THE COMMONWEALTH OF MASSACHUSETTS OFFICE OF THE ATTORNEY GENERAL

ONE ASHBURTON PLACE BOSTON, MASSACHUSETTS 02108
MARTHA COAKLEY ATTORNEY GENERAL (617) 727-2200 (617) 727-4765 TTY www.mass.gov/ago

August 4, 2011

OML 2011-34

Deirdre Heatwole, Esq. General Counsel University of Massachusetts 333 South Street 4th Floor Shrewsbury, MA 01545

RE:

Open Meeting Law Investigation

Dear Ms. Heatwole: The Attorney General's Office initiated an investigation of the University of Massachusetts Board of Trustees (the "Board") based on a reasonable cause to believe that the Board had violated the Open Meeting Law, G. L. c. 30A, §§ 18-25, in connection with the appointment of the University's new president. We notified you of this investigation by letter, dated March 14, 2011. We find that the Board violated the Open Meeting Law throughout the presidential search process. The violations were wide-ranging and serious. They demonstrate a pressing need for additional education and training with respect to the duties and obligations imposed by the law. Indeed, the need for training is acute given that the Board has announced that it will begin the process of appointing a new University of Massachusetts Amherst Chancellor in September. We believe that this new process provides a timely and unique opportunity to educate the Board on the core principles of the Open Meeting Law. Therefore, among other requirements and as discussed more fully below, we order the Board to undergo Open Meeting Law training before it begins the process of appointing a new chancellor. The individual conducting the training must be satisfactory to the Division of Open Government ("Division"), and the Board must certify that every Board member has attended the training. In addition, the Board must•submit a copy to the Division of all required meeting notices, as well as all meeting minutes created during the chancellor appointment process. We understand that, generally, the Board acted on advice of counsel. See G.L. c. 30A,

§ 23(g) ("[i]t shall be a defense to the imposition of a penalty that the public body, after full disclosure, acted in good faith compliance with the advice of the public counsel's legal counsel)." However, we believe that this advice was a contributing factor to the violations. Our investigation and review of the presidential appointment process provides a unique opportunity to achieve compliance with the law in the University's impending chancellor appointment process. Moreover, we are hopeful that the ordered training and scrutiny will have a lasting influence on the way that the Board and its subcommittees conduct business.' We believe, given the totality of the circumstances, this remedy is appropriate. In making our determination, we reviewed the notice and the open and executive session minutes of the Board's January 13, 2011 meeting. We also reviewed the notices and minutes of open meetings held by the Board's President's Search Committee (the "Search Committee") on May 3, 2010, June 14, 2010, September 17, 2010, and January 13, 2011 open meetings. We reviewed the executive session minutes of the Search Committee's October 7, 2010, October 8, 2010, October 21, 2010, October 22, 2010, November 3, 2010, December 16, 2010 and January 13, 2011 meetings. We also reviewed letters from you, dated April 6 and April 25, 2011, sent in response to our requests for documents. Finally, we interviewed Board and Search Committee Chairman James Karam on May 3, 2011 and Trustee and Search Committee Vice-Chairman Henry Thomas on May 31, 2011.

FACTS
University of Massachusetts President Jack Wilson announced on March 1, 2010 that he would retire at the end of the 2010/2011 academic year. On March 25, 2010, the Board established the President's Search Committee to review candidates and identify finalists for consideration by the Board. The Chairman of the Board at the time, Robert Manning, appointed then-Trustee James Karam as chair of the Search Committee. The Search Committee consisted of 21 members and included trustees, University faculty, students and former trustees.

May 3, 2010 Search Committee Meeting
The Search Committee met for the first time on May 3, 2010 at the University of Massachusetts Club ("UMass Club") in Boston. At the outset of the meeting, Committee members were provided with a memorandum from counsel detailing their obligations under the version of the Open Meeting Law in effect at the time. See G.L. c. 30A, § 11A 1/2 (repealed). According to the minutes, the Search Committee discussed retaining a search firm to help identify qualified candidates. Trustee Maria Furman agreed to lead a group of Committee members to review the search firm proposals. Members Philip Johnston, Robert Sheridan, Winston Langley and Marcellette Williams volunteered to be a part of that group. According to our interview with Search Committee Vice-Chair Henry Thomas, that sub-group interviewed search firms and ultimately chose Greenwood/Asher to assist in the search. There are no records of the sub-group's meetings, meeting notices were not posted and minutes were not kept.
We note that the presidential search process spanned a period when two versions of the Open Meeting Law were in effect. It is possible that the transition to the requirements of the revised Open Meeting Law, which became effective on July 1, 2010, added to the Board's apparent confusion. 2

The Search Committee also discussed involving the University community in the search process through events at each of the five University campuses. June 14, 2010 Search Committee Meeting The Search Committee next met in open session on June 14, 2010 at the UMass Club. The Search Committee met with Greenwood/Asher representatives, who proposed a timeline and suggested a process for the search. The meeting minutes contain no details about the discussion.
Search Committee September 2010 Forums

The Search Committee held a series of forums on the presidential search process at each of the different University campuses between September 13, 2010 and September 16, 2010. At least one member of the Search Committee participated in each forum, although it does not appear that a quorum of the Search Committee members participated in any forum.
September 17, 2010 Search Committee Meeting

The Search Committee met again on September 17, 2010 at the UMass Club. This was the first time either the Search Committee or the Board had met after the July 1, 2010 effective date of the revised Open Meeting Law. See G.L. c. 30A, §§ 18-25. Notice for the meeting was posted on September 2, 2010. The notice did not include a listing of topics for the Search Committee's consideration, as required by the new version of the law. According to the open meeting minutes, members updated the Search Committee on the September campus forums. Chair James Karam then called a roll-call vote to enter executive session, stating that "I have determined that our conducting initial screening of applicants in an open meeting will have a detrimental effect on obtaining qualified applicants for this position. In addition, by going into executive session we will be able to protect the privacy or other rights of applicants." The Search Committee then apparently entered executive session. However, the Search Committee did not provide our office with minutes of that executive session. Therefore, we have no record of what actually occurred there.
October 7, October 8, October 21, October 22, and November 3, 2010 Search Committee Meetings

The Search Committee met on five separate occasions in October and November at the Hilton Boston Financial District to interview candidates identified by Greenwood/Asher. Each time, the Search Committee convened in executive session. According to Trustee Thomas, the Committee interviewed approximately 15 candidates during these sessions. No notice was posted for any of them. According to Chair Karam and Trustee Thomas, the Search Committee "continued" the executive session convened on September 17, 2010 from one meeting to another until the executive session purpose had concluded. The executive session minutes confirm that practice, stating that each meeting was a "Continuation from 9/17/10." According to Chair Karam, the Search Committee did not want to post executive session meeting notices because it did not want anyone waiting in the lobby to publicly identify candidates whose names were supposed to be confidential throughout the preliminary search process.
3

In the first session on October 7, 2010, the Search Committee met from 5:30 p.m. to 8:00 p.m. without convening first in open session and without taking a roll-call vote to enter executive session. The minutes state only that "Chairman Karam welcomed the committee...and reiterated the need for confidentiality. The Search firm reviewed the interview process and questions were confirmed. One candidate was interviewed by the Committee." The Search Committee's meetings on October 8, October 21, October 22, and November 3, 2010 followed the same pattern. No notice was posted for the meetings. Each time, the executive session minutes state that the meeting was a "Continuation from 9/17/10." The minutes state, in substance, only that "Chairman Karam welcomed the committee...and reiterated the need for confidentiality. The Search firm reviewed the interview process and questions were confirmed. [Some number of] candidates were interviewed by the Committee." Although the sessions all lasted for several hours, the minutes contain no summary of the interviews, and no summary of Committee members' comments. The minutes of the November 3, 2010 meeting also state that Search Committee member John DiBiaggo "will call into the meeting."
December 16, 2010 Search Committee Meeting

The Search Committee next met on December 16, 2010, in executive session, at the UMass Club. No notice was posted for this meeting. Once again, the executive session minutes state only that the meeting was a "Continuation from 9/17/10." And the minutes are again brief and general, stating only that: "Chairman Karam welcomed the committee...and reiterated the need for confidentiality. Chairman Karam asked the search firm to update the committee on new prospects and some referring prospects. The Committee expressed concerns with the lapse in time and asked to see some new candidates and to see some candidates again so they could refresh recollections. The committee reviewed additional prospects with [the] search firm and asked for additional work on recruiting candidates." According to our interview with Trustee Henry Thomas, however, the Search Committee also used the executive session to narrow the list of fourteen presidential candidates to five potential finalists. There is no discussion of that process in the executive session minutes. January 13, 2011 Search Committee Meetings The Search Committee met for the final time on January 13, 2011, in executive session, from 8:00 a.m. to 12:55 p.m. at the Hilton Boston Financial District. No notice was posted for this meeting. Again, the executive session minutes state that the meeting was a "Continuation of Executive Session from 9/17/10." By the time of this last meeting, two of the five candidates remaining under consideration by the Search Committee had withdrawn. The Search Committee met with the remaining three candidates separately, interviewing each one for approximately forty minutes. The Search Committee discussed whether to forward these three candidates to the full Board as finalists, or to continue the search. Although the minutes do not reflect a vote, they state that the Search Committee decided to announce the three candidates as finalists. 2 The
2

Our concern here is not with the accuracy of the minutes. Rather, the concern is that the Search Committee appears to have made a final decision in executive session without taking a vote, acting on some sense of consensus. 4

Search Committee adjourned the executive session at 12:55 p.m. According to the minutes, and confirmed by our interviews with Trustees Karam and Thomas, three members of the Search Committee participated in the meeting by telephone. The Search Committee then convened in open session at 1:25 p.m. at the UMass Club. The notice for this meeting was timely posted on January 5, 2011. However, the notice did not include a list of topics to be discussed at the meeting. According to the meeting minutes, Chair Karam reported that the Search Committee had chosen finalists for the position of president of UMass. The Search Committee introduced the fmalists as Dr. Charles Bantz, Dr. Robert Caret and Dr. Philip Clay. The Search Committee then voted to recommend the three fmalists to the full Board of Trustees and to conclude their mission. Chair Karam adjourned the meeting at 2:03 p.m. and announced that the work of the search committee was completed. In interviews with this office, both Chair Karam and Vice-Chair Thomas explained that they did not know whether the Search Committee would decide to forward the three candidates to the Board as finalists prior to the Committee's fmal executive session on January 13, 2011. It was possible that the Search Committee would decide to continue interviewing candidates, or even decide to start the process from scratch. They did know, however, that the Board would meet later that same day and that the Search Committee would be making a report to the Board on the search process. January 13, 2011 Board of Trustees Meeting A. The Boston Globe Reports that the Board Will Enter Executive Session to Interview Finalists On January 13, 2011, The Boston Globe reported that the Board would "convene at the UMass president's office in downtown Boston in the afternoon to interview the candidates in executive session, then discuss the finalist field publicly." Tracy Jan, Front-Runners Emerge for UMass President, THE BOSTON GLOBE, January 13, 2011. The article went on to note that "[Ole trustees could appoint a president as early as today." Id. Chair Karam was quoted in that article stating that, "We're obviously optimistic that the plans will go ahead as originally planned...I am hoping that as a result of 10 months' worth of a very detailed, open, and comprehensive process that the board will find one of the three people we are forwarding to the board as capable of leading UMass, and choose the one who best fits the institution's needs going forward." Id. Assistant Attorney General Britte McBride, then the Director of the Attorney General's Division of Open Government, called you that afternoon, sometime between 12:30 p.m. and 1:00 p.m. During this brief call, Assistant Attorney General McBride conveyed her concern that the Board would enter executive session to interview finalists in violation of the Open Meeting Law, as reported by the Globe. You assured her that the Board would only enter executive session for proper purposes. Assistant Attorney General McBride also conveyed her belief that the Board's meeting notice for the January 13, 2011 meeting was insufficient because it lacked a listing of the specific topics that the Globe article suggested the Board anticipated discussing. You stated that you had not seen the meeting notice.
See G.L. c. 30A, § 22(b) ("Any vote taken in executive session shall be recorded by roll call and entered into the

minutes."). 5

B. Board of Trustees Open Session from 2:38 p.m. to 3:17 p.m. After the Search Committee adjourned for the final time, the full Board of Trustees convened a meeting at the UMass Club at 2:38 p.m. The notice for this meeting was posted on January 5, 2011, and included two topics: I. Call to Order; II. Report of the President's Search Committee. The Board met in open session, with James Karam as acting Board Chairman. Trustee Henry Thomas recapped the presidential search process and then publicly introduced the three finalists, with three different trustees reading aloud the candidates' biographies. According to the minutes, Chair Karam then announced the Board would enter executive session "to discuss the reputation and character of individual candidates and to conduct a strategy session in preparation for negotiations with non-union personnel, and to comply with general or special laws." The Board voted by roll-call, and entered executive session at 3:17 p.m. C. Board of Trustees Executive Session from 3:17 p.m. to 6:20 p.m. At the beginning of the executive session, Chair Karam asked you as General Counsel to advise the Board on the scope of topics permitted in Executive Session. It was noted in the executive session minutes that all three candidates indicated that they would not agree to be interviewed in open session. 3 According to the minutes, you advised the Board that they could not interview candidates in executive session and that they could not discuss the professional competence of the candidates. You advised the Board that they could discuss the finalists' reputation and character in executive session, but the finalists' qualifications had to be reserved for open session. Chair Karam told the Board that he would hate to see the Board divided on the vote in public session. You then told the Board that the penalty for violating the Open Meeting Law could be fines or nullification of the search process. Following the discussion of the requirements of the Open Meeting Law, Jan Greenwood from Greenwood/Asher provided the Board with information from reference and background checks on the finalists. Ms. Greenwood then reported her firm's fmdings on the reputation and background information they had gathered on each candidate. Ms. Greenwood also summarized how each candidate described his personal view of his greatest achievement and what he considered his greatest challenge. According to the minutes, the Board members then discussed "personal and confidential issues about the candidates." The Board members discussed positive and negative qualities of the candidates, as well as the political experience of the candidates. Following this discussion among Board members, Chair Karam introduced a question that would be read to each candidate who would be brought in front of the Board one at a time. The question was as follows: As you know, we are in the final stage of selecting a new leader for our University, and given that you are one of the finalist candidates, we would like to learn more about you as a person. Clearly, personal characteristics help to define a leader and come into focus when one assumes a position of leadership. Could
We note that the candidates should have expected to be interviewed in public for this important public position. See Gerstein v. Superintendent Search Screening Comm., 405 Mass. 465, 474 (1989), quoting Attorney General v. School Comm. of Northampton, 375 Mass. 127, 130 (1978). 6
3

you tell us about character traits and personal characteristics that you think would be relevant as we prepare to make our important decision? We're not asking you to describe your professional accomplishments, which are clearly excellent, but would like to learn about what character and values you would bring to UMass. Each finalist was then brought into the executive session, one at a time, and asked Chair Karam's question. Each candidate provided an answer, mostly speaking about their leadership styles and values. According to the minutes, at least one candidate was asked a follow-up question. After the Board met with each candidate, Chair Karam suggested that the Trustees share their comments and their impression of the candidates' character and reputations. A number of members expressed their view that Dr. Caret had the personality necessary to move the University forward. Trustee Thomas expressed his view that Dr. Clay had the character needed and a reputation for an excellent school. There was no vote by the Board on any candidate. Both Chair Karam and Trustee Thomas acknowledged in interviews with our office that they could tell the consensus of the room was behind Dr. Caret. The Board concluded its discussion and ended the Executive Session at 6:20 p.m. According to the minutes, four Board members had participated in the executive session remotely by telephone. D. Board of Trustees Open Session from 6:24 p.m. to 6:49 p.m. The Board reconvened in open session at 6:24 p.m. The minutes state that Chair Karam "asked for the Board's thoughts and comments about the candidates." Immediately upon that request, Trustee Philip Johnston motioned to appoint Robert Caret as President of UMass. The motion was seconded and two other Trustees offered remarks supporting Dr. Caret. The minutes state that Chair Karam addressed the Board stating that the "consensus of the Board is to select Robert L. Caret as the University's next President." It was then voted unanimously to "appoint Robert L. Caret as President of the University of Massachusetts." The Board next voted to "authorize the Chairman to enter into negotiations with Robert L. Caret to agree to terms and conditions of the Appointment to the Position of President of the University of Massachusetts notwithstanding the provision of any Trustee Policy." The Board then invited Dr. Caret to make some remarks. The Board adjourned at 6:49 p.m. RELEVANT SECTIONS OF THE OPEN MEETING LAW The Open Meeting Law was enacted "to eliminate much of the secrecy surrounding deliberations and decisions on which public policy is based." Ghiglione v. School Committee of Southbridge, 376 Mass. 70, 72 (1978). The law requires that meetings of a public body be properly noticed and open to members of the public, unless an executive session is convened. See G.L. c. 30A, §§ 20(a)—(b), 21. A "public body" is any "multiple-member board, commission, committee or subcommittee within the executive or legislative branch or within any county, district, city, region or town, however created, elected, appointed or otherwise constituted, established to serve a public purpose." G.L. c. 30A, § 18. A "subcommittee" includes "any multiple-member body created to advise or make recommendations to a public body." Id.
7

Notice of every meeting must be posted "at least 48 hours prior to such meeting, excluding Saturdays, Sundays and legal holidays," and every notice shall include "the date, time and place of such meeting and a listing of topics that the chair reasonably anticipates will be discussed at the meeting." G.L. c. 30A, § 20(b). For meetings of a state public body, "notice shall be filed with the attorney general by posting on a website in accordance with procedures established for this purpose and a duplicate copy of the notice shall be filed with the regulations division of the state secretary's office." G.L. c. 30A, § 20(c). A public body may enter executive session for one of ten enumerated purposes, provided that it has first convened in an open session, that a majority of members of the body have voted to go into executive session and the vote of each member is recorded by roll call and entered into the minutes. G.L. c. 30A, §§ 21(a)—(b). Before entering the executive session, the chair must state the purpose for the executive session, stating all subjects that may be revealed without compromising the purpose for which the executive session was called, and the chair must publicly announce whether the open session will reconvene at the conclusion of the executive session. Id. Among the ten enumerated purposes for executive session is Purpose 1, which allows a public body to enter executive session to "discuss the reputation, character, physical condition or mental health, rather than professional competence, of an individual." G.L. c. 30A, § 21(a)1. The individual to be discussed in such executive session must be notified in writing by the public body at least 48 hours prior to the proposed executive session, and be afforded the right to be present during deliberations that involve that individual and the right to speak on his own behalf. Id. Among the other ten enumerated purposes for executive session are Purpose 2, "No conduct strategy sessions in preparation for negotiations with nonunion personnel or to conduct collective bargaining sessions or contract negotiations with nonunion personnel"; Purpose 7, "No comply with, or act under the authority of, any general or special law or federal grant-in-aid requirements"; and Purpose 8, "No consider or interview applicants for employment or appointment by a preliminary screening committee if the chair declares that an open meeting will have a detrimental effect in obtaining qualified applicants; provided, however, that this clause shall not apply to any meeting, including meetings of a preliminary screening committee, to consider and interview applicants who have passed a prior preliminary screening." G.L. c 30A, §§ 21(a)2, 7, 8. A public body is also required 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 meeting, including the record of all votes." G.L. c. 30A, § 22(a).

8

DISCUSSION
Our investigation revealed that the Board's search for a new University president was flawed in several fundamental respects from an Open Meeting Law perspective. There were multiple violations. For example, members were routinely permitted to participate by telephone, a practice that was specifically prohibited at the time of the meetings. Meetings were not separately noticed, rather executive sessions were merely "continued" from one date to another. And when meeting notices were posted, they were not sufficiently specific. Minutes from both open and executive sessions were short on detail. Finally, and most importantly, the professional competence and qualifications of the three finalists was inappropriately discussed in executive session, something which is specifically prohibited by the Open Meeting Law. Indeed, there was virtually no public discussion, and certainly no debate, about the candidate who was ultimately selected, Dr. Caret. The pervasive problems, evident throughout the process, demonstrate a pressing need for training on the Open Meeting Law's core principles. I.

The Board Held an Unlawful Executive Session on January 13, 2011 to Interview Finalists for President of the University.

When finalists are interviewed for a significant public position, like president of the University, there is an expectation of "open and public consideration" of their qualifications for the job. See Gerstein v. Superintendent Search Screening Comm., 405 Mass. 465, 474 (1989), quoting Attorney General v. School Comm. of Northampton, 375 Mass. 127, 130 (1978); see also G.L. c. 30A, § 21(a)(8) (meetings "to consider and interview applicants who have passed a prior preliminary screening" are not proper for executive session). That did not happen here. Instead, the Board met in open session for just forty minutes, during which the Board members introduced the three finalists and read their biographies. The Board then entered executive session for over three hours to interview and discuss the "reputation and character" of the finalists. We understand that this was done on advice of counsel. Upon exiting executive session, the Board immediately entertained and adopted a motion to appoint Dr. Caret the next President of the University. Our investigation revealed that the Board's executive session discussion on January 13, 2011 was not actually limited to the "reputation and character" of the finalists. Rather, the interviews and discussion focused — and appropriately so, given the decision that was being made — on which candidate was the most qualified to be President. Therefore, the interviews and discussion should have taken place in open session. See G.L. c. 30A, § 21(a) (1) (discussion of "professional competence" not proper for executive session); G.L. c. 30A, § 21(a) (8) (finalist interviews not proper for executive session). A. The Board Discussed Topics Beyond the Narrow Scope of the Executive Session

Purpose the Board Cited.
According to the minutes of the Board's January 13, 2011 executive session, the Board voted to enter executive session "to discuss the reputation and character of individual candidates and to conduct a strategy session in preparation for negotiations with non-union personnel, and to comply with general or special laws." A public body may enter executive session under Purpose 1 to "discuss the reputation, character, physical condition or mental health, rather than
9

professional competence, of an individual." G.L. c. 30A, § 21(a)(1) (emphasis added). Purpose 1 is available to protect an individual's privacy. See Puglisi v. School Comm. of Whitman, 11 Mass. App. Ct. 142, 144 (Mass. App. Ct. 1981) (Purpose 1 available to allow "a public body to engage in candid discussion about the character and reputation of an individual who is the subject of potential action by that public body"). But it is not elastic. The Open Meeting Law clearly contemplates that, generally, interviews and professional competence discussions will take place in open session. G.L. c. 30A, § 21(a)(1) and § 21(a)(8). Indeed, the Board acknowledged that members could discuss the reputation and character of individuals in executive session, but not their professional competence or qualifications. The problem for the Board is that there is virtually no evidence that it had any specific concerns regarding the "reputation and character" of the finalists. 4 Rather, the evidence demonstrates that the Board attempted to force very real and pertinent questions about professional competence into the rubric of "reputation and character" so that the interviews and debate could be conducted behind closed doors. The executive session minutes state that "fflor each candidate, Ms. Greenwood gave the Board general information about each candidate's current employer, including number of students, employees, degrees offered, budget and athletic programs, and summarized the employment history of each candidate, information which had been provided in open session." This, of course, summarized the candidates' experience, and provided some evidence of the candidates' ability to run a school like the University. But it had nothing to do with reputation and character, as those terms are typically understood. 5 Ms. Greenwood then "summarized how each candidate described his personal view of his greatest achievement and what he considered his greatest challenge at his institution." Again, what someone has accomplished in his or her professional career speaks to that person's qualifications, not their reputation or character. Following Ms. Greenwood's presentation, the "Board members then discussed personal and confidential issues about the candidates." Much of this discussion touched on the finalists' political acumen and connections. Again, these are qualities that may be necessary to perform the job of University president, but they have nothing to do with reputation or character. The Board then proceeded to bring the finalists into the meeting, one at a time, to ask each the same question. That question included a caveat: "We're not asking you to describe your professional accomplishments." But the question was nonetheless designed to elicit statements about the finalists' personalities so that the Board could evaluate their fitness for the position of
4

There was a discussion in executive session about why one finalist was leaving his current employment. While not entirely clear from the minutes, this may have involved reputation and character, depending on the circumstances, and may have been appropriate for executive session.

"Reputation and character" are not technical terms. Rather, there is a common understanding of what they mean. Indeed, Trustee Thomas identified some elements of that common understanding in his interview. To him, reputation and character meant, among other things: "your reputation among colleagues or supervisor," "how others might see you," and behavior or conduct that "might have human resources implications," or that involves "law enforcement." We endorse that common sense understanding of the terms.
5

10

president. "[W]e would like to learn more about you as a person," the Board stated before asking the fmalists about their "character traits and personal characteristics" that would be "relevant" to the Board's "important decision?" The responses were telling. According to the minutes, the fmalists spoke mostly about their leadership styles and values. That is, they responded with reasons why they would make a good President. This was not a discussion of character as contemplated by Purpose 1, but an evaluation of the fmalists—an interview that was required to occur in open session. G.L. c. 30A, § 21(a)(8). Following the interviews, Chairman Karam asked Board members for comments, specifically suggesting that Board members share their "impressions of the candidates' character and reputations." At this point the Board members began sharing their opinions about the fmalists, and a consensus began to build around Dr. Caret, though Trustee Thomas advocated for Dr. Clay. The minutes reflect that Board members used words such as "personality," "reputation," and "character" when advocating for the certain fmalists. No vote is reflected in the minutes. However, both Chair Karam and Trustee Thomas told this office that there was a "consensus" in the room behind Dr. Caret. This final discussion was also inappropriate for executive session. It was the ultimate discussion among the Board members that led to the appointment of Dr. Caret. This was perhaps the most important period for the public to witness, as Board members shared their opinions of the finalists and built a consensus around one candidate. The process that occurred here is exactly what the Open Meeting Law was enacted to prevent. The decision to appoint Dr. Caret—and how the Board reached that decision—occurred entirely behind closed doors. The Board had promoted "an open, transparent and inclusive" search in its press release on May 3, 2010, announcing the first meeting of the Search Committee. The Board fell far short of this goal, and fell short of meeting the requirements of the Open Meeting Law. B. The Board Cited Executive Session Purposes that Did Not Apply to the Discussion that Actually Took Place. In addition to "reputation and character," the Board also stated that it was entering executive session "to conduct a strategy session in preparation for negotiations with non-union personnel, and to comply with general or special laws." Neither of these stated purposes was appropriate for the discussion that occurred in executive session on January 13, 2011. Executive Session Purpose 2 allows a public body to "No conduct strategy sessions in preparation for negotiations with nonunion personnel or to conduct collective bargaining sessions or contract negotiations with nonunion personnel." G.L. c 30A, § 21(a)2. The Board met in executive session to consider fmalists for the position of president of UMass. There were no contract negotiations during this executive session, nor should the Board have anticipated any as it was meeting to consider finalists, not negotiate contracts. Chair Karam explained in an interview with our office that some Board members had questions for the candidates about salary ranges and other requirements. Those questions were asked in the context of choosing a president, not negotiating their contract. Those questions were not appropriate for executive session, and should have been asked in open session. The final purpose the Board cited for entering executive session was "to comply with
11

general or special laws." Executive session Purpose 7 allows a public body "No comply with, or act under the authority of, any general or special law or federal grant-in-aid requirements." G.L. c 30A, § 21(a)7. If a public body enters executive session under Purpose 7, it must cite the specific general or special law, or federal grant-in-aid requirement, that requires confidentiality or requires the public body to meet behind closed doors. See Dist. Attorney for N. Dist. v. Sch. Comm. of Wayland, 455 Mass. 561, 569 (2009) (explaining that the proper use of Purpose 7 to enter executive session requires the enumeration of the enabling law). Here, the Board offered no such citation to a general or special law. In interviews with this office, Chair Karam and Trustee Thomas could not offer a specific law or grant-in-aid requirement that required the Board to enter executive session. Because the Board did not provide any law or grant-in-aid requirement to justify their executive session under Purpose 7, it was not appropriate for the Board to employ Purpose 7.

The Search Committee and the Board Improperly Allowed Members to Participate by Telephone.
The improper use of executive session to interview presidential fmalists was not the only Open Meeting Law violation. Currently, public body members may not participate in meetings by telephone. Indeed, the Attorney General's Open Meeting Law Guide, issued to all public body members, is explicit: "The Attorney General is authorized under the Open Meeting Law to permit remote participation by members of a public body not present at the meeting location. This issue is under consideration by the AGO. While the issue is under consideration, remote participation by members of public bodies is not permitted under the Open Meeting Law" (emphasis added). Nonetheless, the Search Committee's minutes state that members participated by telephone at meetings held on November 3, 2010 and January 13, 2011. The Board's minutes state that four members participated by telephone on January 13, 2011, the meeting at which the Board selected the new president. While it is not clear from either the minutes or our interviews to what extent the members participated, each instance of remote participation constitutes a violation of the Open Meeting Law. 6 III.

The Search Committee Failed to Provide Notice and Failed to Follow the Required Procedures for Entering Executive Session in Multiple Meetings.

The Open Meeting Law requires that each meeting of a public body be separately and timely noticed. G.L. c. 30A, § 20(b) (notice required for notice for "every meeting at least 48 hours prior") (emphasis added). This is not a mere technical requirement. Notice is essential to public participation. See McCrea v. Flaherty, 71 Mass. App. Ct. 637, 650 (2008) ("the notice requirement contained in the statute is an essential attribute of the law; it is manifestly pointless to conduct a meeting to which the law requires public access if no member of the public is aware that the meeting is taking place"). Our investigation revealed, however, that the Search Committee had a practice of "continuing" its executive sessions from one date to another, without posting a separate notice for each meeting. For example, the Search Committee entered
6

On June 29, 2011, the Attorney General issued a proposed regulation that, if finally adopted, will allow remote participation in certain specified circumstances. However, that regulation is not yet fmal, and certainly was not in effect at the time of the meetings at issue here. Moreover, the regulatory process demonstrates that the Board was aware, at least by October 2010, that remote participation was prohibited. In response to a request for public comment, the Board provided four pages of argument in favor of the Attorney General adopting a policy authorizing remote participation. 12

executive session on September 17, 2010 for the purpose of screening candidates, and then met on five separate occasions in October and November to interview candidates without posting the meetings. This practice violates the explicit notice requirement of the Open Meeting Law. G.L. c. 30A, § 20(b); McCrea, 71 Mass. App. Ct. at 650-651. Furthermore, a public body may only enter executive session after it has "first convened in an open session." Id. § 21(b). Again, this requirement is not merely technical. The public is entitled to know that the relevant public body is entering executive session, and why, each and every time the body meets. Id. at (b)(3) ("before the executive session, the chair shall state the purpose for the executive session, stating all subjects that may be revealed without compromising the purpose for which the executive session was called"). Here, the Search Committee's practice of merely "continuing" the executive session from one date to another denied the public that knowledge. According to Chair Karam, the Search Committee engaged in this practice to protect the identities of the preliminary candidates. We acknowledge that a preliminary screening committee may meet in executive session to interview candidates. We also acknowledge that individuals often wish to keep their candidacy confidential at the preliminary stage of the process. See, e.g., Gerstein, 405 Mass. at 474 ("there are substantial reasons for protecting the identity of individuals who were candidates only early in the process"). But those legitimate considerations cannot trump the law's explicit notice requirements. 7 IV. The Search Committee Failed to Maintain Sufficient Minutes of its Meetings.

The Search Committee was required 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 meeting, including the record of all votes." G.L. c. 30A, § 22(a). Our review of the Search Committee's minutes, however, demonstrates that they were often inadequate. To begin with, the Search Committee failed to include in any of the minutes "a list of documents and other exhibits used at the meeting." G.L. c. 30A, § 22(a). The list is required because it permits the public to know exactly what the public body considered at its meeting, and what it relied on in taking action. Its consistent omission is significant. But the list was not the only thing missing from the minutes. There was also a consistent failure to provide a "sufficient summary of the discussions on each subject." Id. at § 22(a). For example, at the Search Committee's June 14, 2010 meeting, the members met for 2 V2 hours and apparently settled on a process and timeline for the candidate search. However, the minutes contain only eight sentences. And those sentences provide no detail about either the timeline or the process the committee planned to use to select the next University president. The minutes of the September 17, 2010 are similarly deficient. As are the minutes for the October and November 2010 executive sessions during which the Search Committee interviewed candidates.
We are sure that there are practical ways to address the Board's confidentiality concerns within the letter and spirit of the Open Meeting Law. We are happy to work with the Board in the course of the chancellor appointment process to explore potential options. 13
7

Those minutes essentially contain only a statement about the need for confidentiality and the fact that a certain number of interviews were conducted. The minutes provide no summary of the interviews, no summary of the Search Committee's discussion to narrow the list of candidates to five finalists, and no record of any votes. 8 This is simply not enough. Meeting minutes, whether for open or executive sessions, must give the reader an adequate understanding of what actually happened at the meeting. They do not have to be transcripts. But they do have to reflect the discussion that occurred, the action taken by the body, and the positions taken by the individual members. G.L. c. 30A, § 22(a). Confidentiality concerns, while legitimate, do not justify a complete lack of detail in meeting minutes. 9 V. The Search Committee and the Board Failed to Provide a Sufficient Listing of Topics in its Meeting Notices During the Search Process.

As stated above, the Search Committee did not properly notice several of its meetings. But where the Search Committee and the Board did provide notice, the notices were often deficient. Specifically, they did not include "a listing of topics that the chair reasonably anticipates will be discussed at the meeting." G.L. c. 30A, § 20(b). m Indeed, the Search Committee's meeting notice for its September 17, 2010 meeting failed to provide a listing of any topics. It merely stated the date, time, and location of the meeting. Similarly, the Board's January 13, 2011 meeting notice listed only two topics: "Call to Order" and "Report of the President's Search Committee." In his interview with our office, Chair Karam explained that he did not know what the result of the January 13, 2011 Search Committee would be, and therefore did not feel as though he could anticipate what would occur at the January 13, 2010 Board meeting. The Open Meeting Law does not require the chair of a public body to guess what will occur during a meeting. But the chair does need to list those topics that he reasonably anticipates will be discussed at the meeting. G.L. c. 30A, § 20(b). Here, Chair Karam should have reasonably anticipated that the Board would be interviewing fmalists, and possibly appointing a president. In fact, The Boston Globe quoted Chair Karam, in an article that appeared the morning of the meeting, as saying, "We're obviously optimistic that the plans will go ahead as originally planned...I am hoping that as a result of 10 months' worth of a very detailed, open, and comprehensive process that the board will fmd one of the three people we are forwarding to the board as capable of leading UMass, and choose the one who best fits the institution's needs going forward." Tracy Jan, Front-Runners Emerge for UMass President, THE BOSTON GLOBE, January 13, 2011.
Again, the concern is not with accuracy of the minutes, but with the absence of a vote on a final decision made in executive session. See n.2, supra.
8

Public bodies have the option of redacting executive session minutes pursuant to the appropriate sections of the Public Records Law, G.L. c. 66. § 10, and G.L. c. 4, § 7, cl. 26, to address confidentiality concerns.
9

10 We note that the Open Meeting Law was revised by the Ethics Reform Act of 2009. Those revisions took effect on July 1, 2010. The requirement that a meeting notice include "a listing of topics that the chair reasonably anticipates will be discussed at the meeting" was not a provision of G. L. c. 30A, § 11A 1/2, which was the prior version of the Open Meeting Law. Therefore, we are only reviewing the notices for meetings after July 1, 2010 for compliance with the requirements of G.L. c. 30A, § 20(b). 14

This was a significant action by the Board, and clearly anticipated by the chair. Even if the recommendation of the Search Committee's report was unclear at the time the meeting notice was posted, it would have been appropriate for the notice to state: "Report of the President's Search Committee: There may be a recommendation to the Board of finalists for the position of President. If the Search Committee recommends finalists, the Board may interview those fmalists. The Board may vote to appoint a President from among those finalists." This would have provided the public with appropriate notice that the Board was likely to appoint a new president at its January 13, 2011 meeting. VI.

The Search Committee Created a Subcommittee that Failed to Follow the Requirements of the Open Meeting Law.

Finally, the minutes of the Search Committee's May 3, 2010 meeting state that Trustee Maria Furman agreed to lead a group to review proposals from search firms, in an effort to retain a firm to assist the Search Committee in the search process. Search Committee members Philip Johnston, Robert Sheridan, Winston Langley and Marcellette Williams also volunteered to "work with Maria on reviewing the proposals." According to our interview with Trustee Henry Thomas, this group of Search Committee members interviewed the search firms and ultimately chose a firm. Whether or not this group was loosely organized, or conducted its work informally with the assistance of staff, it was nonetheless a subcommittee subject to the Open Meeting Law. The Open Meeting Law applies to "public bodies." A "public body" is any "multiple-member board, commission, committee or subcommittee within the executive or legislative branch or within any county, district, city, region or town, however created, elected, appointed or otherwise constituted, established to serve a public purpose." G.L. c. 30A, § 18 (emphasis added)." A "subcommittee" includes "any multiple-member body created to advise or make recommendations to a public body." Id. While the minutes do not reflect a formal vote by the Search Committee to establish this subcommittee, the members acted with the authority granted to them by consensus of the Search Committee at the May 3, 2010 meeting. The subcommittee did not post any notices for its meeting. The subcommittee did not hold open meetings or follow the requirements of the Open Meeting Law in any way. The subcommittee ultimately chose the search firm that the Search Committee engaged, which presumably constituted a significant University expense.

CONCLUSION
Our investigation uncovered numerous violations of the Open Meeting Law. We are very concerned about the diligence with which the Board adheres to the Open Meeting Law. We appreciate that the Board members are volunteers who donate many hours to the University of Massachusetts and are dedicated to the excellence of this public institution. But they must abide
" At the time the subcommittee was formed, the prior Open Meeting Law, G.L. c. 30A, § 11A 1/2 applied. Instead of "public bodies", the law applied to "governmental bodies." However, the analysis remains the same. Under both the prior and current version of the Open Meeting Law, a subcommittee is subject to the Open Meeting Law ("Governmental body" is "a state board, committee, special committee, subcommittee or commission, however created or constituted within the executive or legislative branch of the commonwealth or the governing board or body of any authority established by the general court to serve a public purpose in the commonwealth or any part thereof."). G.L. c. 30A, § 11A 1/2 (repealed and emphasis added). 15

by the Open Meeting Law, and they consistently failed to do so.

As discussed above, the Board has announced that it will begin the process of appointing a new University of Massachusetts Amherst Chancellor in September. Given the pervasive Open Meeting Law violations that occurred during the presidential appointment process, we believe that this new process provides a unique and timely opportunity to educate the Board on the core principles of the Open Meeting Law. Therefore, we order the Board 12 to take the following remedial actions: 1. Immediate and future compliance with the Open Meeting Law, G.L. c. 30A, §§ 18-25. Similar future violations of the Open Meeting Law will be considered intentional violations. 2. Certify to the Division that each member of the Board has received a copy of this determination. 3. Undergo training on the Open Meeting Law prior to beginning the process of appointing a new University of Massachusetts Amherst Chancellor, and certify to the Division office that every member of the Board has attended that training. The trainings are to be conducted by an attorney or organization familiar with the requirements of the Law and approved by the Division. If the Board appoints a new search committee for the Chancellor position, the members of that committee must also undergo Open Meeting Law training, approved by the Division, before they begin deliberations. 4. Submit a copy to the Division of any and all meeting notices required by the Open Meeting Law and posted by the full Board or its subcommittees during the appointment process of the new University of Massachusetts Amherst Chancellor. These may be submitted to the Division via email to openmeetingAstate.ma.us . 5. Submit a copy to the Division of all meeting minutes, for both open and executive sessions, created during the chancellor appointment process. These may be submitted to the Division via email to openmeeting@state.ma.us . 6. Review all unreleased executive session minutes of the Board and its committees created during the presidential search process to determine whether the purpose for having entered executive session in each circumstance still exists, and release executive session minutes where doing so would no longer frustrate the purpose for having entered into the executive session. This review should occur within 60 days of receipt of this determination. 7. Create, approve, and release full and accurate meeting minutes for the Search Committee's September 17, October 7, October 8, October 21, October 22, and November 3, 2010 meetings. We appreciate the cooperation of the Board during this investigation. We now consider
12 We do not order any remedial actions for the Search Committee because it has disbanded and no longer serves any official purpose. 16

this matter closed. Please contact me if you have any questions regarding this letter.

Jonathan Sclarsic Assistant Attorney General Division of Open Government Ph: 617-963-2045

Sign up to vote on this title
UsefulNot useful