Judge Calls Open Meeting Violation 'Shameful''

A Massachusetts judge has ruled that the South Hadley School Committee committed a "shameful" violation of the state open meeting law, fining it $5,000 and invalidating its vote to increase the salary of the town's school superintendent.

Full details of the ruling are available in a report from The Republican.

In fact, the judge found that the School Committee unlawfully met in executive session five times, first to discuss extending the contract of the superintendent, Gus A. Sayer, and then to discuss increasing his salary. Although Judge C. Brian McDonald found that both closed sessions violated the law, he concluded that he could remedy only the pay raise violation because the complaint about the earlier violation was not filed within the time required by law.

This ruling is notable for several reasons:

• First, in justifying its closed session, the School Committee cited an OML exception that allows closed meetings to discuss "contract negotiations." This has become one of those "kitchen sink" exceptions that boards regularly cite, even when no actual negotiations are involved. (I noted this recently with regard to the UMass trustees.) Here, the judge gave this argument short shrift: "These broad references to a permissible exception to the open meeting rule not only were not precise, they were deliberately misleading. Indeed, I find that the announcements were the result of willful decisions to provide false purposes so as to mislead the public."
• Second, the penalty underscores a fundamental flaw in the OML. Although the judge imposed a $5,000 fine, guess who pays that? The taxpayers. The board members who violated the law get off scot-free. For years, the Massachusetts Newspaper Publishers Association has been pushing for teeth in the OML -- specifically for the ability for courts to impose fines on individual members of boards and commissions who intentionally violate the law (not those who innocently violate it). The OML is one of the only laws on the books in Massachusetts that someone can violate without fear of any direct consequence. 
• Third, groups that oppose adding penalties to the OML (most notably the Mass. Municipal Association) argue that public officials virtually never violate the law intentionally. When they do violate the law, these groups contend, it is an innocent violation resulting from misunderstanding of the law's complexities. Yet here, again, is another in a long series of cases that demonstrates that many of the most egregious violations of the OML are committed with full understanding of the law. Officials who skirt the law to meet in closed meetings do so precisely because they want to hide something they know will be unpopular. That is what happened here, with the judge noting that the School Committee was already "at the center of a firestorm of adverse publicity" following the suicide of 15-year-old bullying victim Phoebe Prince. 

One other note: According to the story in The Republican, the judge ordered South Hadley to reimburse the plaintiffs in this case for their legal costs. That is significant because, in a 1988 case, the Supreme Judicial Court ruled that a court cannot award legal costs in an OML case. That was decided under the former OML that was replaced by a new law last year. The new law is silent on attorneys' fees. I have not seen the actual ruling in this case, but perhaps the judge has found grounds under the new law to award fees.