Nick Dominello to Present at 2024 COSA School Law Seminar

On Thursday, April 4, 2024 Nick will present at the 2024 Council of School Attorneys (COSA) School Law Seminar in New Orleans. Nick will be presenting a workshop on collective bargaining.

Liz Valerio Presents at MMA Monthly Meeting

On Wednesday, March 27, 2024 Liz presented at the Massachusetts Mayor’s Association (MMA) Monthly Meeting. Liz will be hosting a workshop on collective bargaining.

Liz Valerio and Nick Dominello Present at MASPA Annual Law Day

On Friday, March 22, 2024 Liz and Nick presented at the Annual Massachusetts Association of School Personnel Administrators (MASPA) Annual Law Day. Liz and Nick hosted a collective bargaining workshop on employee speech and leaves and accommodations.

Liz Valerio and Ann Marie Noonan Present at MMAAA Annual Education Program

On Tuesday, March 19, 2024 Liz and Ann Marie presented at the Massachusetts Municipal Auditors’ & Accountants’ Association (MMAAA) Annual Education Program. Liz and Ann Marie presented a collective bargaining workshop on preparing for and trends in collective bargaining.

Appeals Court Clarifies the Reasonableness Standard for Public Records Requests

On March 15, 2024, the Massachusetts Appeals Court issued a decision in Friedman v. Division of Administrative Law Appeals, No. 23-P-369, which decided whether certain public records requests adequately describe the records sought. The Massachusetts Public Records Law, G.L. c. 66 § 10(a), requires state governmental agencies to provide access to public records so long as three conditions are met, including a requirement that the request “reasonably describes the public record sought.” This requirement is generally met when the request is specific enough to allow a professional employee to locate the record with a reasonable amount of effort.

At issue in Friedman were five public records requests submitted by Bruce Friedman, who is the founder of a community-based news outlet, to the Bureau of Special Education Appeals (the “Bureau”). The Bureau initially agreed to produce documents to Friedman on a rolling basis without charge. However, the Bureau stopped producing documents because Friedman kept submitting more public records requests, which interfered with the Bureau’s attempts to comply. Friedman sued the Bureau under the Public Records Law, seeking to compel production responsive to the five records requests. The Superior Court dismissed his complaint and Friedman appealed, resulting in the decision by the Appeals Court.

The court addressed Friedman’s first request which sought all e-mail and text messages between the Bureau and anyone with an email domain belonging to a law firm that conducted business before the Bureau during a three-year timeframe. Although this request was extensive and burdensome on the Bureau, encompassing 11,000 documents, the court found that the Bureau has a duty to provide the records because the documents can be identified with reasonable effort. The court dealt differently with Friedman’s second request, which sought text messages exchanged between Bureau staff and “anyone who currently works or has worked” at the law firm over a five-year period. The court found the request unreasonable because Friedman did not identify the names of past or present employees of the law firm nor did he provide cell phone numbers. The court held that this would have required the Bureau to determine each person who worked at the law firm and their cell phone numbers.

The court also found that two more of Friedman’s requests did not reasonably describe the records sought. One of these requests sought “any and all data contained in the case management system” used by the Bureau over a fourteen-year period. The other request covered “any and all raw data in any format” concerning twelve separate categories of information over the same period. The court reasoned that these were broad sweeping requests that lacked specificity. The court decided, however, that Friedman’s final request was reasonable. That request sought the calendars of the Bureau’s Director. Because the Bureau was able to identify the responsive data, the court found that the request reasonably identified the records sought.

The court’s ruling states clearly that the relevant inquiry is whether the request is specific enough that the documents requested can be identified with reasonable effort. The court did not find that any of Friedman’s requests were too burdensome to meet the “reasonably describes” requirement. Recognizing that the litigation was only in the initial pleadings stage, the court, in a footnote, stated that a request “could simply be too burdensome to meet the ‘reasonably describes’ requirement”, and did not rule out the possibility that the Bureau might substantiate this with specific facts at a later stage in the case.

Governmental entities should be aware of Friedman because it shows how courts will apply the rule that public records requests must be reasonably described. State and local government agencies are well-advised to work with requestors to narrow down onerous requests, including identification of the documents sought and the timeline for production.

If you have any questions about the content of this update or about the Public Records Law, our attorneys are pleased to assist public officials with all public records issues.

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

Supreme Court Sets Test for When Officials’ Social Media Use is State Action

On March 15, 2024, the United States Supreme Court issued a unanimous decision in Lindke v. Freed, No. 22-611, which clarified when a state official can be held liable under the First Amendment for blocking someone from their personal social media account. 42 U.S.C. § 1983 provides a cause of action against any official who deprives someone of a constitutional right, including the First Amendment right to free speech, when the official is acting in their government role such that their acts are attributable to the state. In Lindke, the Supreme Court established a new, two-pronged test to determine when an official’s social media use is state action and, therefore, subject to a § 1983 claim.

The official implicated in Lindke, James Freed, is the city manager of Port Huron, Michigan. He ran a public Facebook page where he posted primarily about his personal life but also posted information related to his job, such as highlighting communications from other officials and soliciting feedback from the public on issues of public concern. Freed’s Facebook page was not clearly designated as being either personal or professional. When Freed posted about the COVID-19 pandemic, Kevin Lindke commented on his posts to express displeasure with the city’s approach to the pandemic. Freed blocked Lindke and deleted his comments. Lindke then sued Freed under 42 U.S.C. § 1983, alleging that Freed had violated his First Amendment rights. The District Court dismissed the case and the Sixth Circuit affirmed. After articulating the new standard, the Supreme Court remanded back to the Sixth Circuit. The Supreme Court also remanded a companion case, O’Connor-Ratcliff v. Garnier, No. 22-324, to the Ninth Circuit in light of the decision in Lindke.

Under the first prong of its test, the Court held that it is not enough that the official has “some authority to communicate with residents on behalf of” the local government. Instead, the “alleged censorship must be connected to speech on a matter within [the official]’s bailiwick.” The Court pointed out that “[t]he inquiry is not whether making official announcements could fit within the job description; it is whether making official announcements is actually part of the job that the [governmental body] entrusted the official to do” [emphasis in original].

Moving to the second prong of the test, the Court held that “[f]or social-media activity to constitute state action, an official must not only have state authority—he must also purport to use it.” Because Freed’s social media page “was not designated either ‘personal’ or ‘official,’” this “rais[ed] the prospect that it was ‘mixed use’—a place where he made some posts in his personal capacity and others in his capacity as city manager.” The Court ruled that “[c]ategorizing posts that appear on an ambiguous page like Freed’s is a fact-specific undertaking in which the post’s content and function are the most important considerations.”

The Court noted that:

“[h]ard-to-classify cases require awareness that an official does not necessarily purport to exercise his authority simply by posting about a matter within it. He might post job-related information for any number of personal reasons, from a desire to raise public awareness to promoting his prospects for reelection.”

The Court therefore decided that:

“it is crucial for the plaintiff to show that the official is purporting to exercise state authority in specific posts. And when there is doubt, additional factors might cast light—for example, an official who uses government staff to make a post will be hard pressed to deny that he was conducting government business.”

Further complicating the analysis, the Court differentiated Freed’s “deletion” of the plaintiff’s comment from “blocking” him. It pointed out that “[s]o far as deletion goes, the only relevant posts are those from which Lindke’s comments were removed” but, because “blocking operated on a page-wide basis,” the analysis must determine whether Freed “engaged in state action with respect to any post on which Lindke wished to comment” [emphasis added].

The Court summarized its complex analysis by stating the obvious consequence – “[a] public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.”

Lindke is important because it is the first time the Supreme Court has ruled on the social media activity of public officials. While the Court strove earnestly to balance the First Amendment rights of government officials using social media with the rights of those reading their posts,  officials should be cognizant of the Lindke test. The decision graphically illustrates the risks of using a personal social media account to post about government business and to delete or block comments.

If you have any questions about the content of this update or about implications for your social media usage, please contact us. We are pleased to assist public officials with all First Amendment issues.

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

First Circuit Holds That Parent Has No First Amendment Right to Record Child’s IEP Team Meeting

On January 4, 2024, the United States Court of Appeals for the First Circuit issued a decision in Pitta v. Medeiros, No. 23-1513, affirming the dismissal of a parent’s claim that a Massachusetts school district (“the District”) and its Administrator for Special Education violated his First Amendment rights when they refused his request to video record his child’s private, individualized educational program (“IEP”) team meeting. In so holding, the First Circuit concluded that video recording an IEP team meeting is not protected by the First Amendment.

In February and March 2022, the parent and District employees attended two virtual IEP team meetings to discuss and develop a new IEP for his child. Following these meetings the parent alleged that certain statements were not included in the team meeting minutes, objected to the minutes as an official record of the meetings, and requested that the minutes be amended to include the omitted portions. No amendments were made. Months later, in September 2022, the parent attended another IEP team meeting, which was conducted virtually through a password protected Google Meet. The parent requested that the District employees record the meeting using the Google Meet record function. The District refused his request, stating that it would be invasive and was not permitted by District policy; however, the District offered to audio record the meeting instead. Once the meeting began the District announced that the meeting was being audio recorded and the parent responded that he was video recording. The Administrator for Special Education informed the parent that if he did not stop his video recording she would end the meeting. When the parent refused to discontinue video recording the meeting was ended. The parent then filed a lawsuit in United States District Court seeking declaratory and injunctive relief.

The District Court dismissed the parent’s complaint for failure to state a claim and the parent appealed. On appeal, the First Circuit affirmed the dismissal. The Court reasoned that the First Amendment does not protect video recording an IEP team meeting because: (1) such meetings do not occur in a public space; (2) school staff who attend IEP team meetings are not included in the definition of “public officials” as the term has been applied in First Circuit precedent; and (3) there was no corresponding right of the public to receive the information or, therefore, any intent that it be disseminated.

In particular, the Court explained that a student’s IEP team meeting, whether virtual or in person, is ordinarily not conducted in a “public space” because these meetings involve the discussion of sensitive student information. The Court added that school employees attending IEP team meetings are not akin to the public officials in the decisions cited by the parent, which generally involved law enforcement officers performing duties in obviously public spaces. Finally, the Court reasoned that its precedent has repeatedly framed the right to record public information as being linked to the right of the public to receive this information. In contrast, the Court held no such interest would be served by video recording an IEP team meeting because the information at the meeting is not intended to be disseminated to the public.

Although the Court concluded that there is no First Amendment right to record an IEP team meeting, the Court further held that even if there were such a right the parent’s claim would still fail. It ruled that the District’s policy prohibiting video recording of IEP meetings promotes a substantial government interest because it promotes candid conversations in the discussion and development of IEPs in order to provide students with a free appropriate public education as required by the Individuals with Disabilities Education Act (“IDEA”) while leaving open alternative means for collecting and memorializing information from IEP team meetings. The Court stated that the policy serves a purpose unrelated to the specific content of the meeting and would therefore survive First Amendment challenge.

The First Circuit’s decision in Pitta makes clear that the right to film public employees performing their duties is context specific and does not extend to events such as student IEP team meetings.  It should be noted that this decision only addresses the parent’s claim under the First Amendment and does not address whether a parent has a right to video record an IEP team meeting under any federal or state statute or regulation. If you have questions about the content of this update, please contact us. We are pleased to assist public employers with all issues related to First Amendment compliance and/or to the conduct of IEP Team meetings.

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

VDH Announces New Elevations

Valerio Dominello & Hillman, LLC is pleased to announce that effective January 1, 2024, attorneys Jennifer King, Eric McKenna, and Ann Marie Noonan have become Equity Members in the firm.

Jennifer King                         
Jennifer King                        Eric McKenna                   Ann Marie Noonan

VDH recognizes the valuable contributions that each of these attorneys has made to our clients and to our firm.

Bios for each attorney are available on our website, or through the links below the photos above.

Liz Valerio To Present at the MMA Annual Meeting Workshop Series

On Friday, January 19, 2024 Liz will present at the Massachusetts Municipal Association (MMA) Annual Meeting. Liz will be hosting a collective bargaining workshop for the Massachusetts Municipal Human Resources (MMHR) on responding to grievances and navigating arbitration. For more information, please click here.

Rob Hillman to Present at MMA Newly Elected Training

Rob Hillman will present at the Massachusetts Municipal Councillors’ Association (MMA) Newly Elected Training on Saturday, December 9, 2023. Rob will be presenting on general guidelines for council rules and code of conduct. For more information, please click here.