The Republican asked Coakley about the closed session as part of Sunshine Week, a national effort to promote a discussion about open government and freedom of information.
Attorney General Martha Coakley took over enforcement of the Open Meeting Law on July 1.Editor's note: Sunshine Week, which runs through Saturday, is a media initiative that celebrates the public's right to an open government. This story is being published as part of The Republican's commitment to open government.
BOSTON -- The state attorney general says she will review the actions of the trustees of the University of Massachusetts for possible violations of the state Open Meeting Law when they met in closed session in January to question three finalists for the president's job.
Attorney General Martha M. Coakley’s review should help clarify a section of the Open Meeting Law that regulates interviews for finalists for positions. Coakley took over enforcement of the law on July 1 from district attorneys. The Republican had asked Coakley about the Jan. 13 closed session as part of Sunshine Week, a national effort starting Sunday and led by the American Society of News Editors to promote a discussion about open government and freedom of information.
According to a report by Coakley’s office, one purpose for executive sessions is to interview job applicants but such closed meetings can occur only during preliminary screenings of candidates. Once there are finalists, all screenings must be conducted in open meetings, the attorney general’s report said.
Coakley said her office can conduct a review of a potential violation, but she is making no judgments at this time. “We're going to look at what the board did in that instance,” she said.
A spokesman for the University of Massachusetts said he was confident the Jan. 13 executive session in Boston was appropriate and consistent with state law.
Robert P. Connolly, vice president for strategic communications, said that generally trustees went into executive session for three reasons allowed under the Open Meeting Law. Those reasons include discussing the character and reputation of individuals, conducting a strategy session to prepare for negotiations with nonunion personnel -- the president-elect in this case -- and to comply with any general or special law such as state privacy laws.
The Open Meeting Law says that state and municipal governmental bodies must hold their meetings in public with certain exemptions.
The law includes 10 reasons for a public body to meet in executive session.
Connolly said trustees did not use the purpose for an executive session in the Open Meeting Law that specifically guides interviews of job applicants.
Instead, they used the three other purposes, which were applicable to the session, he said.
No interviews with finalists were held in open session.
Before the full board meeting, a separate public body – the 21-member search committee – met in closed session with each of the three candidates at a downtown Boston hotel. A spokesman for Coakley declined comment on whether the office would review the meetings with finalists by members of the search committee. A member of the search committee, Edward W. Collins Jr. of Springfield, said the search panel also abided by the law.
View full sizeRobert Ambrogi, a lawyer and member of the state's Open Meeting Law Advisory Commission, says it is clear that trustees violated the Open Meeting Law when they met behind closed doors with finalists for the president's job.Robert J. Ambrogi, a lawyer and member of the state’s Open Meeting Law Advisory Commission, said the law is clear and unequivocal in its requirement that the final stages of screening the applicants for a position are to be held in public.
Ambrogi said trustees circumvented the intent of the Open Meeting Law.
“The more important the position, the more important it is that the public be kept informed,” said Ambrogi, who is also executive director of the Massachusetts Newspaper Publishers Association. “The exceptions cited by the university do not apply to screening job candidates.”
Once the preliminary screening is done, the law requires that all other meetings “to consider and interview applicants” must be conducted in public, Ambrogi said.
After meeting behind closed doors, trustees reconvened in open session and voted unanimously to elect Robert L. Caret as the president of the five-campus University of Massachusetts. Caret will succeed Jack M. Wilson, who is stepping down as president on July 1.
Before that vote in open session, trustees held a three-hour closed meeting during which they met separately with each of the three finalists, according to James J. Karam, chairman of the trustees. Karam said trustees were limited in terms of the questions they could pose to candidates. “They were questions normally not asked in public,” he said.
Karam said trustees checked with the university’s general counsel before voting to hold the executive session. Karam said the university also obtained clarification from the attorney general’s office ahead of the closed meeting.
“This was not done willy-nilly,” Karam said.
Coakley said her office did not pre-approve the closed meeting of trustees.
Coakley’s review comes as she is nearing completion of the first year of her oversight of the Open Meeting Law. State legislators put the attorney general’s office in charge as part of an overhaul of the 36-year-old law in 2009. The new law included creation of an advisory commission.
Under the revised law, anyone can obtain a complaint form from the attorney general’s office over the Internet and use the form to cite a possible violation for review. The law created a new division of open government in the attorney general’s office. Coakley said she has assigned two full-time assistant attorneys general and a half-time para-legal to the office.
The attorney general’s office says it has so far received 76 complaints around the state and reached findings on 29. The office said that the findings included 15 violations of the law.
Of the complaints, six came from Western Massachusetts. The attorney general’s office found that only one of those six complaints – an error in the posting of a July 6 meeting notice by the Wales Board of Selectman -- resulted in a violation.
The office ordered the Wales board to comply with the law in the future by including on notices a list of topics that could be discussed at a meeting. The list of topics is a new requirement for meeting notices went into effect less than a week before the July 6 meeting, the attorney general noted.
If the attorney general’s office finds a violation, it can order remedial action by the public body, direct immediate and future compliance, order attendance at a training session, release of records or other action.
In the case of an illegal executive session, the office could order release of minutes as one possible remedy. Executive sessions don't have to be taped, but minutes must be kept.
The office also may nullify the action of a public body or issue $1,000 fines against a state or municipal board for each intentional violation of the Open Meeting Law. So far, Coakley’s office has not issued any fines.
Under the new law, complaints generally must be filed with the proper form within 30 days of a violation. The complaint must be sent to the clerk of a community if the allegations involve a municipal board. The complaint goes to the board chairman if the charges involve a county, regional or state board. People can ask the attorney general to investigate if they don't like the action taken by the board in response to the complaint.
Coakley said the new law is a “huge improvement” over the prior law, when oversight and enforcement were provided by district attorneys. Under prosecutors, enforcement was too fragmented, she said.
Coakley said the new complaint process is resulting in faster and better resolution of possible violations. The office says it will settle complaints generally within 90 days.
“Clearly, people are taking advantage of using the on-line complaints,” she said. “People haven't been afraid either to come to us or to file a complaint.”
The attorney general’s division of open government, led by Assistant Attorney General Britte McBride, is also holding a series of forums around the state to educate people about the new law. One will be held from 6 to 8:30 p.m. May 25 at Northampton High School.
