Boelter v. Bd. of Selectmen of Wayland

• Decision Date: 05 April 2018
• Docket Number: SJC–12353
• Citation: 93 N.E.3d 1163,479 Mass. 233
• Parties: Mary Alice BOELTER & others v. BOARD OF SELECTMEN OF WAYLAND.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

479 Mass. 233

93 N.E.3d 1163

Mary Alice BOELTER & others¹

v.BOARD OF SELECTMEN OF WAYLAND.

SJC–12353

Supreme Judicial Court of Massachusetts, Middlesex..

Argued December 5, 2017

Decided April 5, 2018

Mark J. Lanza, Special Town Counsel, for the defendant.

David S. Mackey, Special Assistant Attorney General (Christine M. Zaleski also present) for Massachusetts Gaming Commission.

George H. Harris for the plaintiffs.

The following submitted briefs for amici curiae:

Maura Healey, Attorney General, & Jonathan Sclarsic & Kevin W. Manganaro, Assistant Attorneys General, for the Attorney General.

Robert J. Ambrogi & Peter J. Caruso for Massachusetts Newspaper Publishers Association.

Kenneth S. Leonetti, Christopher E. Hart, Michael Hoven, & Kelly Caiazzo, Boston, for Hal Abrams & others.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

LENK, J.

The plaintiffs, all registered voters in the town of Wayland (town), brought this action in the Superior Court to challenge the procedure by which the board of selectmen of Wayland (board) conducted the 2012 performance review of the town administrator. The chair of the board had circulated to all board members, in advance of the public meeting where the town administrator's evaluation was to take place, board members' individual written evaluations, as well as a composite written evaluation, of the town administrator's performance. The board made public all written evaluations after the open meeting. The issue before us is whether the board violated the Massachusetts open meeting law, G. L. c. 30A, §§ 18 and 20 (a ), which generally requires public bodies to make their meetings, including "deliberations," open to the public.

A judge of the Superior Court allowed the plaintiffs' motion for summary judgment, issued a permanent injunction, and declared "stricken" a contrary determination by the Attorney General that had issued the prior year, on essentially the same facts, in which the Attorney General had found that the board's conduct had not violated the open meeting law. The board appealed from the allowance of summary judgment, arguing that the matter is moot, its conduct did not violate the open meeting law, and the judge erred in "striking" the Attorney General's separate administrative decision.

We conclude that the judge did not err in declining to dismiss the case on mootness grounds, because the matter is capable of repetition and yet evading review, and is of substantial public importance. See, e.g., Seney v. Morhy, 467 Mass. 58, 61, 3 N.E.3d 577 (2014). We conclude further that the procedure the board followed in conducting the town administrator's evaluation did violate the open meeting law. In making this determination, we consider, for the first time, the meaning of the open meeting law's exemption to the definition of "[d]eliberation," which became 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." See St. 2009, c. 28, § 18; G. L. c. 30A, § 18.

We conclude that this exemption was enacted to foster administrative efficiency, but only where such efficiency does not come at the expense of the open meeting law's overarching purpose, transparency in governmental decision-making. As the individual and composite evaluations of the town administrator by the board members contained opinions, the circulation of such documents among a quorum prior to the open meeting does not fall within the exemption, and thus constituted a deliberation to which the public did not have access, in violation of the open meeting law. We therefore affirm the judge's decision allowing summary judgment for the plaintiffs on this ground. We agree with the board, however, that the judge erred in "striking" the Attorney General's determination, and vacate that portion of the judge's decision.²

1. Background. The material facts are not in dispute. On January 3, 2012, the five-member board held an open meeting during which it reviewed the procedures it intended to follow in conducting the annual performance evaluation of the town administrator. The board agreed that, by the end of the month, its members would submit individual evaluations to the chair, who would compile the evaluations and draft a composite evaluation. The composite evaluation was to be distributed to all board members in advance of the scheduled March 28, 2012, open meeting at which the board planned to discuss the town administrator's performance and issue a final written evaluation. The procedure the board chose to follow was largely consistent with the Attorney General's guidance to public bodies regarding performance evaluations, which was available on the Attorney General's Web site:

"May the individual evaluations of an employee be aggregated into a comprehensive evaluation?

"Yes. Members of a public body may individually create evaluations, and then submit them to an individual to aggregate into a master evaluation document to be discussed at an open meeting. Ideally, members of the public body should submit their evaluations for compilation to someone who is not a member of the public body, for example, an administrative assistant. If this is not a practical option, then the chair or other designated public body member may compile the evaluations. However, once the individual evaluations are submitted for aggregation there should be no deliberation among members of the public body regarding the content of the evaluations outside of an open meeting, whether in person or over email."

In accordance with the plan developed at the open meeting, three of the board members submitted written evaluations to the chair. Two sent the evaluations by electronic mail (e-mail) message, and one hand-delivered her evaluation. The chair created a composite performance evaluation which included the opinions of those three board members, as well as his own. The reviews were predominantly positive. The chair then sent the composite document, along with the three individual performance evaluations, to each board member, by e-mail, as part of an agenda packet for the then-upcoming open meeting.

At the meeting, the board reviewed and discussed the composite evaluation and approved it as final. The minutes of the meeting simply state that the board "praised [the town administrator] for his availability and responsiveness to the public, his work ethic, his relationship with town staff, and his accessibility to board and committee members." The composite and individual evaluations subsequently were released to the public.

Approximately two months after the March 28, 2012, open meeting, George Harris, a registered voter in Wayland, filed a complaint with the office of the Attorney General, claiming that the board's procedure for conducting the town administrator's performance evaluation violated the open meeting law. See G. L. c. 30A, §§ 18, 20 (a ). The open meeting law requires public bodies to make their meetings open to the public, and provide advance notice of such meetings, unless the meeting is an executive session, which can be conducted only for limited reasons. See G. L. c. 30A, §§ 18, 20.

In January, 2013, the Attorney General responded with a determination letter finding that the board's conduct had not violated the open meeting law; Harris's subsequent request for reconsideration was denied. As judicial review of an Attorney General's determination in such matters is available only to an aggrieved public body or member thereof, see G. L. c. 30A, § 23 (d ), Harris did not appeal from the decision.

In February, 2014, the five plaintiffs in this action, who are also registered voters in Wayland (and who are represented by Harris) filed a complaint against the board in the Superior Court, concerning the same facts. The complaint sought a declaratory judgment and injunctive relief prohibiting the board from commencing a "private exchange of opinions in deliberating the professional competence of an individual prior to an open meeting." The parties filed cross motions for summary judgment.³

The plaintiffs' motion was allowed after a hearing. The judge concluded that the board had violated the open meeting law and permanently enjoined it from "deliberating the town administrator's professional competence by private written messages before the commencement of a meeting open to the public." In his decision, although not in the judgment or amended judgment,⁴ the judge also declared that "[t]he opinion from the Attorney General [d]ivision of [o]pen [g]overnment is stricken." The board appealed to the Appeals Court, and we transferred the case to this court on our own motion.

2. Discussion. a. Standard of review. We review a decision on a motion for summary judgment de novo, and thus "accord no deference to the decision of the motion judge" (citation omitted). Drakopoulos v. U.S. Bank Nat'l Ass'n, 465 Mass. 775, 777, 991 N.E.2d 1086 (2013). "Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Boazova v. Safety Ins. Co., 462 Mass. 346, 350, 968 N.E.2d 385 (2012), citing Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002).

b. Mootness. At first blush, the plaintiffs' claims appear moot, because the evaluation of the town administrator has been completed, and the plaintiffs are no longer able to affect the procedure the board implemented in 2012 in order to ensure compliance with the open meeting law. In addition, the typical remedy for such a violation is public release of the documents at issue, which the board effectuated after the asserted violation.⁵ See District Attorney for the N. Dist. v. School Comm. of Wayland, 455 Mass. 561, 572, 918 N.E.2d 796 (2009) ( School Comm. of Wayland ).

Nonetheless, dismissal for mootness may be inappropriate if the situation presented is "capable of repetition,...