Wednesday, March 16, 2011

How the UMass Trustees Violated the Open Meeting Law

In the wake of Springfield Republican State House reporter Dan Ring's story this weekend on possible Open Meeting Law violations by the UMass Board of Trustees, I have received requests to elaborate on my opinion. As Ring reported, Attorney General Martha Coakley is investigating whether the trustees violated the law when they went into closed sessions to interview the final candidates for university president. My opinion, as I expressed in that article, is that the violation is clear. 

The Open Meeting Law is unequivocal in requiring that the final stages of screening and selecting applicants for government jobs must be conducted in public. I say this not as a matter of interpretation, but relying on the express language of the law. 

With regard to “applicants for employment or appointment,” the law expressly states that only meetings of a preliminary screening committee may be closed, and only then when opening them would “have a detrimental effect in obtaining qualified candidates.” The law defines “preliminary screening” as “the initial stage of screening applicants … for the purpose of providing to the public body a list of those applicants qualified for further consideration or interview.”

Once the preliminary screening -- the initial stage -- is done, the law requires that all other meetings “to consider and interview applicants” must be conducted in public. As the Attorney General's Open Meeting Law Guide states in providing guidance on the preliminary-screening exemption, "This purpose does not apply to any stage in the hiring process after the screening committee or subcommittee votes to recommend a candidate or candidates to its parent body." 

The language of the law could not be more clear or unequivocal. In the case of the UMass trustees, the hiring process had passed well beyond anything that could even remotely be considered "preliminary." This was the final meeting to conduct the final set of interview and make a final hiring decision. By going into a closed-door session to conduct these interviews, the trustees indisputably violated the law. 

Exemptions Cited by the Trustees

There is that old proverb, "The devil can quote scripture for his own ends." Even though the OML is abundantly clear with regard to the hiring process, the trustees justified their closed-door meeting by citing other sections of the law that do not apply to hiring. 

First, they cited the exemption that allows an executive session "to discuss the reputation, character, physical condition or mental health, rather than professional competence, of an individual." 

With regard to hiring, the key words of this exemption are "rather than professional competence." That means that professional competence is not a subject that may be discussed in executive session. When a board is discussing the qualifications of an individual to be hired into a job or to be retained in that job, that is an issue of "professional competence." 

This isn't just my opinion. This is the opinion of both the state Supreme Judicial Court and the AG. The SJC, in its decision last year in District Attorney for the Northern District v. School Committee of Wayland, said, "[A] school committee's deliberation of the superintendent's professional competence must take place in an open session." Likewise, the AG's Guide expressly says that the reputation and character exemption does not apply when "considering applicants for a position, or discussing the qualifications of an individual." 

The next exemption cited by the trustees is that which allows boards to meet in executive session "to conduct strategy sessions in preparation for negotiations with nonunion personnel." 

In the Wayland case cited above, the school committee likewise tried to invoke this very exemption to justify its closed-door meeting to conduct a performance evaluation of the superintendent. The school committee's rationale was that the evaluation would provide information that would be factored into the superintendent's eventual contract and so the exemption applied.

The SJC didn't buy that argument. The purpose of the meeting was to discuss the superintendent's evaluation, the court noted, and there was no discussion at the meeting of contract terms or proposals. 

In the UMass case, the argument makes even less sense and is even more clearly a smoke screen. These closed-door sessions were held before they made their final choice of a president. They had no contract to discuss until after they had made a final decision regarding a candidate. Only after they made their final decision was there someone to negotiate with. As the Wayland case made clear, a board cannot invoke the contract negotiation exception merely because a negotiation will be required at some future date.

The final exemption the trustees cite -- let's call it their "kitchen sink exemption" --  is one which allows closed meetings "to comply with, or act under the authority of, any general or special law or federal grant-in-aid requirements." This is a catch-all exemption that means, simply put, that if there is a law out there somewhere on the books that requires the meeting to be private, so be it. 

If there was such a law, no one seems to have mentioned it. Nothing I have read indicates that the trustees identified a specific law that would have required them to meet in private. They did not identify any such law before going into executive session and they have not identified any such law since. 

In the Wayland case, the SJC emphasized that government bodies should not use the OML's exceptions “to circumvent the requirements of the open meeting law.” The overarching presumption of the law is this: "All meetings of a public body shall be open to the public." Exceptions are just that -- exceptions to what should be the prevailing rule of openness. 

As it applies to hiring, the OML is clear and unequivocal in its requirement that the final stages of screening and selecting among applicants for a position are to be conducted in public. The more important the position, the more important it is that the public be kept informed. The exceptions cited by the trustees do not apply to hiring and seem to be offered as a smokescreen to obscure an illegal meeting. 

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