Court clarifies ‘deliberation’ in open meeting law

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Members of a public body may submit individual evaluations of an employee for assembly into a master evaluation, but the composite document may not be circulated among members in advance of an open meeting, according to a recent decision by the state’s highest court.
 
The Supreme Judicial Court decision applies to all public bodies that evaluate the professional competency of an employee.
 
Five registered voters in the town of Wayland had filed suit in Superior Court to challenge the procedure by which the Board of Selectmen conducted the 2012 performance review of the town administrator. The board members had submitted individual evaluations to the chair, who created a composite evaluation and emailed it as an attachment to each board member with an agenda packet before the open meeting. The board reviewed, discussed and approved the composite evaluation at the meeting, then released it to the public.
 
The Superior Court held that the board violated the open meeting law because the performance evaluations contained board members’ opinions, which must be deliberated in an open forum. The Supreme Judicial Court agreed, citing transparency in government: “It is essential to a democratic form of government that the public have broad access to the decisions made by its elected officials and to the way in which the decisions are reached.”
 
Following the court’s decision, the Attorney General’s Office amended its guidance on public deliberations as part of performance evaluations. For boards that prefer to collect individual evaluations and create a master document, the best practice is to have someone who is not a member of the public body, such as an administrative assistant or an executive secretary, collect and assemble the composite evaluation. If such person is unavailable, an individual member may collect and assemble the evaluations. The compiled document may then be distributed to members either at an open meeting or by posting it to the municipal website, to which the public has access prior to an open meeting, with paper copies available at the city or town clerk’s office.
 
The advisory cautions that members may not discuss the composite evaluation outside of a properly posted public meeting, even though it is posted to a website.
 
The advisory can be found at https://www.mass.gov/service-details/frequently-asked-questions-about-the-open-meeting-law-public-bodies-quorum-and; scroll down to “Evaluations.”