Richard K. Lodge: In the quest for open government

Richard K. Lodge

Two interesting stories this week about Open Meeting Law questions could prove to be precedent-setting.

In one case, the Wayland School Committee prevailed in Middlesex Superior Court on a claim filed in 2004 by the Wayland Town Crier. The Town Crier, part of the same company as the MetroWest Daily News, filed a complaint with the Middlesex District Attorney's Office after the school board discussed school Superintendent Gary Burton's evaluation behind closed doors. The committee did release minutes of executive session (closed-door) meetings and a judge ruled earlier this month that releasing those minutes satisfied the Open Meeting Law requirement.

The DA is considering appealing Judge Leila Kern's decision.

"We believe the law requires the evaluation of a superintendent of schools be done openly and in public view," said DA spokesman Corey Welford.

The committee had released minutes of the two meetings but the DA - and the Town Crier - believed individual school board members' comments about Burton's performance and the draft evaluation prepared by then-Chairman Jeff Diefenbach should be public record and should have been released along with the minutes.

The Daily News has been down this road before, in a complaint filed several years ago after individual Hudson school board member's reviews of then-Superintendent Sheldon Berman were not made public.

Berman, who is now head of the huge Jefferson County, Kentucky, school system, had been an officer in the Massachusetts Association of School Superintendents and that group donated $2,000 to the Wayland School Committee to help with legal costs in fighting the Open Meeting Law complaint. Berman always contended that a school superintendent's annual review should be considered private and part of the employee personnel file. This, in spite of the fact that in almost every town, the school superintendent is the highest paid public employee.

Another important case comes out of Hopedale, where Town Coordinator Eugene N. Phillips this week denied requests by the Milford Daily News of executive session minutes now that the reason for the executive sessions is no longer in play.

The law has a short list of specific reasons why a town board or committee can close out the press and the public and hold a discussion. The exemptions include such things as discussions of "the reputation, character, physical condition or mental health rather than the professional competence of an individual," and discussions about strategy the board might use in collective bargaining negotiations with a town employee union.

That latter exclusion is what is behind the Hopedale issue. Even though the negotiations are over and the town and a union have reached an agreement, Phillips maintains that the strategy that was discussed by selectmen behind closed doors should remain secret because future union bargaining sessions could be more difficult if the unions know what the strategy of the town might be.

That presumes that negotiators from one town employee union never talk to their counterparts in another local union to compare notes about how contract talks with the selectmen went. Union contracts are public records, so if the town agrees to 2 percent raises this year and 1 percent next year for the firefighters' union, it's not a reach to assume unions will talk and the first contract agreement will set something of a precedent for other agreements.

The strategy discussion exemption in the Open Meeting Law applies both to strategy discussions "with respect to collective bargaining or litigation." So discussions a board has about a lawsuit filed against the board or town can, under the law, be done in secret.

The larger problem with Hopedale's refusal to release these executive session minutes is that it sets a precedent in which any strategy discussion behind closed doors could be kept secret - whether it's about bargaining with a union or strategy in defending against a lawsuit. Officials could argue those strategies could be used some other time, with another union or in another lawsuit against the town. Under that rationale, taxpayers would never know how board members think, interact, disagree and reach consensus, and there would be no way to know what individual members "bring to the table," in terms of ideas, biases or, frankly, ignorance, when it comes to collective bargaining or litigation.

The difference of opinion in Hopedale between selectmen and the newspaper has a ways to go before there's a resolution. This kind of dispute is just part of the process to get clarity in the Open Meeting Law and how it's interpreted. From our point of view, the more light that shines on how our local governments work, the healthier our democracy.

Readers can find out more about the Massachusetts Open Meeting Law by going online to the Massachusetts Attorney General's Web site and scrolling down to the "Government" section.

Richard Lodge is editor of the Daily News and writes a column published on Friday. His e-mail is