THE COMMONWEALTH OF MASSACHUSETTS

OFFICE OF THE ATTORNEY GENERAL

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

MAURA HEALEY
ATTORNEY GENERAL

June 1, 2016
OML 2016-70
Megan Sullivan, Esq.
Sullivan, Hayes & Quinn, LLC
One Monarch Place, Suite 1200
Springfield, MA 01144
RE:

Open Meeting Law Complamt

Dear Attorney Sullivan:

This office received a complaint from Attorney Robert Leonard, on behalf of Wayne
Doerpholz, on February 1, 2016, alleging that the South Hadley Electric Light Department
Board of Commissioners (the Board) violated the Open Meeting Law, G.L. c. 30A, 18-25.
The complaint was originally filed with the Board on or about November 5, 2015, and Board
Chair Dan Whitford responded, on behalf of the Board, by letter dated January 14, 2015.1 In
his complaint, Mr. Doerpholz alleges that the Board held an improper emergency meeting on
October 26, 2015. Additionally, Mr. Doerpholz alleges that, based on the Board's actions
during the October 26, 2015 meeting, it appears that the Board had previously deliberated
outside of a posted meeting.
Following our review, we find that the Board violated the Open Meeting Law by
holding an improper emergency meeting and by failing to follow the requisite procedures for
convening in executive session, which include providing sufficient detail about an executive
session, both in the meeting notice and in the announcement prior to the executive session.
Absent evidence to the contrary, however, we are unable to find that the Board deliberated
outside of a meeting.
In reaching this determination, we reviewed the original complaint, the Board's
response to the complaint, and the complaint filed with our office requesting further review.
We also reviewed the notice of and open and executive session minutes from the Board's
October 26, 2015 meeting. Finally, after numerous unsuccessful attempts to schedule
1

The complaint was not discussed at a Board meeting. We remind the Board that the Open Meeting Law
requires that within 14 business days after receiving a complaint the public body shall review the complaint's
allegations; take remedial action, if appropriate; and send to the Attorney General a copy of the complaint and a
description of any remedial action taken, G.L. c. 30A, 23(b); 940 CMR 29.05(5).

Cs

interviews with the Board members, we are compelled to resolve this complaint based only on
the written documents submitted by the parties.
FACTS
We find the facts as follows, The Board is a three member public body, thus two
members constitute a quorum. In two prior decisions, OML 2015-16 and OML 2014-115, we
found that the Board violated the Open Meeting Lav/ by failing to provide sufficient detail
about the reasons the Board was entering executive session. In both decisions, we advised the
Board that "personnel issues" is not a sufficiently specific executive session purpose. None of
the current Board members served on the Board at the time of the prior violations.
On Friday, October 23, 2015, the Board received notice that a Board employee, Robert
Blasko, had filed a lawsuit against the Board and the complainant, Wayne Doerpholz, the
Manager of the Water Department. On Monday, October 26, 2015 at 2:47 P.M., the Board
posted notice of an emergency meeting to be held later that afternoon, at 4:00 P.M., to discuss
the lawsuit. The topics on the notice were listed as follows: "1. Call to Order Emergency
Meeting; 2. Executive Session; Legal Claims Against SHELD; 3. Adjourn." Earlier in the
day. Board Chair Anne Awad met with labor counsel to discuss the lawsuit and determined
that an emergency meeting was necessary in order to secure and preserve evidence relative to
the suit which, the Board contends, was in the direct control of the complainant. Chair Awad
notified Mr. Doerpholz of this meeting at approximately 3:00 P.M. Mr. Doerpholz attended
the meeting with his counsel.
According to the minutes, the Board convened this meeting at 4:00 P.M. and moved
"to go into Executive Session and to return to Open Session." A roll call vote was not taken.
During the executive session, the Board discussed the lawsuit. As a result of its discussion,
the Board voted to place Mr. Doerpholz and Andrew On-, the Department's Engineer, on paid
administrative leave until further notice. Mr. Orr did not attend the meeting. Chair Awad
handed Mr. Doerpholz a Notice of Paid Administrative Leave, dated the same day. Upon
reconvening in open session, the Board announced its decision to place these two employees
on administrative leave.
DISCUSSION
The Open Meeting Law was enacted "to eliminate much of the secrecy surrounding
deliberation and decisions on which public policy is based." Ghiglione v. School Board of
Southbridge, 376 Mass. 70, 72 (1978). The Open Meeting Law requires that, "except in an
emergency., .a public body shall post notice of every meeting at least 48 hours prior to such
meeting, excluding Saturdays, Sundays and legal holidays." G.L. c. 30A, 20(b). In case of
an emergency, the public body should post notice of the meeting as soon as reasonably
2 We remind the Board that the Open Meeting Law requires that, "[ujpon notification of an investigation, any
person, public body or any other... official or entity who is the subject of an investigation, shall make all
information necessary to conduct such investigation available to the attorney general." G.L. c, 30A, 24(a); see
also 940 CMR 29.06(2) ("Upon notice of the investigation, the subject of the investigation shall provide the
Attorney General with all information relevant to the investigation.")

possible. Id. An "emergency" is defined as "a sudden, generally unexpected occurrence or

set of circumstances demanding immediate action." G.L. c. 30A, 18. The burden of
justifying the need for an emergency meeting lies with the public body. See OML 2012-7;
OML 2010-6.3
A public body may enter executive session for any 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 that the vote of each member is recorded by roll
call and entered into the minutes. G.L. c. 30A, 21(b). Before entering the executive
session, the chair must state the purpose for the executive session, including 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. G.L. c. 30A, 21(a), 21(b)(3); see also District
Attorney for N. Dist. v. Sch. Comm. of Wavland, 455 Mass. 561, 567 ("[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 Board would conduct
business in private, and the only way the public would know if the reason for doing so was
proper or improper."). This level of detail about the executive session topic should also be
included in the meeting notice. See G.L. c. 30A, 20(b).
One executive session puipose 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, or to discuss the discipline or dismissal of, or complaints or
charges brought against, a public officer, employee, staff member or individual." G.L.
c. 30A, 21(a)(1) ("Purpose 1"). The individual to be discussed during such an executive
session must be notified in writing by the public body at least 48 hours prior to the proposed
executive session and has the right to be present during deliberations, to have counsel present,
and to speak on her own behalf. Id. Another purpose allows a public body to enter executive
session 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. 30A, 21(a)(3) ("Purpose 3").
First, the Board did not provide a valid justification for its October 26, 2015
"emergency" meeting. The Board contends that a "two day delay in taking action could bring
validity of the records into question." However, although the suit was filed on Friday, the
Board waited until Monday to hold this emergency meeting, rather than holding it over the
weekend. This delay demonstrates that the matter did not demand immediate action and
therefore did not qualify as an "emergency," as defined in the law. Where a public body has
at least 48 hours' notice of circumstances that are likely to require deliberation, it is not an
emergency. See OML 2011-45. Emergency meetings are reserved for circumstances that are
unanticipated and require an immediate response to, for example, protect public safety or
health. Id Accordingly, the meeting was improperly held because the Board did not post
notice of it at least 48 hours in advance. See G.L. c. 30A, 20(b).
3

Open Meeting Law determinations may be found at the Attorney General's website,
www, mass.gov/ago/openmeeting.
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Second, even if the Board had properly posted the meeting, it failed to follow the
requisite procedures for convening an executive session, which include providing a sufficient
description of the executive session topic. In its response to the complaint, the Board asserts
that it convened in executive session pursuant to Pmpose 3 to discuss a pending lawsuit filed
against the Board.4 The Board's notice failed to identify the specific litigation matter to be
discussed, however. See OML 2016-12. Moreover, in its announcement during the open
session, the Board did not provide any reason for its executive session. The Board did not
take a roll call vote to convene in executive session, nor did the chair declare that having this
discussion in open session would be detrimental to the Board's litigating position. These
failures are all violations of the Open Meeting Law.
Third, the Board's discussion about the discipline of Mr. Doerpholz and Mr. Orr was
improperly held in executive session under Pmpose 3. Although Purpose 1 may have been an
appropriate basis for this discussion, the Board did not invoke Pmpose 1 to justify its
executive session, nor did the Board provide these individuals with 48 hours' written notice,
as required under that purpose. The Board therefore violated the Open Meeting Law by
failing to comply with the requirements for convening an executive session under Pmpose 1.
Despite these deficiencies, Mr. Doerpholz was able to attend the discussion with his counsel.
Accordingly, we decline to order the Board to reinstate Mr. Doerpholz to his position.
While we find that the Board's violations are similar to those in our prior
determinations, we decline to find an intentional violation for the Board's failure to include
sufficient detail about the executive session solely because the Board's membership has
changed since the last two determinations. See OML 2013-163 (in which our office declined
to fmd an intentional violation of the law because the makeup of the public body had changed
since the prior determination was issued). Because we find the Board's October 26, 2015
emergency meeting was improperly held, however, we order the Board to release to the public
the executive session minutes. The Board may not redact or withhold these minutes or any
portion thereof. See G.L c. 3OA, 22(f) ("The minutes of any executive session . . . may be
withheld from disclosure to the public in their entirety ... as long as publication may defeat the
lawful puiposes of the executive session, but no longer; provided, however, that the executive
session was held in compliance with section 21") (emphasis added)); OML 2014-42; OML
2014-17.
Finally, the complaint alleges that the Board engaged in deliberations outside a posted
meeting. We have no evidence that this occurred and, thus, cannot fmd a violation. However,
it does seem unlikely that the Board members did not discuss the matter with each other
before the meeting. The minutes reflect only a limited discussion of the lawsuit before the
Board took the significant action of placing two of its employees on administrative leave. We
4 Nowhere in the executive session minutes does it identify the specific litigation matter discussed or the
statutoiy purpose for the closed door discussion. Instead, the minutes reflect a 20 minute discussion condensed
to 3 sentences. We remind the Board that the Open Meeting Law requires that a public body "create and
maintain accurate minutes of all meetings, including executive sessions" that includes "a summary of the
discussions on each subject." G.L. c, 30A, 22(a),

remind the Board that deliberation outside a posted meeting, defined as "an oral or written
communication through any medium, including electronic mail, between or among a quorum
of a public body on any public business within its jurisdiction," G.L. c. 3 OA, 18, is a
violation of the Open Meeting Law.
CONCLUSION
For the reasons stated above, we find that the Board violated the Open Meeting Lav/
by holding an improper emergency meeting and by failing to follow the requisite procedures
for convening in executive session, which include providing sufficient detail about an
executive session, both in the meeting notice and in the announcement prior to the executive
session. We order immediate and future compliance with the law's requirements, and we
caution that similar future violations could be considered evidence of intent to violate the law.
Additionally, we order the Board to release to the public the Board's October 26, 2015
executive session minutes. The Board may not redact or withhold these minutes or any
portion thereof. Finally, we order the Board to review the Attorney General's Open Meeting
Law Training Videos #1-7 and certify to our office within thirty (30) days of this letter, using
the attached form, that it has complied with this order.5
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 Board. Please feel free to contact our office at (617) 963-2540 if you have any questions
regarding this letter.
Sincerely,

lamie Rush
Assistant Attorney General
Division of Open Government
cc:

Robert Leonard, Esq.

South Hadley Electric Light Department Board of Commissioners

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.

5 The

videos may be found at the Attorney General's website, www.mass.gov/ago/opemneeting.

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