Nigro v. Conservation Com'n of Canton

• Decision Date: 24 January 1984
• Citation: 17 Mass.App.Ct. 433,458 N.E.2d 1219
• Parties: John M. NIGRO et al. v. CONSERVATION COMMISSION OF CANTON.
• Court: Appeals Court of Massachusetts

Page 1219

458 N.E.2d 1219

17 Mass.App.Ct. 433

John M. NIGRO et al. v. CONSERVATION COMMISSION OF CANTON.

Appeals Court of Massachusetts,

Norfolk.

Argued Jan. 6, 1984.

Decided Jan. 24, 1984.

Bernard W. Fang, Cambridge, for plaintiffs.

Joseph H. Malloy, Town Counsel, Canton, for defendant.

James C. Heigham, Boston, for Mass. Newspaper Publishers Assn., amicus curiae, on brief.

Before GRANT, BROWN and KASS, JJ.

GRANT, Justice.

As the result of a concession made by counsel for the plaintiffs at the argument, the only questions remaining for decision on this appeal are the narrow ones of whether a three-member subcommittee of the seven-member conservation commission (G.L. c. 40, § 8C) of the town of Canton is required by the first, sixth and seventh paragraphs, respectively, of G.L. c. 39, § 23B (as most recently amended by St. 1980, c. 220, § 3), to hold open meetings, to give notice of its meetings, and to maintain accurate records thereof. ¹ A judge of the Superior Court thought not and entered judgment accordingly. The plaintiffs, who are three registered voters of the town (see § 23B, eleventh par.), have appealed.

The portions of the record which relate to these questions are sketchy, but it appears that the subcommittee in question is concerned in some way with the implementation or the enforcement of the so-called conservation easement which the town of Canton owns in the Prowse Farm and which was considered in Knowles v. Codex Corp., 12 Mass.App. 493, --- - ---, ---, Mass.App.Ct.Adv.Sh. (1981) 1708, 1710-1711, 1714, 426 N.E.2d 734. ² According to the chairman of the commission, whose testimony the trial judge appears to have regarded as credible, the subcommittee's jurisdiction extends to making factual investigations, reporting its findings to the full commission, and making verbal recommendations as to actions which should be taken by the commission. Nothing more appears as to the functions or duties of the subcommittee. There is no dispute that the subcommittee has not in the past complied with the notice and records requirements of the sixth and seventh paragraphs of § 23B.

The answers to our questions turn on the proper construction of the definitions of the terms "Deliberation", "Governmental body" and "Meeting" which are set out in G.L. c. 39, § 23A, as most recently amended by St.1978, c. 372, § 9, and particularly on the proper construction of the word "decision" as employed in the first and third of those definitions. We start with the definition of "Governmental body" and find that it includes "every board, commission, committee or subcommittee of any ... city ... or town, however elected, appointed or otherwise constituted" (emphasis supplied). As there is no such legal entity as a "subcommittee of [a] ... city ... or town", the only way to avoid stripping "subcommittee" of all meaning in its present context is to read "Governmental body" to include a "subcommittee of any board, commission or committee of any city or town." ³ So far there is no real dispute among the parties.

Their positions diverge when it comes to the proper construction of the terms "Deliberation" and "Meeting." The former is defined as "a verbal exchange between a quorum ⁴ of members of a governmental body attempting to arrive at a decision on any public business within its jurisdiction" (emphasis supplied). The latter is defined as "any corporal convening and deliberation of a governmental body for which a quorum is required in order to make a decision at which any public business ... over which the governmental body has jurisdiction ... is discussed or considered ..." (emphasis supplied). ⁵

As we have already noted, the "jurisdiction" of the subcommittee extends to making factual investigations and reporting its findings and making recommendations to the full commission. Except in the unlikely event that the members constituting the statutory quorum conduct their exchanges of ideas by convening and then pushing notes to each other across the table, they cannot perform their intended functions without engaging in what a layman would regard as deliberation at a meeting.

All of which brings us to the meaning of the word "decision" as it is employed in the definitions of "Deliberation" and "Meeting." The judge based his conclusion as to the nonapplicability of the sixth and seventh paragraphs of G.L. c. 39, § 23B, on the following reasoning: "The subcommittee here is involved only in the process of making educated recommendations to the full [commission]. Final decision[s] upon whatever alternatives are suggested by the subcommittee are...