine-member
public body, and thus constitute a subquorum of the Committee. The same is true for the email
exchange between Mr. Modestow and Mr. Baptiste. Any communications between each other
do not constitute deliberation, as defined in the law. See G.L. c. 30A, 18 ; OML 2016-172;
OML 2014-93.9 Furthermore, because the Open Meeting Law only applies to members of a
public body, any communication that may have occurred between people who are not members
of the Committee, such as counsel, and a subquorum of a public body (who do not otherwise
constitute a subcommittee) do not constitute deliberation. See OML 2015-77. Finally, Chair
Kent had individual conversations with several Committee members regarding their individual
evaluations and the process. We find that these conversations did not reach a quorum of the
Committee. See OML 2016-55, citing McCrea v. Flaherty, 71 Mass. App. Ct. 637 (2008)

9Open Meeting Law determinations may be found at the Attorney General's website,
http://www.mass.gov/ago/openmeeting.

5
(holding that private serial communications may not be used to circumvent the intent of the Open
Meeting Law).

Furthermore, Ms. Douangmany Cage's June 17 email to the Committee secretary,

copying the Committees, was not deliberation as it was a statement about her inability to re-open
her evaluation in Survey Monkey. We find this email to be administrative in nature and not a
matter within the Committee's jurisdiction. See G.L. c. 30A, 18; OML 2015-29. Likewise,
Chair Kent's August 4 email to the Committees, which attached a meeting notice, conveyed
procedural information to the Committees regarding the anticipated plan for reviewing the
proposed settlement agreement in executive session, and was not deliberation. See id.
Communicating administrative or procedural information to a quorum of a public body is
permissible as those communications are exempt from the definition of deliberation under the
law. See G.L. c. 30A, 18 ("deliberation" shall not include "the distribution of a 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') (emphasis added); OML 2017-28. Accordingly, we find no violation
with respect to these two email communications. We caution public bodies, however, that
determining which tasks are merely administrative or procedural, and therefore appropriate for
email, can be challenging, and that email communication between a quorum of public body
membershowever innocentcreates at least the appearance of an Open Meeting Law
violation.

That being said, we find that the Regional School Committee improperly deliberated by
email on two occasions regarding Ms. Meryk's evaluation. The June 23 email sent to the
Committees on behalf of the three chairs (Chair Kent, Dr. Appy and Mr. Modestow) informing
them about the non-compliant evaluations was improper as it contained their joint opinion on a
matter that was pending before the Committees. The fact that the email was sent by the
Committees' secretary, who is not a member of either committee, does not change our
conclusion that it contained improper content which should have been saved for discussion at a
meeting. A public body may not use a non-member, such as a staff member, to communicate on
matters that the Board would not otherwise be able to discuss outside an open meeting. See
District Attorney for the Northern District v. School Committee of Wayland, 451 Mass. 561,
570-571 (2009) ("Governmental bodies may not circumvent the requirements of the open
meeting law by conducting deliberations via private messages, whether electronically, in person,
over the telephone, or in any other form."); OML 2015-183; OML 2013-186. Chair Kent (and/or
the other two chairs) could not use staff as a conduit to send a message on their behalf
concerning a matter that they could not send to the Committees directly. See OML 2016-104
(the expression of an opinion of one public body member on matters within the body's
jurisdiction to a quorum of a public body is a deliberation, even if no other public body member
responds). Furthermore, Dr. Appy's June 24 response to Ms. Douangmany Cage's request for a
copy of her evaluation should not have included the rest of the Committees. Any discussion or
opinion expressed about whether an evaluation is compliant and/or is a public record should have
been saved for a posted meeting. Accordingly, we find that these two emails constituted an
improper deliberation in violation of the Open Meeting Law.

6
 II. The Regional School Committee Failed to Comply with Certain Procedural
Requirements for Convening in Executive Session, which Included its Failure to
Publicly Identify the Name of the Non-Union Personnel About Whom It
Discussed.

The complaints allege that the Regional School Committee failed to follow the
procedural requirements for convening in executive session and failed to include sufficient detail
in its executive session topics, both on the notice and in the announcement prior to convening in
executive session. While the Regional School Committee followed most of the procedural
requirements for convening in executive session, it missed a few steps. First, the Regional
School Committee failed to identify the name of the non-union employee, both on the meeting
notices and in its announcement in open session prior to the executive sessions held on July 13
and July 20, Unless disclosure will defeat the purpose for the executive session, public bodies
must identify in their meeting notice the name or position of the specific nonunion personnel
with whom they will be negotiating. See OML 2015-63; OML 2013-97. While we generally
defer to a public body's assessment of whether the inclusion of such information would
compromise the purpose for an executive session, a public body must be able to demonstrate a
reasonable basis for that claim if challenged. See OML 2015-14.

The Regional School Committee contends that at the time of posting notice of both the
July 13 and July 20 meetings. Chair Kent had limited information about the basis for Ms.
Geryk's claim or the force with which she sought to advance her separation and thus decided not
to disclose her name on the notice. Ms. Geryk's counsel did not send a formal demand to the
Committees' counsel until just hours before the July 20 meeting. Following receipt of Ms.
Geryk's formal demand letter, the Regional School Committee included Ms. Geryk's name in its
executive session topics for the August 1 and August 9 meetings. While we appreciate the
Regional School Committee's thoughtful consideration of whether to offer additional detail to
the public at that time, we fail to see how listing Ms. Geryk's name on the notice would have
compromised its negotiating position, even if Ms. Geryk had ultimately withdrawn her
separation request after those early negotiation discussions. See OML 2015-14. Moreover, even
after having received the formal July 20 demand letter hours before its meeting, the Regional
School Committee still chose not to disclose Ms. Geryk's name in open session prior to that
executive session. By failing to disclose this detail to the public, both in its notice and in the
announcement prior to convening in executive session on July 13 and July 20, the Regional
School Committee violated the Open Meeting Law.

Second, prior to convening in executive session on July 13 and August 1, the Regional
School Committee failed to announce whether it intended to reconvene in open session following
the executive session. See G.L. c. 30A, 21(b)(4). The Committee also failed to announce that
members were participating remotely and for which permissible reason under the Open Meeting
Law regulations. See 940 CMR 29.10 (5), (7)(b). Additionally, the remote participants failed to
announce whether they were alone at their remote locations for the executive session. See 940
CMR 29.10 (7)(d). Although these are slight missteps during otherwise well-prepared meetings,
they nevertheless constitute violations of the Open Meeting Law.

7
 III. The Regional School Committee's Executive Session Discussions Regarding the
Superintendent's Employment Contract Were Proper under Purpose 2.

The complaints allege that the Committee's executive session discussions of July 13;
July 20; August 1; and August 9 were improperly held behind closed doors. On those dates, the
Committee discussed strategy with respect to negotiating a separation agreement with Ms.
Geryk, a non-union employee, in executive session under Purpose 2. The Committee did not
discuss Ms. Geryk's professional competence in executive session, although it did discuss
whether her performance evaluation would be completed. Any discussion about the evaluation
process was in the context of strategy with respect to negotiating the agreement with Ms. Geryk,
who had asserted claims against the Committees based, in part, on their failure to complete the
evaluation. We find this part of the discussion fit within the parameters of Purpose 2.
Accordingly, we find that the executive session discussions were properly held and therefore the
Regional School Committee did not violate the Open Meeting Law.

IV. The Regional School Committee Failed to Respond to the Open Meeting Law
Complaints within 14 Business Days.

The complaints were filed with the Regional School Committee on August 1 and August
15, respectively. The Regional School Committee did not provide its response to the
complainant and to our office until March 27, 2017, despite our office's repeated requests. The
Open Meeting Law requires that, upon the filing of an Open Meeting Law complaint with a
public body, the chair "shall disseminate copies of the complaint to the members of the public
body," and "the public body shall review the complaint's allegations." 940 CMR 29.05(3), (5).
Thus, the public body must meet to review the complaint and formulate a response, or meet to
delegate that authority, and respond to the complaint within 14 business days. See G.L. c. 30A,
23(b); OML 2012-90. The Regional School Committee did not request an extension from our
office for additional time to respond to the complaints. Instead, the Regional School Committee
discussed its response during several meetings at which it decided to postpone its approval,
ultimately approving the response on November 18. The complainant and our office did not
receive the response until seven months later. Accordingly, we find that the Regional School
Committee violated the Open Meeting Law for its delay in sending its response to the
complainant and our office.

CONCLUSION

We find that the Regional School Committee violated the Open Meeting Law by
deliberating by email; by failing to follow certain procedures for convening an executive session;
by failing to list sufficient detail in the notices for several meetings; and by failing to respond to
Open Meeting Law complaints within 14 business days. We order the Committee's immediate
and future compliance with the law's requirements, and we caution that similar future violations
could be considered evidence of intent to violate the law.

We now consider the complaints addressed by this determination to be resolved. This

determination does not address any other complaints that may be pending with our office or the

8
Regional School Committee. Please feel free to contact our office at (617) 963-2540 if you have
any questions regarding this letter.

Hanne Rush
Assistant Attorney General
Division of Open Government

cc: Michael Hootstein

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. 30A, 23(d). The
complaint must be filed in Superior Court within twenty-one days of receipt of a final
order.