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THE COMMONWEALTH OF MASSACHUSETTS

OFFICE OF THE ATTORNEY GENERAL


ONE ASHBURTON PLACE
BOSTON, MASSACHUSETTS 02108
MAURA HEALEY

TEL: (617) 727-2200

ATTORNEY GENERAL

www.inass.gov/ago

October 26, 2015


OML 2015-159
Regina Tate, Esq.
Murphy, Hesse, Toomey & Lehane, LLP
Crown Colony Plaza
300 Crown Colony Drive
Suite 410
Quincy, MA 02169
RE:

Open Meeting Law Complaint

Dear Attorney Tate:


This office received a complaint from Virapranh Douangmany, dated August 13, alleging
that the Amherst-Pelham Regional School Committee (the "Committee") violated the Open
Meeting Law, G.L. c. 30A, 18-25.1 The complaint was originally filed with the Committee
on July 14, and the Committee responded by letter dated August 4.2 In her complaint, Ms.
Douangmany alleges that a Committee member deliberated by e-mail outside of a properly
noticed meeting.
Following our review, we find that an e-mail sent by Committee member Katherine Appy
constitutes an individual violation of the Open Meeting Law. In reaching a determination, we
reviewed the original complaint; the Committee's response; and the request for further review
filed with our office. We also reviewed an e-mail, dated July 7, that was sent to the Committee.
Finally, we reviewed an e-mail sent to us by the Committee's legal counsel, dated September 2.
FACTS
We find the facts as follows. The Committee is a nine-member public body responsible
for the operation of schools serving the residents of Amherst, Pelham, Shutesbury, and Leverett.
The complainant is a member of the Committee. On July 7, another Committee member,
Katherine Appy, sent an e-mail to the entire Committee. It does not appear that any Committee
members responded to this e-mail. Ms. Appy's e-mail reads as follows:

1 Unless

otherwise indicated, all dates in this letter refer to the year 2015.
Despite being dated August 4, our office received a copy of the Committee's response on August 21.
3 For the sake of clarity, we will refer to you in the third person.
2

Dear Fellow School Committee Members,


At our last School Committee meeting, our chair made a brief comment at the end of the
meeting that I would like to refer to now, in this email. He stated that he was going "into
mediation" with the NAACP. No Committee member commented on this statement at
the time. I take responsibility for my own action. It was the end of a long meeting and I
wish I had been thinking faster on my feet, because upon reflection, there are several
things I should have said as a responsible Committee member. The first of which is,
"[W]hat mediation are you talking about?" "What is the purpose of the mediation?"
"What is the advice of legal counsel?" and finally "What process has been taken to hire a
mediator and does it comply with required procurement standards?"
As we are all well aware, no decisions of this type can or should be made without full
Committee participation and vote. I have attached our policy below which states quite
clearly that no individual can act on behalf of the Committee without the Committee
authorizing such action. Certainly this includes mediating on behalf of the Committee.
The full Committee is the authorizing body and should have full knowledge about the
content of the mediation and be in majority agreement about the position the School
Committee would like to take in such a mediation.
At this point it is my understanding that we haven't address any of these issues, so
therefore, no such mediation should occur. I would request of the Chair that he answer
these questions for the Committee as soon as possible and organize a discussion and vote
of the full body prior to any action being taken on behalf of the Committee.
DISCUSSION
The Open Meeting Law is intended to "to eliminate much of the secrecy surrounding
deliberations and decisions on which public policy is based." Ghighlione v. School Committee
of Southbridge. 376 Mass. 70, 72 (1978). The Law requires that all meetings of a public body be
properly noticed and open to members of the public, unless an executive session is convened.
See G.L. c. 30A, 20(a)-(b), 21. A "meeting" is defined, in relevant part, as "a deliberation by
a public body with respect to any matter within the body's jurisdiction." G.L. c. 30A, 18. The
law defines "deliberation" 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 meeting
agenda, scheduling information or distribution of other procedural meeting [material] or the
distribution of reports or documents that may be discussed at a meeting, provided that no opinion
of a member is expressed." Id. (emphasis added) Expression of an opinion on matters within a
body's jurisdiction to a quorum of a public body is a deliberation, even if no other public body
member responds. See OML 2013-29; OML 2013-27; OML 2012-15.4
Here, Ms. Appy's e-mail stated an opinion on whether the chair was authorized to enter
mediation with the NAACP. This was clearly a matter of public business within the
4 Open

Meeting Law determinations may be found on the Attorney General's website:


www.mass.gov/ago/openmeeting.
2

Committee's jurisdiction. Further, the e-mail suggested that discussion of the mediation be
added to the agenda for an upcoming meeting. Discussions of whether the body should consider
or take action on specific topics at a future meeting also concern public business within a body's
jurisdiction. See OML 2013-27; OML 2011-38. Therefore, by sending the e-mail at issue to a
quorum of the Committee, Ms. Appy violated the Open Meeting Law. See OML 2014-148. We
find that this violation was not intentional. Ms. Appy believed that her actions did not constitute
deliberation and were therefore permissible under the Open Meeting Law. For the reasons
stated, however, this was not the case.
CONCLUSION
For the reasons stated above, we find that Ms. Appy individually violated the Open
Meeting Law. We order the Committee's immediate and future compliance with the Open
Meeting Law's requirements, and we caution that similar future violations may be considered
evidence of intent to violate the law. We also order that the Committee release to the public,
within 14 days following its receipt of this letter, Ms. Appy's July 7 e-mail.
We now consider the complaint addressed by this determination to be resolved. This
determination does not address any other complaints that may be pending with our office or the
Committee. Please feel free to contact the Division of Open Government at (617) 963 - 2540 if
you have any questions.
Sincerely,

Kevin W. Manganaro
Assistant Attorney General
Division of Open Government
cc:

Virapranh Douangmany
Amherst-Pelham Regional School Committee

This determination was issued pursuant to G.L. c. 30A, 23(c). A public body or any
member of a body aggrieved by a final order of the Attorney General may obtain judicial
review through an action filed in Superior Court pursuant to G.L. c. BOA, 23(d). The
complaint must be filed in Superior Court within twenty-one days of receipt of a final
order.