The Attorney General's ruling

Winthrop Town Council · from StateReference · 3 pages · 1.7 MB
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THE COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE ATTORNEY GENERAL 
ONE ASHBURTON PLACE
BOSTON, MASSACHUSETTS 02108
MARTHA COAKLEY 
ATTORNEY GENERAL 
December 15, 2014
OML 2014-145
Elizabeth A. Lane, Esq.
Kopelman and Paige, P .C. 
101 Arch Street
Boston, MA 02110 
RE: Open Meeting Law Complaint 
Dear Attorney Lane;
This office received a complaint from Mr. David Osborne, dated July 7, alleging that the
Winthrop Town Council (the Council) violated the Open Meeting Law, G.L. c. 30A, §§ 18-25. 1 
The complaint was originally filed with the Council on June 19, and you responded on behalf of
the Council in a letter dated July 3. In his complaint, Mr. Osborne alleges that the Council failed
to sufficiently state the purpose for an executive session. Subsequently, Mr. Osborne filed a
second complaint with the Council on July 28, and a second request for further review with our
office on August 22, alleging that the Council failed to discuss his original complaint during a
meeting.
Following our review, we find that the Council did not violate the Open Meeting Law
with respect to its June 17 executive session, but did fail to follow proper procedure in
responding to the complaint about that meeting. In reaching a determination, we reviewed the
complaints and requests for further review; the Council's response; and the notice, agenda, and
open session meeting minutes for a Council meeting held on June 17. Additionally, we
reviewed, in camera, drafts of executive session minutes from the June 17 meeting.
FACTS
We find the facts as follows. The Council is a nine-member public body which meets at
regular intervals to discuss matters of town governance. At issue is a meeting that took place on
June 17. The agenda posted prior to the meeting reads, in pertinent part, as follows: "The
council anticipates going into executive session to discuss strategy with respect to potential
litigation and ongoing litigation. Discussion of these matters in an open meeting could have
detrimental effect on the negotiation process." 
1 Unless otherwise indicated, all dates in this letter refer to the year 2014. 
o 
(617)727-2200
www.mass.gov/ago 
During this meeting, the Council entered executive session twice. The minutes reflect
that the first executive session took place right after the open session began and was announced
as follows: "Council President Gill requests motion to go in to Executive Session to discuss
strategy with respect to potential litigation. Discussion of these matters in an open session could
have detrimental effect on the negotiation process." The motion to enter executive session
passed unanimously. Following this executive session discussion, the Council resumed its
meeting in open session.
Towards the end of the meeting, another motion was made to enter into executive
session. The minutes reflect the following: "The council anticipates going into executive session
to discuss strategy with respect to potential litigation and ongoing litigation. Discussion of these
matters in an open meeting could have detrimental effect on the negotiation process." It was
stated that the Council would resume in open session following the executive session only for the
purpose of adjourning the meeting.
DISCUSSION
The Open Meeting Law requires that meetings of a public body be conducted in an open
session, with some exceptions. G.L. c. 30A, §§ 20-21. Public bodies may enter a closed,
executive session for any of ten purposes enumerated in the Open Meeting Law, provided that
the chair of the public body first announces in open session the purpose for the executive session,
"stating all subjects that may be revealed without compromising the purpose for which the
executive session was called." G.L. c. 30A, § 21(b)(3). This level of detail must also be
included in the meeting notice. See OML 2011-15. One permissible reason to hold an executive
session is "to discuss strategy with respect to collective bargaining or litigation if an open
meeting may have a detrimental effect on the bargaining or litigating position of the public body
and the chair so declares." G.L. c. 30A, § 21(a)(3) (Purpose 3). The mere possibility of
litigation is not sufficient to invoke executive session Purpose 3. See OML 2012-5; OML 2011-
30. Litigation must be pending or clearly and imminently threatened or otherwise demonstrably
likely. See Perrvman v. School Committee of Boston, 17 Mass. App. Ct. 346, 352 (1983); OML
2012-43. When entering into executive session pursuant to Purpose 3, a public body should
identify the litigation matter or bargaining unit that it intends to discuss, if doing so will not
compromise the executive session purpose. See OML 2013-91.
Because the minutes of the June 17 executive session have not been publicly disclosed by
the Council, we do not recount the details of the litigation matters discussed. We note, though,
that three topics were discussed in executive session involving both anticipated and ongoing
litigation. Furthermore, we find that naming the parties involved in these matters would have
compromised the Council's litigating position. G.L. c. 30A, § 21(b)(3). We therefore find that
the Council did not violate the Open Meeting Law with respect to its June 17 meeting.
However, we find that the Council failed to respond to the complaint about the June 17
meeting in the manner prescribed by law. The Open Meeting Law requires that within 14 days
of receipt of a complaint, the public body must review the complaint's allegations; take remedial
action, if appropriate; and send to the Attorney General a copy of the complaint and a description
of any remedial action taken. G.L. c. 30A, § 23(b); 940 CMR 29.05(5). Mr. Osborne filed his
original complaint with the Council on June 19. The Council responded via its attorney on July
3, which was within with the required time period. However, it appears from our review that the 
Council passed the complaint along to its attorney without first reviewing the allegations during 
a meeting. While we applaud the Council's efforts to respond quickly to Mr. Osborne's
complaint, we find that its failure to discuss the complaint violated the Open Meeting Law. See
940 CMR 29.05(5). Proper procedure would have been for the Council to review the complaint
before authorizing legal counsel to respond on its behalf. 2 See OML 2012-95; OML 2012-90;
OML 2011-6. Furthermore, we note that the Council did not respond to Mr. Osborne's second
complaint, as required by the Open Meeting Law. See G.L. c. 30A, § 23(b). Failure to respond
to an Open Meeting Law complaint is itself a violation of the law. See OML 2014-78; OML
2014-15. We therefore find that the Committee violated the Open Meeting Law as alleged in the
second complaint.
For the reasons stated above, we find that the Council did not violate the Open Meeting
Law with respect to its June 17 executive session, but did fail to follow proper procedure in
responding to that complaint about that meeting. We order immediate and future compliance
with the Open Meeting Law, and we caution that future similar violations may be evidence of
intent to violate the law.
We now consider the complaints addressed by this determination to be resolved. This
determination does not address any other complaints that may be pending with our office or the
Council. Please feel free to contact the Division at (617) 963 - 2540 if you have any questions.
cc: David Osborne
Winthrop Town Council 
This determination was issued pursuant to G.L. c. 30A, § 23(c). A public body or any
member of a body aggrieved by this order may obtain judicial review through an action
filed in Superior Court pursuant to G.L. c. 30A, § 23(d). The complaint must be filed in
Superior Court within twenty one days of receipt of this order. 
2 We note that a public body may meet in executive session to review an Open Meeting Law complaint, if it so
chooses. See G.L. c. 30A, § 21(a)(1); OML 2013-82. 
CONCLUSION
Sincerely,
Kevin W. Manganaro
Assistant Attorney General
Division of Open Government