The plaintiffs, three registered voters of Hampshire County, who are also the editors of the Daily Hampshire
The pertinent facts are as follows. The school committee had employed John Burgess as director of pupil personnel services (director) from August, 1975, until he resigned, effective July 1, 1985. Prior to the resignation of the director, the school committee had confronted him with allegations that he had engaged in acts of sexual harassment of other school employees. On December 3, 1984, the school committee went into executive session, purportedly pursuant to G.L.c. 39, § 23B,
On February 11, 1985, the school committee held a hearing pursuant to G.L.c. 71, § 42.
The school committee argues that the relevant provisions of the open meeting law, G.L.c. 39, §§ 23A, 23B, 23C, and 24, give the school committee authority and discretion to keep secret the executive session minutes. The school committee points to language in G.L.c. 39, § 23B, as appearing in St. 1978, c. 372, § 11, which provides in pertinent part: "A governmental body shall maintain accurate records of its meetings, setting forth the date, time, place, members present or absent and action taken at each meeting, including executive sessions. The records of each meeting shall become a public record and be available to the public; provided, however, that the records of any executive session may remain secret as long as publication may defeat the lawful purposes of the executive session, but no longer" (emphasis supplied).
While it is true that the statute gives the school committee authority and discretion to keep secret the minutes of executive sessions, there is a limit placed on the committee's power. The minutes may be kept secret only "as long as publication may defeat the lawful purposes of the executive session, but no longer." The lawful purposes of the executive sessions called by the school committee were to discuss the dismissal of the director and to discuss the litigation that the school committee was engaged in with the director.
The school committee also contends that G.L.c. 71, § 42, gives the school committee final authority and discretion to determine whether dismissal hearings will be held in open or closed sessions. The pertinent part of § 42 provides: "a teacher or superintendent ... shall not be dismissed ... unless, if he so requests, he has been given a hearing before the school committee which may be either public or private at the discretion of the school committee." The school committee asserts that this portion of § 42 conflicts with, and supersedes, the provision in G.L.c. 39, § 23B, that governs the publication of the minutes of executive sessions.
In support of its contention as to the impact of § 42, the school committee cites Kurlander v. School Comm. of Williamstown, 16 Mass.App.Ct. 350 (1983), which, it says, held that an inconsistency existed between the open meeting law, G.L.c. 39, §§ 23A, 23B, 23C, and 24, and G.L.c. 71, § 42. In Kurlander, supra at 360-361, the court simply ruled that deliberations on the dismissal of a teacher could be held in private even though the hearing had been held in public at the request of the teacher. Kurlander is inapposite to this case. The Kurlander court did not address the issue before us, namely, whether the minutes of an executive session must be released after the purposes of executive deliberation have been served. Similarly, Perryman v. School Comm. of Boston, 17 Mass.App.Ct. 346, 351-352 (1983), on which the school committee relies, does not decide the issue before us. General Laws c. 71, § 42, is silent with respect to the language of G.L.c. 39, § 23B, dealing with the release of the minutes of executive sessions. As to this issue, the statutes are not in conflict.
The school committee acted honorably in promising to the director that it would keep the executive minutes private. However, the school committee did not have the power to carry out its promise in perpetuity.
Several paragraphs of the statute have since been amended, but none of the amendments affects this case.