In this lesson we will review several areas of the law relating to the ordinary conduct of school district business. Each of these areas is broad in scope. As a result, we will highlight some of the general issues which arise and provide references to other resources available on the internet for your more detailed review as needed.  

Areas include a discussion of the

• Open Meeting Law
• Public Records laws
• Conflict of Interest statute 
• Municipal liability issues.

The Opening Meeting Law is codified at M.G.L. c. 39, §23A & M.G.L. c. 39, §23 B.  The law establishes a process for conducting the business of governmental bodies in public session and in executive sessions.  The law presumes that all meetings of governmental bodies are open to the public unless the business of the proposed executive session falls within one of nine specific statutory exceptions.  The exceptions are strictly construed and a violation of the executive session process are typically prosecuted by local newspapers or the District Attorney’s office.  

Complaints alleging a violation of the executive session process must be filed within 21 days of the alleged violation.  Courts have the authority to void the action taken by the governmental body if an executive session was improperly convened or if a subject discussed in an executive session was not within one of the nine exceptions.  Civil penalties may be imposed in an amount no to exceed $1,000.00.  

The statute delegates to the Districts Attorneys authority to regulate and/or review allegations of Open Meeting Law violations in each county.  As a result, you should refer to the Office of the District Attorney for the county in which your school district is located to determine specific local rules.  Those of you in regional school districts which may cross county lines should be aware that different interpretations of the Open Meeting Law exist in different counties and that the interpretation which applies may be dependent upon the physical location of the meeting or the facts giving rise to a violation.

Read the 9 Reasons for Convening an Executive Session before reviewing the following cases.

Most school districts run afoul of the executive session law when they attempt to engage in a discussion during a duly convened executive session which is not related to the lawful purpose of the executive session.  Courts have set aside action taken in executive sessions when superintendents have acted improperly.  Please see Puglisi vs School Committee of Whitman, 11 Mass. App. Ct. 142 (1981) (Executive session was a sham convened to allow superintendent to advocate for his reputation and character during discharge proceedings involving principal; discharge set aside.  Court acknowledges the possibility of back pay.)

Subsection (3) of Section 23B of the Open Meeting Law, permits executive sessions to discuss collective bargaining strategy, litigation or contract issues with nonunion personnel and has also been the subject of frequent litigation.  See Attorney General v. School Committee of Taunton, st1:Street>7 Mass. App. Ct. 226 (1979).  (Executive session may be convened to discuss salaries with nonunion personnel when open discussion would have an impact on union negotiations.)  School committees violate the Open Meeting Law if they insist on conducting grievance hearings in public session.  See Ghiglione v. School Committee of Southbridge, 376 Mass. 70 (1978). 

The exemption for public sessions to discuss litigation has been narrowly construed. As a general matter there is no privilege for governmental bodies to receive general legal advice in executive session.  See District Attorney for the Plymouth District v. Board of Selectmen of Middleborough, 395 Mass. 629 (1985).  The litigation which is the subject of an executive session must either be active, that is filed in court and therefore pending, or threatened.  See Doherty, et al v. School Committee of Boston, 386 Mass. 643 (1982). 

The law exempts from its requirements chance meetings or social meetings “at which matters relating to official business are discussed so long as no final agreement is reached.”  Unfortunately, this rule is more often than not honored in the breach.

Participate in the Open Meeting Law Discussion

The public records law is often cited by school districts and administrators as a source of constant but low level irritation, like a toothache. The law, can be retrieved at M.G.L. c. 66, §10(a) – (d). Oddly enough, while provisions of Chapter 66 outline the process for retention and disgorgement of public records, the definition of what constitutes a public record in contained in a separate statute, M.G.L. c. 4, §7, cl. 26.

Records custodians are not required to “create” a document to fit a request. It is acceptable to respond that no document exists as requested. A public records custodian must retain copies of records and provide a response to a public records request delivered in hand or by first class mail within ten days of receipt. If the public record can be produced sooner than ten days it must be produced. See Globe v. Commissioner of Education, 439 Mass. 124 (2003). The custodian of a record can require, as a pre-condition of compliance, payment of a reasonable fee for copy and search time. Please review 950 CMR 32.03 & .06

Specific Documents/Definition of Public Records

Class members should assume that all records are public, see M.G.L. c. 66, §10(c), and that, should they cite an exemption to the law, the burden is on the custodian to prove the exemption applies. See Attorney General v. School Committee of Northampton, 375 Mass. 127 (1978). The exemptions from the definition of public record contained in M.G.L. c. 4, §7, cl. 26, are specific and, like the Open Meeting Law, are strictly construed. See Attorney General v. Commissioner of Real Property, 380 Mass. 623 (1980).

Although there are a multitude of specific exemptions, subsection (c) of clause 26 is the exemption most commonly cited by school officials for refusing to disgorge records. Subclause (c) exempts from disclosure “personal and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” There are a multitude of decisions from the Supervisor of Public Records Office relating to the personal/medical exemption or the distinct exemption relating to the release of materials which may constitute an unwarranted invasion of privacy. See the link for the Supervisor of Public records, http://www.sec.state.ma.us/pre/preidx.htm.

As a general matter, you should consider the following records as always subject to disclosure: payroll records, see Hastings v. Treasurer of Lynn, 374 Mass. 812 (1978); attendance records, see Brogan v. Westport, 401 Mass. 306 (1987); names and address of employees, Pottle v. School Committee of Braintree, 395 Mass. 861 (1985); semifinalists for employment, see Attorney General v. School Committee of Northampton, 375 Mass. 127 (1978). Materials which have historically been considered exempt from disclosure by the Supervisor of Public Records include some (but not all) application materials, such as letters of references and recommendations, grades received, grade point average, class rank, interviewer’s notes and social security number. Other application materials, such as degrees received or academic credentials, including teacher certification, are typically considered public records.

The State Ethics Commission maintains and excellent website containing summaries of a multitude of decisions it has rendered. You may locate the website at: http://www.mass.gov/ethics/. It is important to know that the state Conflict of Interest Law merely requires, in many instances, public disclosure of a potential conflict prior to engaging in the activity or behavior which might spawn the conflict. The statute does not typically act as an absolute bar against behavior. Complaints can be made anonymously to the Ethics Commission which then investigates.

In addition to the nepotism provisions contained in Section 19, the law also requires public disclosure before a municipal official participates as an official in any action involving a business entity in which he or a family member has a financial interest, unless prior disclosure is made. A financial interest is typically defined as a matter having substantial value, which is, not more than $50.00. See Graham v. McGrail, 370 Mass. 133 (1976).

Another Section of Chapter 268 expressly prohibits contracts between a municipal employee who has a direct or indirect financial interest in the contract between an entity and the governmental entity. The law is not violated under Section 20 if the municipal employee fully discloses the interest within 30 days of learning of an actual or prospective violation of the contract and terminates or disposes of the interest. See McCann v. State Ethics Commission, 32 Mass. App. Ct. 421 (1992).

Finally, Section 23 of Chapter 268 establishes broad standards of conduct for public employees. Although the standards of conduct provisions of Section 23 do not contain penalties, financial or otherwise, they are referenced by the Ethics Commission when the standards of conduct are violated. Section 23 prohibits acceptance of employment by public employees, when the employment has responsibilities which are inherently incompatible with the responsibilities of the public office. Additionally, Section 23 abjures any circumstance in which a public employee uses or attempts to use his official position to secure unwarranted privileges or exemptions for himself and which privileges or exemptions are not properly available to similarly situated individuals. Finally, Section 23 adopts a reasonable person standard for evaluating the ethical conduct of public employees. Under Section 23b(3) public employees may not act in a manner which would cause a reasonable person in possession of all the relevant circumstances to conclude that the public employee can be unduly influenced or otherwise act or fail to act as a result of rank or relation.

G.L. c. 258, which authorizes suits against governmental employers for the negligence of their employees when that negligence occurs in the course of an employees’ employment, was adopted after the Supreme Judicial Court determined that a student who was injured in an accident at school could not sue the school district for injuries sustained as a result of district negligence. Section 2 of Chapter 258 makes it clear that public entities are now responsible for the negligence of their employees and that public employees are not personally liable for any injury or loss of property or personal injury resulting from their negligence or wrongful act provided the injuries occurred while the employee was acting within the scope of his employment.

Public employers may not be subject to damages in excess of $100,000.00 and may indemnify public employees from personal loss for up to $1,000,000.00 pursuant to Section 9 of Chapter 258 for intentional acts (as opposed to negligent acts) if the employee was acting within the scope of his employment at the time.  

Negligent Supervision

Cases Many school districts are being sued on the theory that they “negligently supervised” their buildings or staff, resulting in injuries to students at the hands of non-employee third parties. The Supreme Judicial Court has made it clear that the provisions of Chapter 258 protect public employers, such as school districts, from claims based on the actions of third party, non-employees. See Brum v. School Committee of Dartmouth, 428 Mass. 684, (1991). (Estate of student killed at Dartmouth High School by other youths, not students in the school, who invaded the high school, has no action against school district for failing to prevent harm.)

Additionally, the tidal wave of litigation around sports injuries and injuries sustained while engaged in extracurricular activities has given rise to the utilization of releases and waivers of claims in connection with participation in such activities. The Supreme Judicial Court has endorsed that practice. See Sharon v. City of Newton, 437 Mass. 99 (2000). (City properly relied on waiver/release of claims to defend against injuries sustained by cheerleader during cheerleading activities.)