THE COMMONWEALTH OF MASSACI-IUSETTS OFFICE OF THE ATTORNEY GENERAL

ONE ASHBURTON PLACE BOSTON, MASSACHUSETTS 02108 MARTHA COAKLEY ATroRNEY GENERAL October 19, 2011 OML 2011- 40
(617) 727-2200 (617) 727-4765 TTY www.mass.gov/ago

D. M. Moschos Mirick O'Connell 100 Front St. Worcester, MA 01608 RE:

Open Meeting Law Complaint

Dear Attorney Mochos: This office received a complaint from Ms. Paula Melville dated April 6, 2011 alleging that the Adams Board of Selectmen (the "Board") and the Adams Town Administrator' violated the Open Meeting Law, G.L. c. 30A, 18-25. Specifically, the complaint alleges that on February 28, 2011, the Board "improperly held an open meeting and improperly discussed certain matters in open session," and that the Board and Town Administrator, "conducted Town business without notice of and without an open meeting and/or executive session." Her complaint was filed with the Board on March 6, 2011, and the Board responded to the complaint on March 25, 2011. We find that the Board did not violate the Open Meeting Law. In reaching this determination, we reviewed the March 6, 2011 complaint and attached documents filed with the Board, the Board's March 25, 2011 response to the complaint, and the April 6, 2011 complaint filed with our office. Additionally, we reviewed the meeting notice and the minutes of the Board's February 28, 2011 emergency meeting. We also reviewed an undated letter from the AFSCME Council 93 Staff Representative to the Town's labor counsel. Finally, we reviewed written statements provided by the Board members (other than the complainant) to our office in response to a June 14, 2011 request. FACTS
We note that the Town Administrator is not a member of the Board, and is thus not subject to the Open Meeting Law. We only consider the allegations against the Town Administrator to the extent they charge that he facilitated unlawful deliberations between and among a quorum of Board members. 1

The facts are mostly undisputed, though we note where the complainant and the Board disagree. The members of the Board at the time the complaint was filed include Chairman Michael Ouellette, Vice-Chairman Arthur Harrington, Jason Hnatonko, Scott Nichols, and the complainant, Paula Melville. On or about February. 25, 2011, the Adams Town Administrator, Jonathan Butler, provided courtesy copies of his proposed annual budget to the members of the Board of Selectmen. The proposed budget was provided to the Board members fof their review ahead of the regularly scheduled March 1, 2011 Board meeting. At that meeting, the budget would be officially presented to the Board and would become public. Until that time, the Town Administrator considered the budget to be a confidential document. On the morning of February 28, 2011, Ms. Melville visited the Town's Council on Aging Department and Social Day program located at the Adams Community Center. What exactly occurred during this visit remains a point of contention. The Board asserts that Ms. Melville informed the Council on Aging director and two administrative assistants of the collective bargaining contents of the proposed budget relevant to their department. The Board further asserts that Ms. Melville informed the two administrative assistants that they would be laid off if the proposed budget was approved. Both administrative assistants are members of a collective bargaining unit represented by AFSCME, Council 93, AFL-CIO, Local 204 (the "Union"). The Board notes that on February 16, 2011, the Town and the Union specifically agreed that the Town Administrator would meet, in the presence of a union representative, with any individuals in the bargaining unit who might be laid off as a result of the Town Administrator's proposed budget, prior to the budget's public release. In her complaint, Ms. Melville acknowledges that she visited the Town's Council on Aging Department and Social Day program the morning of February 28, 2011. She denies that she informed any employees that they would be laid off Ms Melville states that she was there to, "confirm with the department head that the department's budget proposed cutting one parttime position and two full-time positions at the same time another full-time position be created." Ms. Melville explains that she asked a part-time staff member whether she had seen the proposed town budget. When the staff member responded "no," Ms. Melville told her, "You won't be happy. I know I'm not." After that exchange, Ms. Melville states that she spoke with the Council on Aging director and a full-time staff member, and explained that "sweeping changes are recommended in the budget and that she found them totally unacceptable." Following Ms. Melville's visit to the Adams Community Center, the Director of the Council on Aging immediately called the Town Administrator, Jonathan Butler, and relayed to him what had occurred. Mr. Butler was concerned that Ms. Melville's actions may have violated the Town's February 16, 2011 agreement with the Union. Mr. Butler then notified Board Chairman Michael Ouellette and Vice-Chair Arthur Harrington as to what had been reported by the Council on Aging director. The two Board members met at Town Hall with the Town Administrator that afternoon to discuss Ms. Melville's alleged actions and the possible consequences to the Town. They consulted outside counsel, and were advised to hold an emergency meeting to address the issue. Chairman Ouellette and Vice-Chairman Harrington decided to convene an emergency meeting for that evening at 6:30 p.m. The Town's outside
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counsel was asked by either the Chair or the Town Administrator to prepare documents for the emergency meeting. The Town Administrator then informed each Board member of the time and location of the emergency meeting, and the general purpose for the meeting. The Board states that it tried to contact Ms. Melville by email to inform her of the emergency meeting that evening but did not receive a response. It is unclear whether the Town Administrator or any other Town Officials tried to reach Ms. Melville by telephone. The Board posted notice at 3:33 p.m. on February 28, 2011 for a 6:30 p.m. emergency Board meeting. A deputy from the Berkshire County Sheriff's Office served Ms. Melville with a copy of the emergency meeting notice at her home at approximately 4:25 p.m. The Deputy Sheriff certified that he delivered the notice to her in person. The Board convened its emergency meeting at 6:35 p.m. on February 28, 2011. Ms. Melville was not present for the meeting. The entire meeting occurred in open session. The Board considered four issues relating to Ms. Melville's alleged conduct and proposed actions, which included publicly disavowing her statements, referring her to the State Ethics Commission, directing her not to discuss Town business with Town employees without permission of the Town Administrator, and directing Ms. Melville not to enter Town department premises without express prior permission of the Town Administrator. Written motions covering each issue were prepared by outside counsel in advance of the meeting. The Board discussed and approved each motion. The signed resolutions were publicly released at the end of the meeting.

DISCUSSION
Ms. Melville makes a number of allegations against the Board, and we will address each in turn. It appears, however, that the Board acted very carefully and deliberately to quickly address a situation that required immediate attention and action by the Board. The Board Chair acted appropriately once notified by the Town Administrator of a potential problem that could have resulted in legal action against the Town. The Open Meeting Law requires that, "except in an emergency...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, 20(b). An "emergency" is defmed as "a sudden, generally unexpected occurrence or set of circumstances demanding immediate action." Id. at 18. In an emergency, "a public body shall post notice as soon as reasonably possible prior to such meeting." Id. at 20(b). The Open Meeting Law further requires that a public body conduct all deliberations during a properly posted meeting. G.L. c. 30A, 18, 20(a). A "deliberation" is defmed in relevant part as, "an oral or written communication through any medium, including electronic mail, between or among a quorum of a public body on any public business within its jurisdiction; provided, however, that 'deliberation' shall not include the distribution of a meeting agenda, [or] scheduling information." Id. at 18. A "meeting" is defined in relevant part as "a deliberation
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by a public body with respect to any matter within the body's jurisdiction." Id. A "quorum" is defined as, "a simple majority of the members of the public body, unless otherwise provided in a general or special law, executive order or other authorizing provision." Ms. Melville alleges that the Board, "could not have properly convened to take any action, including investigation of the allegations" against her at its February 28, 2011 meeting. She additionally alleges that the information which formed the basis of the allegations against her was "conveyed to the four named individual Board members by the Town Administrator and not in a convened meeting in closed session but in individual or group meetings and/or communications between and among the four named Board members and the Town Administrator," and asserts that it was improper to discuss "certain matters in open session." She further alleges that the Board "hired an outside attorney who prepared documents making charges against Melville." She alleges that the Board members discussed and approved directing the Berkshire County Sheriff to serve Ms. Melville with the emergency meeting notice. Finally, she alleges that the Board members approved disseminating documents to local news media prior to the February 28, 2011 emergency meeting. 1. The Board Did Not Violate the Open Meeting Law by Convening an Emergency Meeting on February 28, 2011. Ms. Melville's complaint essentially alleges that the Board members engaged in an unlawful deliberation by discussing the allegations made against her prior to holding a properly noticed meeting. We find no evidence to support this allegation. Board Chairman Michael Ouellette made the decision to call the emergency meeting after conferring with special counsel, with Town Administrator Jonathan Butler, and with Board Vice-Chairman Arthur Harrington. This discussion occurred between two of the five Board members. A "deliberation" is "an oral or written communication through any medium, including electronic mail, between or among a quorum of a public body on any public business within its jurisdiction." G.L. c. 30A, 18. A "quorum" is a simple majority of the Board, in this case three out of five members. Id. Because Chairman Ouellette conferred with only one other Board member prior to making the decision to hold an emergency meeting, the discussion did not reach a quorum, and thus was not a deliberation. The other Board members confirmed in written statements that they were not part of this discussion prior to the meeting. Once Chairman Ouellette made the decision to convene an emergency meeting, Town Administrator Jonathan Butler called the other Board members with the scheduling information. Ms. Melville accuses the Town Administrator of essentially facilitating a serial deliberation among a quorum of the Board members. However, the definition of "deliberation" specifically excludes communications involving "scheduling information." G.L. c. 30A, 18. Here, it was appropriate for the Town Administrator to contact the Board members, tell them details of the meeting including the time and location, as well as the general purpose. Ms. Melville claims that the Board "improperly held an open meeting" on February 28, 2011. It is not clear from the complaint whether Ms. Melville alleges that there was no valid emergency to justify the February 28, 2011 meeting. Assuming that was her concern, we find that, whether or not the allegations against Ms. Melville were true (and we make no finding regarding those allegations) the Board was justified in taking immediate action because of the
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harm that could result if the allegations were true. 2 The emergency meeting was the result on a generally unexpected occurrence, namely the alleged incident at the Council on Aging Department that very morning. An emergency meeting was, therefore, appropriate. 2. The Board did Not Violate the Open Meeting Law by Holding its Deliberations at the February 28, 2011 Meeting in Open Session. Ms. Melville claims that the Board "improperly held an open meeting and improperly discussed certain matters in open session." Ms. Melville goes on to charge that the "Board did not discuss sensitive issues in closed session, and it had no waiver from Melville to allow the discussion to be in open session." Ms. Melville objects to the meeting being held in open session. The Open Meeting Law states that a public body "may meet in executive session" for one of 10 enumerated purposes. G.L. c. 30A, 21(a) (emphasis added). A public body is never required by the Open Meeting Law to enter executive session. Other state laws may require a public body to consider a matter in executive session, but we provide no opinion about the applicability of any other statute in this matter. The Board did not need a waiver or consent from Ms. Melville to discuss allegations against her in open session. The Board would only need a waiver from Ms. Melville had they voted to enter executive session under Purpose 1 without providing Ms. Melville 48 hours written notice. See G.L. c. 30A, 21(a)(1). However, the Board never entered executive session. 3. We Find No Evidence that the Board Engaged in Deliberations Outside of its Posted Meeting on February 28, 2011. Ms. Melville alleges that the Board engaged in communications between and among the quorum to hire outside counsel, direct counsel to produce documents for use at the February 28, 2011 emergency meeting, direct a Berkshire County Sheriff to serve her with notice, and to release certain documents to the local news media. After reviewing statements by the Board members provided to this office, we find no evidence that any deliberations occurred outside of the posted February 28, 2011 emergency meeting. The Board Chairman and Vice-Chairman did meet with the Town Administrator, and together they decided to contact outside counsel. Counsel had already been retained for ongoing labor matters, therefore the Board Chairman did not act unilaterally to retain outside counsel. The other decisions that Ms. Melville alleges were made between and among the quorum appear to have been made by the three officials (Boaxd. members Ouellette and Harrington, and Town Administrator Butler) along with outside counsel. The three officials asked counsel to prepare documents for the emergency meeting and to serve notice on Ms. Melville through the Berkshire County Sheriff s office. The other two Board members were not part of these discussions. They were invited to participate in the emergency meeting. Because these discussions and decisions involved less than a quorum, no deliberation
2 This was not a hypothetical harm. In fact, the Union sent an undated letter to the Town's labor counsel following the February 28, 2011 meeting stating their concern that, "a member of the Adams Board of Selectmen, Paula Melville, approached AFSCME members employed in the Adams Council on Aging and announced that they were going to be laid off... the Union would have had no choice but to file a Charge of Prohibited Practice with the Division of Labor Relations. However, it has also come to the attention of AFSCME Council 93 that the Adams Board of Selectmen immediately met to disavow the actions taken by Ms. Melville. AFSCME appreciates the concern the Board has with present and continuing labor relations." 5

occurred.

The Board members acknowledge that Board member Jason Hnatonko stopped by the Town Hall while the Board Chairman and Vice-Chairman were discussing the allegations against Ms. Melville. Mr. Hnatonko had a previously scheduled lunch with the Town Administrator, Jonathan Butler. Mr. Butler told Mr. Hnatonko that he was unable to make the lunch because of an issue that had come up relating to Ms. Melville. All Mr. Hnatonko was told was that there might be an emergency meeting scheduled for that evening. He did not participate in any of the discussions. Mr. Harrington also states that he left when Mr. Hnatonko arrived to avoid a quorum. A public body may not engage in a serial communication whereby a quorum communicates in a non-contemporaneous manner outside of a meeting, on a particular subject matter within the public body's jurisdiction. See McCrea v. Flaherty, 71 Mass. App. Ct. 637 (2008). It does not appear a serial deliberation occurred here, because Mr. Hnatonko was only informed of the possibility of a future emergency meeting, and did not participate in any substantive discussion. Ms. Melville alleges that the Board engaged in deliberation by agreeing to release documents regarding the allegations against Ms. Melville to the local news media prior to the Board's February 28, 2011 emergency meeting. The Board denies that it released any documents related to the allegations against Ms. Melville prior to the February 28, 2011 emergency meeting. We find no evidence that Board released these documents prior to the meeting, nor do we find any evidence that there was any discussion between and among a quorum of the Board prior to the meeting regarding release of such documents. CONCLUSION We find that the Board was justified in holding an emergency meeting on February 28, 2011 and followed the proper steps to post notice ahead of the meeting. We find no evidence that a quorum of the Board engaged in deliberation prior to the emergency meeting. We also find no evidence that the Town Administrator facilitated a serial communication between a quorum of the Board prior to the Board's February 28, 2011 emergency meeting. We did not review, and make no finding regarding, the underlying allegations against Ms. Melville. We appreciate the cooperation of the Board during this investigation. We now consider this matter closed. Please contact me if you have any questions regarding this letter. Sincer ly,

onathan Sclarsic Assistant Attorney General Division of Open Government Ph: 617-963-2045

cc: Paula Melville