Mass. SJC: Board Members Can’t Secretly Evaluate Public Employees By Email

By Erinn Cawthon and Jeffrey Pyle

On April 5, the Supreme Judicial Court of Massachusetts held that members of a board of selectmen violated the Open Meeting Law by using email to secretly share their opinions about the performance of a town administrator in advance of a public meeting.

The opinion provides important guidance on what constitutes a “deliberation” under the Open Meeting Law, and it vindicates principles of transparency in the era of electronic communication.

In Boelter v. Board of Selectmen of Wayland, the Wayland Board of Selectmen agreed that each member would prepare an evaluation of the town administrator and send it to the chair, who then would create a “composite” evaluation for discussion at an open meeting. The chair later circulated such a composite document, along with three individual appraisals, to all members of the board in advance of a public meeting at which the administrator was to be evaluated. At the meeting, the board discussed the composite evaluation and approved it, and later released the individual and composite evaluations to the public.

The Open Meeting Law, Mass. Gen. Laws c. 30A, §§ 18 and 20(a), requires public bodies to make their meetings and “deliberations” open to the public. However, it includes an exemption to the definition of “deliberation,” effective in July 2010, that permits members of public bodies to distribute to each other “reports or documents that may be discussed at a meeting, provided that no opinion of a member is expressed.”

The question in Boelter was whether the non-public forwarding of individual appraisals among board members constituted an impermissible secret “deliberation.” The answer was “yes,” because an evaluation of an employee necessarily constitutes an “appraisal” of-and thus an “opinion” on–the employee’s performance.

“The individual and composite evaluations prepared by the board members and shared with the quorum doubtless constituted ‘appraisals’ of the town administrator’s performance, and therefore contained board members’ opinions,” according to the court.

The court made short work of the board’s argument that the exemption for “the distribution” of “reports or documents . . . provided that no opinion of a member is expressed,” allows for the non-public circulation of opinions so long as they are not in the body of an email, but rather in an attached “report.”

“This reading would create a loophole that would render the open meeting law toothless,” the court held, and would be inconsistent with the rule that 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.” See District Attorney for the N. Dist. v. School Com. of Wayland, 455 Mass. 561, 571-72 (2009).

The Open Meeting Law, of course, is intended to ensure that the public is able to see how decisions are made, not just to have access to the ultimate decision. Thus, as the court pointed out, things would have been different if the board had made the evaluations publicly available before the open meeting — for example, by posting them on its website.

As it happened, however, “the effect of the circulation of the individual and composite evaluations was that all five board members were aware of the opinions of four of the members in advance of the open meeting; thus, the circulation, in effect, constituted a deliberation, or a meeting, to which the public did not have access.”

Erinn Cawthon and Jeffrey Pyle are attorneys at the Boston firm Prince Lobel Tye LLP.

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