Published in the May 10, 2018 edition.
By MARK SARDELLA
WAKEFIELD — Town Counsel Thomas Mullen has completed his investigation of the recent Open Meeting Law complaint filed against the School Committee and its Superintendent Screening Committee by Elm Street’s Daniel Lieber. While Mullen offers suggestions to the School Committee, he found substantially in their favor, determining that there were no illegal executive sessions held by the Superintendent Screening Committee and they did not improperly withhold names, applications and resumes of non-finalists in superintendent search process.
The Superintendent Screening Committee met several times in March. School Superintendent Dr. Kim Smith announced her intention to retire late last year.
Lieber’s complaint was filed on April 13 with the office of the Massachusetts Attorney General, which investigates Open Meeting Law complaints. The School Committee voted at its April 17 meeting to refer the complaint to Town Counsel Thomas Mullen.
The way Open Meeting Law complaints are handled is for the written complaint to be first filed with the board or committee that is supposed to have violated the Open Meeting Law. That board or committee then either deals with the matter itself or refers it to Town Counsel.
Town Counsel then conducts an investigation and reports his findings to the Massachusetts Attorney General’s Office and to the complainant, in this case Lieber. If the complainant is satisfied with Town Counsel’s conclusions regarding the complaint, no further action will be taken. If the complainant is not satisfied, the Attorney General’s Office may investigate further.
In his latest complaint, Lieber sought the release of all minutes of all relevant meetings and all documents used at those meetings, including resumes of all candidates. He also claimed that there were meetings of the Screening Committee that were conducted without public notice. Finally, he claimed that members of the Screening Committee “did not complete the mandatory OML training and file certification with the Town Clerk.”
Laying out the facts of the case in his report to the Attorney General’s Office, Mullen writes:
“The Screening Committee reviewed 24 applications in executive session at its meeting on March 22, 2018. From this group, six were chosen for interviews. One of those invited to interview withdrew from contention. The remaining 5 were interviewed in executive session on March 24, 2018. The names of the three who were selected for recommendation to the School Committee were publicly disclosed on March 27, 2018, when the chair of the Screening Committee informed the full School Committee of the recommendations. The three finalists were subsequently interviewed and evaluated by the School Committee in open session. To date, no identifying information has been made public concerning the 21 applicants whom the Screening Committee failed to recommend to the School Committee.
“On March 27, 2018, the date of the School Committee meeting at which the names of the finalists were disclosed, complainant Daniel Lieber sent an email to the chairs of the School Committee and the Screening Committee. He requested ‘a copy of minutes, including the documents used at the meetings, from all meetings of the Superintendent Search Committee and other committees/public bodies tasked with the superintendent recruiting process in 2018.’
“Screening Committee Chair Thomas Markham sent an email to Mr. Lieber on April 2, 2018, noting that he was very busy with out-of-state work and family matters and asking for some extra time to respond to the public records request. Mr. Lieber responded that day with a refusal. On April 9, 2018, Mr. Markham again emailed Mr. Lieber, requesting additional time and promising compliance within a week. Mr. Lieber filed his complaint on April 13, 2018. Two days later, on Sunday, April 15, 2018, Mr. Markham emailed Mr. Lieber a package containing all documents responsive to his request.”
Among other materials, that package included Superintendent Search Committee agendas for the meetings of March 22 and March 24, 2018, Superintendent Search Committee minutes for the meetings of March 22 and March 24, 2018 (open session only), lists of interview questions and the applications of finalists Jared Fulgoni, Susan Kustka and Douglas Lyons.
From his investigation, Mullen concludes that Lieber “is simply wrong in alleging that the Screening Committee met without public notice.” Mullen states that the notices and minutes of the Screening Committee meetings have been furnished to Lieber.
Mullen also finds that Lieber is not entitled to the names and resumes of the candidates for the position of Superintendent other than the three finalists finalists.
“To whatever extent Mr. Lieber may be seeking the resumes of the 21 applicants who were not among the three finalists interviewed by the School Committee,” Mullen writes, “I must respectfully respond that such production would defeat the purpose of exemption 8 of G.L. c. 30A, § 21 (a) and would violate the legitimate privacy interests of the unsuccessful applicants. Exemption 8 allows a public body to meet in executive session “[t]o 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.”
Mullen cites several examples from case law to bolster his argument before continuing with his findings on Lieber’s complaint.
“In this case, where the Screening Committee scrupulously guarded the confidentiality of the 21 applicants who failed to reach the finalist rank by going into executive session whenever such applicants were discussed or interviewed, it would be a betrayal of trust to disclose the identity of such unsuccessful candidates by producing their resumes. Nor could redaction avoid such harm, since many candidates would likely be as much exposed by the biographical facts on their resumes as by the release of their names. If the Town were forced to produce the resumes of the unsuccessful candidates, then the harm that the Screening Committee reasonably apprehended would result from an open process – namely, a detrimental effect on obtaining qualified applicants – would surely follow with respect to all future efforts by the School Committee and other public bodies when they solicit candidates. Many candidates are unwilling to risk the potential damage to their reputation in general and their relationship with current employers in particular that could flow from publicly and unsuccessfully seeking a new position.
“When they seek such posts, they usually do so in reliance on the promise of public bodies such as the Screening Committee to maintain their confidentiality unless they advance to the finalist round. A legal ruling that the confidentiality guaranteed through an executive session under exemption 8 would be defeated anytime somebody asked for a copy of the applicants’ resumes would wholly undo what the Legislature sought to accomplish by enacting that exemption.”
In his conclusions, Mullen writes, “Without suggesting that the brief delay in production here worked any hardship on the complainant, I urge the School Committee to respond in a more timely manner to future requests for minutes and other public records.
Mullen also found that all relevant meetings were properly posted.
“I cannot fault the Screening Committee for its work,” Mullen writes, “since it appears that they properly posted notice of their meetings, took detailed minutes and went into executive session in proper reliance on exemption 8.”
He does offer some words of advice for the School Committee and its subcommittees.
“In the future, all members of screening committees and subcommittees should pick up their Open Meeting Law materials from the Town Clerk and sign the certification that they have received them,” Mullen recommends.
“For the reasons set forth above,” Mullen states, “I believe the Screening Committee and School Committee have properly refrained from producing the resumes of the candidates who did not become finalists.”
Mullen reported his findings to the Office of the Attorney General on May 4, 2018.
