THE COMMONWEALTH OF MASSACHUSETTS

OFFICE OF THE ATTORNEY GENERAL

ONE ASHBURTON PLACE
BOSTON, MASSACHUSETTS 02108
MAURA HEALEY TEL: (617) 727-2200
ATTORNEY GENERAL www.mass.gov/ago

May 29, 2018

OML 2018-73

Joslin Murphy, Town Counsel

Town of Brookline
333 Washington Street
Brookline, MA 02445

RE: Open Meeting Law Complaint

Dear Attorney Murphy:

This letter concerns ten related complaints filed by Thomas O'Reilly, president of Pine
Manor College, alleging violations of the Open Meeting Law by the Brookline Board of
Selectmen ("the Board"), the Brookline School Committee ("the Committee"), and the Brookline
9th School Ad Hoc Subcommittee of the Advisory Committee ("the Subcommittee"). Following
our review, we conclude that the Brookline public bodies acted in accordance with the Open
Meeting Law with respect to their meetings and executive session discussions, and find error
only as it pertained to the specificity of certain meeting notices. We find that, while notice of
certain executive session discussions was provided to Pine Manor College, notice should have
also been provided to the general public.

Our office received ten related complaints from Mr. O'Reilly alleging that the Board, the
Committee, and the Subcommittee violated the Open Meeting Law, G.L. c. 30A, §§ 18-25.1 The
complaints were originally filed with the three public bodies on October 4, 2017, and the public
bodies responded by letter dated October 27, 2017. The complaints were then filed with our
office on November 14, 2017. The complaints allege that the three public bodies violated the
Open Meeting Law by: (i) holding executive sessions without a valid statutory purpose; (ii)
providing insufficient information about topics to be discussed in the executive session, and (iii)
failing to follow proper procedure prior to convening in executive session. Because of these
errors, the complaints argue that the minutes of certain joint executive sessions must be released.
The complaints also allege that the Committee and Subcommittee created insufficiently detailed
meeting minutes.2

1 As of November 2017, the Board is called the Brookline Select Board, as opposed to the Brookline Board of
Selectmen. Because the former title was in use during the time period addressed in this letter, we use it here.
2 The request for further review filed with our office also alleges that the Board and the Committee failed to approve

meeting minutes in a timely manner. Because this allegation is not found in any of the complaints filed with the

O
 We appreciate the patience of the parties while we reviewed these complaints. In
reaching this determination, we reviewed the complaints, the public bodies' response, and the
request for further review filed with our office. We also reviewed supplementary letters from the
complainant's attorney dated December 22, 2017 and January 8, 2018. We reviewed a
supplemental response letter from the public bodies' legal counsel dated December 8, 2017,
along with supplementary e-mails from the legal counsel dated April 4, 23, 25, and 26, 2018, and
we spoke with the public bodies' legal counsel by telephone on November 21, 2017.3 Finally,
we reviewed in camera the minutes of joint executive sessions held by the Board, Committee,
and Subcommittee on September 5, 12, and 19, 2017, as well as an executive session held by the
Board on September 26, 2017.

FACTS

We find the facts as follows. For more than a decade, the Town of Brookline has sought
a site for a ninth elementary school. In October 2016, the town announced a decision to
construct a ninth elementary school at the site of the Baldwin School. This decision prompted a
negative response from the Baldwin School's neighbors, including threats of litigation. In April
2017, the National Parks Service ("NPS") issued a decision stating that portions of the Baldwin
School property were protected parkland. The town appealed this decision, and the NPS upheld
its original decision in August 2017.

The complainant is the president of Pine Manor College, a liberal arts college located in
Brookline. At issue are joint meetings between the Board, the Committee, and the
Subcommittee held on September 5, 12, and 19, 2017, as well as a Board meeting held on
September 26, 2017. The three public bodies posted notice of joint meetings to be held on
September 5,12, and 19, 2017. Each body posted its own notice, but all used similar language,
describing an anticipated joint executive session pursuant to two executive session purposes:
Purpose 6, for the purpose of discussing the purchase, exchange, lease or value or real property;
and Purpose 3, for the puiposes of discussing anticipated litigation strategy pertaining to the
proposed ninth elementary school at Baldwin. The notice did not give any more information
about what particular parcels of property the bodies anticipated discussing. On September 5, the
day of the first joint executive session, the town administrator contacted the complainant as a
"courtesy" and informed the complainant that the three public bodies were meeting in executive
session to discuss acquiring by eminent domain a portion of the college's property for purposes
of building a school.

At the September 5, 12, and 19, 2017 meetings, Board chair Neil Wishinsky stated the
purposes for the executive sessions and stated that the meetings would reconvene in open session
following the executive sessions. Each public body took its own roll call vote before entering
executive session, however the Committee and Subcommittee chairs did not independently
announce the purposes for the executive sessions, and they did not make any supplementary
statements prior to entering executive session. The minutes of these executive sessions have not

bodies, we decline to review it now. See OML 2018-50, n. 1. However, we take this opportunity to remind the
bodies that the current Open Meeting Law regulations, which took effect on October 6, 2017, require bodies to
create and approve meeting minutes within three meetings or within thirty days, whichever is later. 940 CMR
29.11(2).
3 For the sake of clarity, we refer to you in the third person.
been released, and we therefore do not recount their contents in detail. We note generally that
during the September 5, 12, and 19, 2017 executive sessions, the bodies discussed strategy with
respect to a potential appeal of the NPS determination, as well as the potential acquisition of
alternate elementary school sites.

The Board posted notice of a meeting to be held on September 26, 2017. Notice for this
meeting stated that the Board would convene in executive session to discuss potential litigation,
although the notice did not identify the litigation to be discussed. While the minutes of this
executive session have also not been released, we have reviewed them and we note that the
Board discussed a matter wholly separate from the potential NPS appeal or the building of a new
elementary school. Following this executive session, the Board reconvened in open session and
the chair read a statement indicating that the three public bodies had discussed the potential
taking of portions of Pine Manor College's property by eminent domain.

The Subcommittee held a meeting on October 24, 2017. During this meeting, which took
place entirely in open session, the Subcommittee reviewed and edited the minutes of the
September 5, 12, and 19, 2017 join executive sessions.

DISCUSSION

I. The Executive Sessions at Issue Were Held for Valid Purposes.

All meetings of a public body must be conducted in an open session, unless a closed-door
executive session is convened. G.L. c. 30A, §§ 20(a), 21(a). One such statutory purpose for
executive session permits a public body "to discuss strategy with respect to collective bargaining
or litigation if an open meeting may have a detrimental effect on the bargaining or litigating
position of the public body and the chair so declares." G.L. c. BOA, § 21(a)(3) ("Purpose 3").
Another purpose for executive session is to "consider the purchase, exchange, lease or value of
real property if the chair declares that an open meeting may have a detrimental effect on the
negotiating position of the public body." G.L. c. 30A, § 21(a)(6) ("Purpose 6").

The complaints allege that the public bodies entered executive session during the
meetings at issue without a valid statutory purpose. Specifically, the complaints allege that there
was no pending or imminently threatened litigation to justify an executive session under Purpose
3, and that there was no ongoing negotiation regarding real property to justify an executive
session under Purpose 6. Following our review of the relevant executive session minutes, we
reject these arguments. The bodies discussed strategy with respect to a potential appeal of the
NPS determination. In past determinations, we have stated that the discussion of whether to
appeal an administrative or similar determination may be had in executive session under Purpose
3. See OML 2017-9.4 The bodies also discussed the potential acquisition of alternate
elementary school sites. These discussions related to the values of the properties, and, based on
our review of the executive session minutes, we conclude that the disclosure of these strategic
conversations could have negatively impacted the town's negotiating position. We therefore find
that they were within the scope of Purpose 6. See OML 2017-95. We find no violation of the
Open Meeting Law with respect to this allegation.

4Open Meeting Law determinations may be found at the Attorney General's website:
www.mass.gov/ago/openmeeting.

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 II. The Meeting Notices Lacked Sufficient Information about Real Property to be
Discussed in Executive Session Pursuant to Purpose 6.

The Open Meeting Law requires that all meeting notices include "a listing of topics that
the chair reasonably anticipates will be discussed at the meeting." G.L. c. 30A, § 20(b). The
notice must list those topics with "sufficient specificity to reasonably advise the public of the
issues to be discussed at the meeting." 940 CMR 29.03(l)(b). This level of detail is required for
both open session and executive session topics. See District Attorney for N. Dist. v. Sch. Comm.
of Wavland. 455 Mass. 561, 567 (2009) ("[a] precise statement of the reason for convening in
executive session is necessary under the open meeting law because that is the only notification
given to the public that the school committee would conduct business in private, and the only
way the public would know if the reason for doing so was proper or improper").

The complaints allege that the notices did not identify the property to be discussed under
Purpose 6. Purpose 6 is intended to preserve confidentiality in negotiating the value of the
property to be purchased, exchanged or leased to avoid putting the public body at a disadvantage
in its negotiations for the property. See District Attorney for the Plymouth Dist. v. Selectmen of
Middleborough, 395 Mass. 629, 631 (1985). A public body must disclose some descriptive
information about real property to be discussed, unless disclosure of this information would
compromise the purpose for the executive session. See OML 2016-5. While we generally defer
to a public body's assessment of when the disclosure of information will compromise the
purpose for an executive session, the body must be able to provide a reasonable explanation for
such a decision if challenged. See OML 2015-14. Here, we find that the disclosure of the fact
that the bodies were discussing the potential acquisition of the college's property would not have
sacrificed the lawful purpose for secrecy. The town administrator affirmatively provided notice
to the complainant on the day of the first joint executive session, demonstrating that the topic
could be revealed to the adversarial party without a loss in the town's position. See Allen v.
Board of Selectmen of Belmont, 58 Mass. App. Ct. 715, 719-20 (2003) (lawful reason for
Purpose 6 executive session compromised where opposing party in a real estate transaction is
privy to the public body's discussions). This is particularly true with respect to the September 12
and 19, 2017 notices, since they were posted after the September 5, 2017 phone call to the
complainant. It does not appear that the potential acquisition of property at Pine Manor College
had been disclosed to the complainant at the time the September 5, 2017 notice was posted, and
we therefore decline to find that the bodies should have disclosed the identity of the property
under consideration on the notice for that meeting. Because we find that identifying the property
under discussion would not have compromised the negotiating positions of the bodies following
the September 5, 2017 phone call, the omission of this information from the September 12 and
19, 2017 notices violated the Open Meeting Law. Id We note that the complainant was
informed that Pine Manor College would be discussed during the executive sessions at issue,
and, indeed, we commend the town for providing such notice to the complaint. The violation
here stems from the bodies' failure to provide comparable notice to the public so that members
of the public could understand what the bodies would discuss in executive session.

III. The Bodies Followed Proper Procedure Before Convening in Executive Session.

Before a public body may convene in executive session, certain procedural steps must be
taken. See G.L. c. 30A, § 21(b). The body must first convene in an open session; a majority of
members of the body must vote to enter executive session; the chair must state the purpose for

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the executive session; and the chair must announce whether the open session will reconvene at
the conclusion of the executive session. Id,

Here, the complaints allege that the Committee and Subcommittee chairs failed to make
required statements prior to convening in executive session. Before convening in executive
session under Purpose 3, the chair must declare that discussing the matter in open session would
compromise the body's litigating of negotiating position. G.L. c. 30A, § 21(a)(3). Here, Chair
Wishinsky publicly stated the purposes for the executive sessions, and the Committee and
Subcommittee members voted to, in effect, adopt Chair Wishinsky's statement. On these facts,
we conclude that a reasonable member of the public present prior to the executive session would
have understood that the Board chair was announcing the purposes on behalf of all public body
members present. While it may have been clearer still for the individual chairs to each make
their own statements, our review leads us to conclude that the bodies complied with the Open
Meeting Law with respect to this allegation.5

IV. The Bodies Are Not Required to Disclose Their Executive Session Meeting
Minutes at This Time.

Under the Open Meeting Law, public bodies may withhold executive session minutes as
long as disclosure would defeat the lawful purpose for secrecy. G.L. c. 30A, § 22(f). The
complaints allege that the bodies have waived the right to withhold the minutes of the September
5, 12, and 19, 2017 executive session minutes and therefore must disclose them. In support of
this argument, the complainant points to the public statement made by the Board chair during the
September 26, 2017 meeting concerning Pine Manor College, along with the fact that the
Subcommittee reviewed the executive session minutes in open session.

We do not agree that the Board's disclosure during its September 27, 2017 open session
meeting that the town was considering acquiring land from Pine Manor College compromised
the purpose for the executive session. While the Board chair did disclose that the three bodies
had discussed the potential acquisition of property, our review of the still-withheld executive
session minutes showed that the bodies discussed the value of property in ways that have not
been yet publicly revealed at this time. We conclude that, while the identity of a property of
interest has been disclosed, the release of the full minutes at this time could still injure the town's
negotiating position. Accordingly, the Board chair's public statement during the September 27,
2017 meeting did not defeat the lawful purpose of secrecy.

Similarly, the Subcommittee did not waive the right to withhold the executive session
minutes merely because the Subcommittee discussed the minutes in an open session. As the
complainant correctly points out, the Open Meeting Law states that all documents and exhibits
used by a public body during an open session shall be public records in their entirety and not
exempt from disclosure pursuant to any of the exemptions under the Public Records Law. G.L.
c. 30A, § 22(e). Documents are "used" when they are physically present, verbally identified, and
when their contents are discussed. See OML 2017-43. Here, the executive session minutes were

5 To the extent that the complaints allege that Chair Wishinsky failed to state that discussing real property in open
session would compromise the town's negotiating position, see G.L. c. 30A, § 21(a)(6), we note that the bodies'
final, approved open session minutes indicate that such a statement was made. If draft versions of the minutes
omitted this information, as discussed further below, we do not find a violation based on the content of draft meeting
minutes. See QML 2018-42.

5
physically present, identified by name, and edited during the October 24, 2017 meeting. The
complaints therefore contend that they are now public in their entirety under § 22(e). However,
when read together with the subsequent statutory paragraph stating that executive session
minutes and materials may be withheld for the pendency of the executive session purposes, see
G.L. c. 30A, § 22(f), we are persuaded that all documents used during an open session are public
in their entirety except minutes and documents reviewed, edited, or approved during an open
session that are properly withheld under one or more executive session purposes. Because the
minutes discussed during the October 24, 2017 meeting remain protected from disclosure by
their respective executive session purposes, the Subcommittee is not required to release them
now.

V. The Committee and Subcommittee Minutes Are Sufficiently Accurate.

The Open Meeting Law requires public bodies to "create and maintain accurate minutes
of all meetings, including executive sessions, setting forth the date, time and place, the members
present or absent, a summary of the discussions on each subject, a list of documents and other
exhibits used at the meeting, the decisions made and the actions taken at each meetings,
including a record of all votes." G.L. c. 30A, § 22(a). Our office will generally review minutes
only for substantial compliance with the accuracy requirement. See OML 2012-106; OML
2011-55. By substantial compliance, we mean that the minutes should contain enough detail and
accuracy so that a member of the public who did not attend the meeting could read the minutes
and have a clear understanding of what occurred. IcL

Here, the complaints allege that the Committee and Subcommittee minutes did not
include sufficient detail. Specifically, the complaints allege that the minutes do not record Chair
Wishinsky's statement prior to entering into executive session, nor a vote by the respective
members prior to executive session. The complainant's legal counsel provided us with what
appear to be draft minutes that, indeed, do lack these required details. We are informed by the
bodies' legal counsel that the Subcommittee approved the relevant open session minutes on
October 24, 2017, and the Committee minutes were approved on October 26, 2017; both of these
occurred after the present complaints were filed. We have reviewed the final, approved minutes,
and they include the details that the complaints allege to be missing. It is possible that the
complaints refer to draft minutes that did not contain the required details in their original form.
Under the Open Meeting Law, a public body is responsible for the sufficiency of final, approved
minutes and it may revise draft minutes at any point to correct inaccuracies or add detail. See
OML 2018-20. Accordingly, we do not find violations based on deficiencies in draft minutes.
See OML 2014-7. Because the final minutes as approved meet the requirements of the Open
Meeting Law, we find no violation with respect to this allegation.

CONCLUSION

For the reasons stated above, we find that the Board, the Committee, and the
Subcommittee complied with the law with respect to most of the allegations but erred in failing
to provide the same notice to the public as was provided to Pine Manor College. We order the
bodies' immediate and future compliance with the Open Meeting Law.

We now consider the complaint addressed by this determination to be resolved. This

determination does not address any other complaints that may be pending with our office or the

6
with any of the public bodies addressed in this letter. Please feel free to contact the Division at
(617) 963 - 2540 if you have any questions.

O* 1

Kevin W. Manganaro
Assistant Attorney General
Division of Open Government

cc: Susan Murphy, Esq., Dain, Torpy, LeRay, Wiest & Garner, P.C.
Brookline Select Board
Brookline School Committee
Brookline 9th School Ad Hoc Subcommittee of the Advisory Committee

This determination was issued pursuant to G.L. c. 30A, § 23(c). A public body or any
member of a body aggrieved by a final order of the Attorney General may obtain judicial
review through an action filed in Superior Court pursuant to G.L. c. 30A, § 23(d). The
complaint must be filed in Superior Court within twenty-one days of receipt of a final
order.