386 Mass. 643 | Mass. | 1982
These cross appeals raise issues of the interpretation of G. L. c. 39, § 23B (2)
We summarize the judge’s findings. On or about April 29, 1981, the superintendent of the Boston public schools sent letters to 2,261 tenured teachers informing them that he was recommending they be laid off effective August 31, 1981,
On April 16 and April 21,1981, the school committee met with its attorneys to discuss the matter of dismissal notices based on budgetary constraints. The president of the Boston Teachers Union was present at the April 21, 1981, meeting. The school committee informed her “of the impossibility of operating the school system at a $210 million budget without terminating teachers, . . . and that anticipatory notices would have to be sent to teachers who may be affected.”
On May 15, 1981, the plaintiffs filed a complaint in the Superior Court under G. L. c. 39, § 23B, seeking to invalidate “a purported vote of the . . . School Committee, which apparently was taken in executive session, contrary to law.” On May 21, 1981, the school committee voted in open session to ratify the action taken earlier in its executive session.
In their complaint the plaintiffs asserted that the school committee failed to comply with the open meeting requirement of G. L. c. 39, § 23B. Further, the plaintiffs argued that, even if the school committee had met in executive session properly, the presiding officer failed to cite in open session the true purpose of the executive session, and the school committee failed to notify in writing any of the employees or teachers whose dismissals were considered at the meeting, at least forty-eight hours prior to the proposed executive session. See G. L. c. 39, § 23B (2).
The judge determined that the “plain purpose of the meetings was to set the stage for a challenge to the legal validity of the job security clause” of the collective bargaining agreement, see generally Boston Teachers Local 66 v. School Comm. of Boston, ante 197 (1982), and that “[njeither executive session involved discipline, complaints, charges or any other misconduct leading to dismissal of the
General Laws c. 39, § 23B, manifests a general policy that all meetings of a governmental body should be open to the public unless exempted by the statute. “The open meeting law is designed to eliminate much of the secrecy surrounding the deliberations and decisions on which public policy is based.” Ghiglione v. School Comm. of Southbridge, 376 Mass. 70, 72 (1978). However, the statute recognizes that there are occasions when “[pjublic officials . . . might be unduly hampered in the performance of their duties if all gatherings of members of included governmental bodies must be open to the public.” Id. at 72-73.
The plaintiffs agree that disciplinary matters concerning public employees need not be considered in an open meeting. They argue, however, that when the school committee meets in executive session to consider the “dismissal” of tenured teachers, based on the lack of funds, the school committee is required to give the affected teachers an opportunity to be heard individually. See note 2, supra. The failure of the school committee to do so, the plaintiffs claim, requires the action taken in executive session be declared invalid.
The statute exempts disciplinary action against public employees from the open meeting law to “protect the individual’s reputation and the interest of the public in maintaining efficient personnel management and employee morale.” Note, Open Meeting Statutes: The Press Fights for the “Right to Know,” 75 Harv. L. Rev. 1199, 1208 (1962). See also Puglisi v. School Comm. of Whitman, 11 Mass. App. Ct. 142, 143-144 (1981). Those considerations, however, are not applicable when a school committee considers the massive elimination of teaching positions solely because of budgetary constraints. Such dismissals do not involve any particular individual nor are they concerned with the misconduct or discipline of any individual teacher. See School Comm. of Foxborough v. Koski, 8 Mass. App. Ct. 870, 871
Further, we believe that the notice and hearing requirement of G. L. c. 39, § 23B (2), are analogous to the notice and hearing requirements of G. L. c. 71, § 42. As we read these two statutes neither one requires the school committee to provide individual hearings for teachers who have been laid off solely for budgetary reasons. See Boston Teachers Local 66 v. School Comm. of Boston, supra at 214-216.
In its cross appeal the school committee argues that it is authorized to meet in executive session “[t]o discuss strategy with respect to . . . litigation,” and that the judge erred by requiring it to reconvene in open session. The plaintiffs concede that “the matters discussed at the two executive sessions certainly implicated par. (3) of § 23B.” The judge ruled that § 23B (3) did not eliminate the need for an open meeting subsequent to the executive session because “[tjhere is no showing that there would have been ‘a detrimental effect on the bargaining or litigating position if the School Committee had reconvened in open session to vote to authorize the sending of the notice letters.”
The case is remanded to the Superior Court where a judgment is to enter declaring that the school committee’s decision to meet in executive session falls within the exemption of G. L. c. 39, § 23B (3), and that G. L. c. 39, § 23B (2), does not apply to massive layoffs based on the financial inability of the school committee to continue to pay its personnel.
So ordered.
General Laws c. 39, § 23B (2), provides that executive sessions may be held “[t]o consider the discipline or dismissal of ... a public officer, em
General Laws c. 39, § 23B (3), provides that an executive session may be held “[t]o 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 governmental body.”
Since we have concluded that the school committee was authorized to meet in executive session, we need not decide whether an improperly held executive session may be cured by a subsequent open meeting. See Attorney Gen. v. School Comm. of Taunton, 7 Mass. App. Ct. 226, 228 n.2 (1979).
The plaintiffs do not argue on appeal that the reasons proffered by the school committee are a sham or a subterfuge. See Boston Teachers Local 66 v. School Comm. of Boston, supra at 216.
The plaintiffs have not briefed this issue on appeal. The plaintiffs limited their argument to the applicability of G. L. c. 39, § 23B (2).