SJC Overrules Attorney General’s Open Meeting Law Guidance Regarding Circulation of Employee Performance Evaluations to Quorum of Board of Selectmen in Advance of an Open Meeting

On April 5, 2018, the Supreme Judicial Court held in Boelter v. Board of Selectmen of Wayland, SJC-12353, that the email circulation of employee performance evaluations among a quorum of a public body in advance of an open meeting violates the Open Meeting Law, G.L. c. 30A, §§ 18, 20 (the “OML”) unless the evaluations are publicly disclosed at the same time. This decision overrules guidance previously issued by the Attorney General, which provided that the circulation of evaluations to a quorum falls within the law’s exemption for the simple distribution of materials, as long as the body of the email itself expresses no “opinion.”

In the Wayland case, the board of selectmen was preparing for its annual evaluation of the town administrator.  In advance of an open meeting, the board members submitted individual evaluations to the chair, who then compiled the individual evaluations into a composite evaluation.  The chair circulated an e-mail to all members of the board containing the composite evaluation and the individual evaluations as attachments.  The covering email expressed no opinion.

The SJC concluded that the chair’s email to the board members, containing the attached evaluations, constituted a “deliberation” outside of a properly posted meeting in violation of the OML. Under the OML, a “deliberation” is any oral or written communication “between or among a quorum of a public body on any public business within its jurisdiction,” but the law contains an exception for the “distribution of a meeting agenda, scheduling information or distribution of other procedural meeting [sic] or the distribution of reports or documents that may be discussed at a meeting, provided that no opinion of a member is expressed.” G.L. c. 30A, § 18.

Because the attached evaluations contained board members’ opinions about the town administrator, they did not fit within the law’s exception for the distribution of reports and documents. It did not matter that the body of the email itself expressed no opinion. Thus, the court ruled that the evaluations could not lawfully be distributed among a quorum of the board members prior to an open meeting.

The court recognized, however, that efficiency often requires members of public bodies to be able to review evaluations in advance. The court suggested that email distribution of evaluations among a quorum is permissible if the evaluations are publicly disclosed at the same time, such as on the town website. That way, members can review the documents in advance without thwarting the OML’s fundamental goal of transparency in government.

This ruling substantially alters the evaluation process conducted by boards of selectmen, school committees, and other governmental bodies. While it appears that members may still submit individual evaluations to the chair, from which the chair may then prepare a composite evaluation, the chair now cannot circulate the evaluations to a quorum in advance of the open session at which the evaluation is discussed without ensuring that the documents are also made publicly available in advance.

If you have any questions regarding the content of this update, or any other questions regarding labor and employment law or school law generally, please contact us.

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