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April 5, 2018
SJC Upholds Wayland OML Violation and Rejects AG's Guidance on Performance Evaluations
Boards may only receive employee performance evaluation documents containing individual members' opinions at a public meeting, or at the same time as the general public, following a decision of the Supreme Judicial Court.
The holding in Boelter v. Board of Selectmen of Wayland rejects published guidance from the Attorney General on the Open Meeting Law, and creates a mechanism for board members to distribute opinion documents to other members outside of a meeting: prior public disclosure.
Under the Boelter holding, to comply with the OML, employee performance evaluation documents containing the opinions of board members may only be distributed to a quorum of the board as follows:
  1. At a public meeting; or

  2. As part of a "prior and relatively contemporaneous public disclosure" making the document available to both the board and the public.
Thus, if the general public and the members of a board have the same level of access to the opinion documents, the board may avoid an OML violation.
While the Boelter decision deals with employee performance evaluations, the holding raises interesting questions concerning the limits of this new "prior public disclosure" exemption under the OML.
Performance Evaluation Process:
The Boelter case involves the Wayland Selectmen's performance evaluation of the Town Administrator. Public bodies charged with evaluating employees must do so at a public meeting.
The Wayland Selectmen followed a common practice, based upon guidance from the Attorney General's Division of Open Government. Board members prepared individual written evaluations of the Town Administrator on their own time and submitted those documents to the Chair. The Chair then created a composite evaluation, and distributed that document and each individual evaluation to the entire Board in advance of the public meeting at which the Board would conduct the final performance evaluation.
Deliberations and Exceptions:
Under the OML, a quorum of a public body may only hold a "deliberation" during a public meeting. A deliberation includes verbal and written communications. However, the OML carves out an exemption for "the distribution of a meeting agenda, scheduling information or distribution of other procedural meeting or the distribution of reports or documents that may be discussed at a meeting, provided that no opinion of a member is expressed." M.G.L. c. 30A, ยง 18.
AG's Guidance:
Following a complaint that the Wayland Selectmen conducted an unlawful deliberation by exchanging the written performance evaluations prior to the meeting, the AG's Division of Open Government held that "[a]lthough the document itself may have contained the opinions of Board members, we find compiling evaluations to be a permissible and necessary function for public bodies to conduct ahead of meetings, so long as discussion of the evaluations occurs during an open meeting." (OML 2013-5).
SJC Decision:
A Superior Court judge rejected the AG's interpretation and found that the Wayland Selectmen violated the OML. The SJC agreed, holding that:
"The circulated individual and composite evaluations expressed the opinions of the board members to a quorum in advance of the public meeting... [Th]e effect of the circulation of the individual and composite evaluations was that all five board members were aware of the opinions of four of the members in advance of the open meeting; thus, the circulation, in effect, constituted a deliberation, or a meeting, to which the public did not have access."
The New "Prior Public Disclosure" Exception:
The SJC also held that boards may avoid similar OML violations by simply sharing opinion documents with the public:
"If board members wish to circulate documents containing board member opinions among a quorum in advance of an open meeting, as here, prior and relatively contemporaneous public disclosure of those documents, where permissible, is necessary in order to comply with the open meeting law and to advance the statute's over-all goal of promoting transparency in governmental decision-making."
Therefore, if the Wayland Selectmen's pre-meeting packet containing the performance evaluations was made available to the board and the public at the same time, the board would have complied with the OML, according to the Boelter holding.
Mirick O'Connell will provide updates if the AG's Division of Open Government issues clarifying guidance on the impact of the Boelter decision.

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