Editor's Note: the following is a Nov. 19 letter to Milford Town Counsel Gerald Moody from the state Attorney General's Office, and refers to an Open Meeting Law complaint filed with the state by former Milford Public Schools Security Director David Cutler. Cutler's position was eliminated by the School Committee in a May 10 meeting. The 4-3 committee vote was made in a public session that followed a closed session. The meeting agenda had no reference to a discussion of school security. The committee later voted to have a subcommittee review the need for the district security position, but by then, Cutler had found a new job. Contacted Thursday, School Committee Chairman Patrick Holland said he accepts responsibility for the Open Meeting Law violation, and noted the entire board has since become more aware of the legal requirements. "I didn't know it had to be listed as a specific item." Cutler could not be reached for comment.
Dear Attorney Moody:
This office reviewed a complaint dated June 8, 2012, filed by Mr. David S. Cutler, alleging that the Milford School Committee (the "Committee") violated the Open Meeting Law. G.L.c. 30A PP 18-25. The complaint was originally filed with the Committee on or about May 18, 2012, and you responded on behalf of the Committee by letter dated May 29, 2012. In his complaint, Mr. Cutler alleges that the Committee engaged in a deliberation outside of a properly posted meeting prior to a May 10, 2012 meeting, when the Committee approved a vote to eliminate the position of Director of Safety and Security (the "Director"). Mr. Cutler further alleges that the topic regarding the elimination of the Director position was not included in the notice for the May 10, 2012 meeting. Mr. Cutler requested that the Committee recall the vote.
After reviewing the complaint and the Committee's response, we have decided to resolve this complaint by informal action, in accordance with 940 CMR 29.017(2)(a). We find that the Committee violated the Open Meeting Law, but took appropriate remedial action in response to the complaint.
Upon the filing of this complaint, Chairman Patrick Holland and Attorney Moody promptly took steps to examine the complaint's allegations. Chairman Holland determined that while a deliberation outside of a properly posted meeting did not occur, the Committee violated the Open Meeting Law by failing to include the topic in its meeting notice. During a telephone conversation with our office, Chairman Holland stated that he inquired of the other members of the Committee who were listed on the complaint and concluded that a deliberation did not occur in advance of the May 10, 2012 meeting. However, Chairman Holland acknowledged that Committee member Donald Quattrochio had approached him on April 29, 2012 to discuss the elimination of the Director position. During this conversation, Chairman Holland advised Mr. Quattrochio that the appropriate time to raise the issue would be during the May 10, 2012 special budget meeting. Notwithstanding this conversation, Chairman Holland failed to list the topic on the May 10, 2012 meeting notice, which was posted over a week after this conversation on May 7, 2012. Following a discussion regarding the elimination of the Director position during the May 10, 2012 Special Budget meeting, the Committee approved a motion "to accept the FY 2013 School Budget as presented with the removal of the Director of Safety and Security position" by a 4-3 vote.
Consequently, Chairman Holland sought to remedy the Open Meeting Law violation during the Committee's next meeting, which was held on May 24, 2012. According to the May 24, 2012 meeting minutes, Chairman Holland raised the Open Meeting Law violation issue during the "Announcements, Correspondence, Distribution" segment of the meeting. Chairman Holland explained the nature of the Open Meeting Law violation and recommended that the Committee reconsider its motion to eliminate the Director position and vote at a later meeting after providing adequate and duly-posted notice of the topic. The Committee concurred and approved the motion to reconsider their vote at the next Committee meeting. During its next meeting on June 7, 2012, the Committee approved a motion to create a subcommittee to review the elimination of the Director position before any vote to eliminate the position is reconsidered. According to Chairman Holland, the subcommittee expects to report their findings to the Committee some time in the spring 2013.
We do not find evidence to support the assertion that the Committee improperly deliberated in advance of the May 10, 2012 meeting. We find that the Committee violated the Open Meeting Law, however, by failing to include a topic in its meeting notice that the Chair reasonably anticipated at least 48 hours in advance of the meeting. The Open Meeting Law requires that "a public body shall post notice of every meeting at least 48 hours prior to such meeting, excluding Saturdays, Sundays and legal holidays," and every notice shall include "the date, time and place of such meeting and a listing of topics that the chair reasonably anticipates will be discussed at the meeting." G.L. c. 30A P 20(b); 940 CMR 29.03. The Open Meeting Law does not require that the chair of a public body guess what will occur during a meeting, but the chair does need to list those topics that he or she reasonably anticipates will be discussed.
It is clear that Chairman Holland anticipated at least a week before the May 10, 2012 meeting that Mr. Quattrochio would likely raise the topic at that meeting and therefore should have included the topic in the meeting notice. The Committee promptly made efforts to remedy the violation at the following two meetings, however. In addition, Chairman Holland asked Attorney Moody to conduct a presentation on the Open Meeting Law to the Committee. In a letter to our office dated Sept. 24, 2012, Attorney Moody confirmed that the presentation to the Committee occurred on Sept. 20, 2012.
In addition to the remedial steps already taken by the Committee, we order the Committee's immediate and future compliance with the Open Meeting Law and caution the Committee that future violations may be considered evidence of intent to violate the law. With the issuance of this determination, we now consider this matter closed. This determination does not address any other complaints which may be pending with our office or the Committee.
Hanne Rush, Assistant Attorney General, Division of Open Government.