405 Mass. 465 | Mass. | 1989
Joshua Gerstein, Joseph Gerstein, Ibuki Kimura, and Niall Maher filed a complaint and request for injunctive relief against the defendants, superintendent search screening committee (screening committee) and the school committee of Weston (school committee), in which they alleged that the defendants had violated the open meeting law, G. L. c. 39, §§ 23A-23C (1988 ed.), by interviewing and evaluating applicants for the position of school superintendent while in an “executive session” closed to the public. The district attorney for the northern district filed a separate complaint for declaratory and injunctive relief against the defendants in which he alleged the same and other open meeting law violations. The two actions were consolidated, and the individual plaintiffs and the district attorney (plaintiffs) filed a motion for summary judgment. The defendants opposed those motions and themselves moved for summary judgment. A judge concluded that there was no substantial question of material fact requiring
The parties stipulated to the following facts: The school committee, a “governmental body” within the meaning of the open meeting law, established the screening committee in November, 1987, “for the purpose of conducting a preliminary screening of candidates for the position of Superintendent of Weston Schools and to recommend candidates to be interviewed by the School Committee.” The screening committee also was a “governmental body” within the meaning of the open meeting law. In response to advertisements, the committee received eighty-nine letters of inquiry and résumés from applicants for the position. Fourteen other individuals were referred to the screening committee from other sources. The screening committee conducted open meetings on December 8, 15, and 22, 1987, and on January 5, 1988. A quorum of the committee attended each meeting and deliberated on the eighty-nine letters of inquiry and résumés. During the course of those meetings, the screening committee decided to invite twenty-seven of the candidates who had submitted résumés, as well as the fourteen individuals who had been referred from other sources, to complete an application, answer a questionnaire, and submit a writing sample. The minutes of those meetings identify the candidates by code number rather than by name.
The screening committee convened open meetings on January 19 and 26, and February 5,1988. A quorum of the screening committee attended those meetings and deliberated on the applications, on the completed questionnaires and on the writing samples which the invited candidates had submitted. As a result of, and during the course of, those meetings, the committee decided to interview thirteen candidates. The committee also decided that candidates’ concerns about confidentiality were
During the second of two meetings held on February 27, the screening committee reconvened in open session and deliberated . on the merits of the candidates who had been interviewed. During the course of that meeting, the committee recommended that eight individuals be interviewed by the school committee.
The school committee met on March 16,1988, in open session and accepted the recommendations of the screening committee. The school committee interviewed the eight candidates in several open session meetings held during March. On March 31, during an open session meeting, the school committee selected three of the eight remaining candidates as finalists. All subsequent deliberations about the three candidates were conducted in open session as was the vote to offer the position to one of the three.
General Laws c. 39, § 23B, requires that “[a]ll meetings of a governmental body shall be open to the public and any person shall be permitted to attend any meeting except as otherwise provided” by that section. Section 23B also provides that executive sessions may be held only for eight specified purposes. The eighth enumerated purpose is “[t]o consider and interview applicants for employment by a preliminary screening committee or a subcommittee appointed by a governmental body if 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 or a subcommittee appointed by a governmental body, to consider and interview applicants who have passed a prior preliminary screening.” G. L. c. 39, § 23B (8), as amended
The plaintiffs argue that § 23B (8) did not apply for two reasons: (1) the statement of one of thirteen candidates interviewed that she would withdraw her candidacy if she had to be interviewed in public was an insufficient basis for the screening committee’s conclusion that “an open meeting will have a detrimental effect in obtaining qualified applicants” for the position of superintendent. (2) The thirteen applicants who were interviewed in executive session had already “passed a prior preliminary screening” which, by the express terms of clause (8), makes clause (8) inapplicable. The judge rejected those arguments. He noted that “[t]he Screening Committee’s minutes indicate that at least one candidate had requested confidentiality. . . . The Screening Committee risked losing qualified applicants if the interviews were held in open session. Under the circumstances, it was reasonable for the Screening Committee to find that an open meeting would have a detrimental effect.” The judge also concluded that the screening committee’s review of applications and applicants’ résumés and writing samples did not constitute a “prior preliminary screening” which would preclude the thirteen interviews being conducted in executive session.
Before addressing the plaintiffs’ arguments, we briefly discuss a threshold argument made by the defendants in the Superior Court and again here that the interviews in question are not within the purview of the open meeting law. The defendants point out that the interviews consisted simply of prepared questions put by committee members to candidates and the candidates’ answers. The members, the defendants say, did not engage in a “verbal exchange” with one another in an attempt to arrive at a decision. Therefore, the interviewing sessions did not constitute meetings for the purpose of “delib
We turn to the plaintiffs’ first contention that the statement of one candidate chosen for an interview, that she would withdraw if the interview were to be conducted in public, was inadequate support for concluding that interviews at an open meeting would “have a detrimental effect in obtaining qualified applicants.” We reject the argument. Surely, the loss of even one candidate out of thirteen chosen for interviews, by limiting the pool available to the committee, is “detrimental” to the committee’s task. It cannot be persuasively argued that there is no detriment until at least two or some other number of candidates have declined to participate in public interviews.
The plaintiffs’ second argument is that the clause (8) exception to the open meeting law did not apply to the thirteen interviews because those candidates had already “passed a prior preliminary screening” within the meaning of that language in clause (8)’s proviso. We think the judge was right in concluding that the interviewed candidates had not “passed a prior preliminary screening” when they were interviewed. According to the parties’ stipulation, the screening committee’s assignment was
Section 23B specifically authorizes a preliminary screening committee to “consider and interview applicants for employment,” and to do so in executive session in circumstances properly found to have existed in this case unless the applicants “have passed a prior preliminary screening.” An interpretation of the proviso in clause (8) that would effectively prevent a screening committee from both considering and, in aid thereof, interviewing candidates in closed session would defeat the clear language and purpose of clause (8). Nothing in the statute suggests that “a prior preliminary screening” is limited to a one-time only review of an applicant’s credentials. Indeed, as the judge recognized, if a screening committee’s review of résumés and writing samples were to preclude the committee from subsequently conducting executive session interviews despite the detrimental effect public interviews might have on the committee’s task, the committee would be faced with the choice either to live with the detrimental effect or to interview every applicant regardless of qualification. It is apparent that
In addition to the matters discussed above, the plaintiffs assert that the screening committee committed other open meeting law violations — violations of a procedural nature. They say that the committee violated G. L. c. 39, § 23B, third par., by convening in executive session on several occasions without first announcing whether the committee would reconvene in open session. We agree with the judge that, in the context of this case, that violation was de minimis. Ghiglione v. School Comm. of Southbridge, supra at 74. The purpose of the announcement requirement, that is, that the public receive notice of the anticipated continuation of an interrupted open meeting, was not subverted in this case as the committee did not in fact reconvene in open session on any of those occasions.
Finally, the plaintiffs point to the fact that none of the screening committee’s minutes identifies the applicants considered or discussed by that committee even though there had been no showing that the privacy concerns of any of the applicants were in issue. The plaintiffs refer the court to Attorney Gen. v. School Comm. of Northampton, 375 Mass. 127, 130 n.2 (1978). In that case, we held that a school committee had violated the open meeting law by failing to disclose the names of candidates for the position of superintendent of schools who had been considered by that committee in open session. The case was decided before § 23B (8) was enacted. The school committee of Northampton relied on G. L. c. 39, § 24, as amended by St. 1970, c. 78, § 2, stating that the provisions of G. L. c. 39 “shall be in force only so far as they are not inconsistent with the express provisions of any general or special law.” Id. at 129. The school committee pointed to G. L. c. 214, § IB, inserted by St. 1974, c. 193, § 1, which provides that “[a] person shall have a right against unreasonable, substantial or serious interference with his privacy,” as a law requiring the committee to withhold the names. In footnote 2, to which the present plaintiffs refer, we said: “Much the same considerations would have applied if the school committee had voted to go into executive session under the authority of G. L. c. 39, § 23B (7), as appearing in St. 1976, c. 397, § 6, which permits executive sessions ‘[t]o comply with the provisions of any general or special law.’”
The present case, unlike Attorney Gen. v. School Comm. of Northampton, supra, does not involve a school committee’s withholding of names of candidates considered by the school committee. Rather, this case raises the question whether the screening committee violated the open meeting law by withholding the names of individuals it considered during the preliminary screening process. We suggested in Attorney Gen. v. School Comm. of Northampton, supra at 130, that there are substantial reasons for protecting the identity of individuals who were candidates only early in the process. Furthermore, the addition of clause (8) to G. L. c. 39, § 23B, as amended through St. 1986, c. 694, demonstrates the Legislature’s endorsement of such confidentiality. Consequently, even though the screening committee’s meetings through February 5, 1988, were open meetings, we decline to order the disclosure of the identities of those candidates who were considered only by the screening committee and not by the school committee.
Judgment affirmed.
We acknowledge the brief of amicus curiae Massachusetts Newspaper Publishers Association.