A school committee would violate the open meeting law (OML) if it deliberated the professional competence of the Superintendent in an executive session or through other forms of communication.

Unless one of the exceptions provided for in the OML applies, all deliberations between and among school committee members must take place in open session.

The 2009 amendment of the OML, which takes effect on July1, 2010, defines "[d]eliberation" 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; provided, however, that 'deliberation' shall not include 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." G.L. c. 30A, § 18, inserted by St.2009, c. 28, § 18 (effective July 1, 2010).

The exceptions in the OML that would allow a governmental body to meet in executive session may not be used to circumvent the requirements of the OML.

All discussions of an employee’s professional competence must occur in open session.

Emails between and among committee members that contain an expression of the author’s opinion or position on a matter that will come before the committee would constitute a violation of the OML.

Following an open meeting discussion of the superintendent’s evaluation, the committee can go into executive session to prepare a written evaluation which can remain confidential because of the Court’s prior decision in the Wakefield Case which exempted personnel records from production pursuant to the state’s Public Records Law.

The terms of the superintendent’s contract cannot be applied in a manner that contradicts the holdings of the Wayland and Wakefield Cases.

Nothing in the case law prohibits an individual committee member from meeting with the Superintendent to discuss his/her performance.

<<< REVISED January 2, 2010 >>>