In a decision issued on March 28, 2025 a panel of the Massachusetts Appeals Court has analyzed in detail the attorney-client privilege of municipal entities. Kay v. Town of Concord, No. 23-P-1271 (2025), involved an appeal from a Superior Court judgment that the plaintiffs were not entitled to obtain unredacted emails involving communications between Town officials regarding a public dispute regarding a trail in the Town and abutting property owners. The Town had redacted the emails in response to a discovery request and a later request under the Public Records Law on the basis that they were communications covered by the Town’s attorney-client privilege and by the work product doctrine (both of which municipal privileges had been established by prior decisions).

On appeal the Appeals Court affirmed in part and reversed in part. The court first rejected the plaintiffs’ argument for a per se rule that the privilege could not apply to all emails that did not involve the Town’s attorney. Noting prior decisions at odds with this argument, the court observed in addition that there was no dispute that the Town is a “client” or that the Town Manager and members of the Select Board are the Town’s “agents”. The court pointed out that in order for the Town to obtain legal advice or to discuss taking action based on that advice, some discussions “will necessarily be outside of direct communications with counsel.” The court therefore held that “when the town manager and members of the select board communicate amongst themselves for the purpose of obtaining legal services, … those communications may be protected by the [Town’s] attorney-client privilege” even if the Town’s attorney is not on the communications.

Next, the court noted that it was not expanding the generally narrow scope of the attorney-client privilege but that, instead, the Town had to show that each of the communications still meets the requirements of that privilege. It observed that the absence of counsel in a communication is one relevant factor. In those circumstances the court held that “the ultimate standard” is “whether the communication revealed legal advice from, or the intent to request legal advice from, an attorney in some fashion.” Examining each email closely the court ruled that four emails met this test. It decided, however, that others did not. The court pointed out that “prior consultation with town counsel on a particular subject does not magically cloak all future discussions among municipal officials on that same issue”. Instead, these emails were “mere deliberations and musings among town officials” about “what to do with the trail” that would not have been privileged “even if town counsel is included.” In a footnote the court observed that “this is not a case where town officials communicated with each other at the behest of counsel to gather more information.”

The court also found that one email refers to information gathered by a town employee at counsel’s request. It held that because the email reveals “town counsel’s mental impressions” it fits within the Town’s separate work product privilege.[1]

One of the Justices also issued a concurring opinion emphasizing that the court’s ruling is consistent with the narrow scope of what is covered by the attorney-client privilege.

This is the first appellate decision that examines in detail the application of these privileges to municipal communications. It is unclear whether any party will seek further appellate review by the Supreme Judicial Court or whether such an application would be granted. Absent that, however, this decision provides important guidance to municipal/school officials regarding what is and is not covered by the attorney-client privilege and by the work product doctrine, both in terms of a public records request and in ensuring that communications will be considered privileged. There are nuances which are likely to vary from case to case and any doubts should be resolved by seeking the advice of counsel.

We are happy to provide advice in these and related areas to public entities and bodies.

[1] The court flatly rejected an argument by the plaintiffs that the Open Meeting Law is a “statutory waiver” of the Town’s attorney-client privilege, finding instead that the Law’s 2010 revision actually “strengthened” the privilege.

This update is provided for informational purposes only and should not be considered legal advice.

Valerio Dominello & Hillman, LLC is pleased to announce that effective January 1, 2025, Attorney Thomas Costello has become an Equity Member in the firm.

Thomas H. Costello

VDH recognizes the valuable contributions that Mr. Costello has made to our clients and to our firm.

The bio for Mr. Costello is available on our website, or through the link below the photo above.

The Department of Education through its Office of Civil Rights (“OCR”) has announced in a “Dear Colleague” letter that Title IX will be enforced under the provisions of the 2020 Title IX rule rather than the more recent 2024 Title IX Rule. There are two catalysts for this announcement: a ruling by the Eastern District of Kentucky and President Trump’s Executive Order.

The 2024 Rule had expanded the scope of Title IX’s protection in several respects. On January 9, 2025, the United States District Court for the Eastern District of Kentucky entered an order vacating the 2024 Title IX Rule[1], and prohibiting the Department of Education from enforcing the 2024 Rule in any jurisdiction. Prior to that decision, federal courts in other jurisdictions had enjoined the 2024 Rule, amounting to a prohibition against its enforcement in 26 states. Moreover, according to OCR, every court presented with a challenge to the 2024 Rule has indicated that it is unlawful.

On January 20, 2025, President Trump issued an Executive Order: “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”. This Executive Order directly contravenes the 2024 Rule’s expansive definition of conduct “on the basis of sex” by ordering all agencies and departments within the Executive Branch to “enforce all sex-protective laws to promote [the] reality” that there are “two sexes, male and female,” and that “[t]hese sexes are not changeable and are grounded in fundamental and incontrovertible reality.”

OCR announced that, in its view, the federal court’s decision expressed the proper textual and original meaning of Title IX. Accordingly, OCR does not recognize the expanded meaning of ‘on the basis of sex’ to include ‘gender identity’ as had been recognized in the 2024 Rule.  Likewise, the court rejected the 2024 Rule’s provision that discrimination on the basis of sex also includes discrimination on the basis of sex stereotypes, sex characteristics, and sexual orientation. Moreover, OCR recognizes the President’s interpretation of the law as governing, because he alone controls and supervises subordinate officers who exercise discretionary executive power on his behalf. The Education Department and OCR are subordinate offices of the Executive Branch; therefore, Title IX must be enforced consistent with the executive order.

In light of the federal court decisions and the executive order, the binding regulatory framework for Title IX enforcement includes the principles and provisions of the 2020 Title IX Rule and the longstanding Title IX regulations outlined in 34 C.F.R. 106 et seq., but excludes changes made by the vacated 2024 Rule. Accordingly, open Title IX investigations initiated under the 2024 Rule should be reoriented to comport fully with the requirements of the 2020 Rule.

It is essential to keep in mind that none of this affects the validity and applicability of similar provisions under Massachusetts law and school districts must continue to comply with those requirements.

The consequences of these changes are complicated. It is advisable that school districts confronted by issues falling under Title IX and under related Massachusetts provisions obtain legal advice. This includes decisions by school committees to amend and/or establish policies regarding these questions.

We are happy to advise school committees in these areas and in others.

This update is provided for informational purposes only and should not be considered legal advice.

[1] Tennessee v. Cardona (2025)

On October 7, 2024 the Massachusetts Appeals Court issued a decision in O’Malley, et al. v. Contributory Retirement Appeal Board, et al., No. 23-P-1147 (2024). That decision affirmed a decision by the Contributory Retirement Appeal Board (“CRAB”), which had denied a claim by two former employees that retirement deductions for certain work they had performed should be included in calculating their accidental disability retirement allowances.

The two retirees were a Brockton Schools Resource Officer and a Brockton Schools custodian. In addition to their regular duties, each had performed additional work as school crossing guards. Both had retired for accidental disability after being injured at work. Historically, pay for this crossing guard work had been treated by the Brockton Retirement Board as “regular compensation” which is used to calculate retirement allowances under G.L. Chapter 32. Retirement deductions were made to the Retirement Board for this work by the retirees. Following proceedings that resulted in the Superior Court’s decision affirming CRAB’s rejection of their claim, the retirees appealed.

The Appeals Court ruled first on whether these additional payments are included in “regular compensation” under the statute. The record showed that while employed the employees “could work traffic duty whenever they chose to do so, traffic duty was not a part of their contractual duties, their hours varied, … compensation for traffic duty was irregular and akin to overtime pay [and they] were paid their overtime rate for traffic duty.” Based on this the court ruled that these payments “lack the ‘ordinary’ nature required for an employee’s regular compensation under G. L. c. 32, § 1.”

The court then addressed the retirees’ argument that they had relied on the fact that deductions were made. The court distinguished circumstances where an employee relies on a specific statute which is later changed and the facts in the case before it, which involved erroneous deductions. The court noted that the retirees’ claim was based “solely on the board’s erroneous practice of deducting retirement contributions” but that “there may be a degree of facial appeal to the equitable nature of the” claim. Nonetheless, the court decided that “expectations grounded in an administrative board’s error are not the same as expectations grounded in a statutory right” and that the error “is not a tenable basis to ignore the language and meaning of “regular compensation” under G. L. c. 32.” In a footnote the court noted that the Retirement Board had confirmed that the erroneous deductions would be returned to the retirees if CRAB’s decision was affirmed.

This decision shows that the courts will continue to construe “regular compensation” in accordance with the basic concept under Chapter 32 and PERAC’s regulations that irregular, occasional, one-time, and similar payments for work are different from regular, predictable, and recurring wages.

We are pleased to provide advice to employers regarding obligations under the Contributory Retirement Law, including issues involving appropriate deductions and remedies that involve the employer and its relationship to the retirement system.

This update is provided for informational purposes only and should not be considered legal advice.