THE COMMONWEALTH OF MASSACHUSETTS OFFICE OF THE ATTORNEY GENERAL

ONE ASHBURTON PLACE BOSTON, MASSACHUSETTS 02108 MARTHA COAKLEY

ATTORNEY GENERAL

(617)727-2200 www.mass.gov/ago

March 3, 2014 OML 2014-23 Mr. Femand J. Dupere, Esq. 223 College Highway Post Office Box 373 Southampton, MA 01073 RE: Open Meeting Law Complaint

Dear Attorney Dupere: This office received a complaint from Ms. Laurie A. DePino, dated December 13, 2013, alleging that the Granby School Committee (the Committee) violated the Open Meeting Law, G.L. c. 30A, 18-25. Lhe complaint was originally filed with the Committee on or about November 23, 2013. The Committee responded to the complaint by letter dated December 13. 2013. The complaint specifically alleges that the Committee manipulated the notice for its November 4, 2013 meeting in order to avoid public comment on a project involving the installation of a dinosaur statue on public school grounds. The complaint further alleges that the Committee's visitor comment policy violates the law because it requires members of the public to request that they be added to the agenda one week in advance of a scheduled meeting while the Committee itself, under the Open Meeting Law, is required to post notice of a meeting only 48 hours in advance.1 In reaching our determination, we reviewed Ms. DePino's November 23, 2013 complaint filed with the Committee; the Committee's December 13, 2013 response; and the December 13, 2013 complaint filed with this office. Additionally, we reviewed the notices for, and minutes of, the Committee's December 3, 2012 and November 4, 2013 meetings, and the minutes of the Committee's March 11, 2013 meeting.

1 In the December 23, 2013 complaint filed this office, Ms. DePino additionally alleges that the minutes of the Committee's November 4, 2013 meeting contain her name and slander her. We decline to review these allegations because they were not included within the December 13, 2013 complaint and the Committee has not had an opportunity to respond to them. See G.L. c. 30A, 23(b); 940 CMR 29.05(3). Additionally, we note that, even if these allegations were true, they would not constitute violations of the Open Meeting Law.

Following our review, we find that the Committee's November 4, 2013 meeting notice and public comment policy did not violate the Open Meeting Law. However, our review raised concerns about the sufficiency of the Committee's December 3, 2012, March 11, 2013 and November 4, 2013 meeting minutes, thus we offer guidance to the Committee on relevant requirements of the Open Meeting Law. FACTS We find the facts to be as follows. Fossilized dinosaur footprints have been discovered within the Town of Granby (the Town). These footprints, which are visible to the public, are a source of local pride. In light of this history, the Town decided that a good way to bring attention to the Town would be to place dinosaur statues at various locations across the community. The Committee compares the project to those conducted in other communities where bears or other statues were installed. This complaint centers on the installation of a rainbow-colored dinosaur statue on public school property in the Town. The Committee asserts that the dinosaur was donated and no Town funds were expended. On December 3, 2012, the Committee held an open meeting. The agenda for that meeting listed, under the heading "Visitor's Comments," the following: "Shaina Humphrey 'Dinosaurs Make Cents.'" A note under the heading "Visitor's Comments" read, "Please contact the Central Office ... one (1) week in advance of the scheduled meeting to be included under visitors comments." During the December 3, 2012 meeting, Ms. Humphrey and Brenda Galloway discussed a "penny drive" for a project called "Dinosaurs Make Cents." The minutes do not describe the project in detail, but note that "[p]ermission was given over the summer by the superintendent" and that "[tjhis is completely voluntary by the students." The minutes do no list any votes taken or documents used by the Committee during the discussion of this topic. During the Committee's March 11, 2013 meeting, Ms. Humphrey again addressed the Committee during "Visitor's Comments" regarding the "Dinosaur Statue Project." She reported to the Committee that the Dinosaur Statue Committee had selected a site between East Meadow and the Junior/Senior High School for placement of a particular statue. She further noted that the Dinosaur Statue Committee was "looking at pouring the pad in May with installation of the statue in early June." The minutes do no list any votes taken or documents used by the Committee during its discussion of this topic. Subsequently, the statue was installed and, according to the complainant, "questions arose." On October 30, 2013, the Committee posted notice for a meeting to be held on November 4, 2013. Under "Visitor's Comments," the standard notification of the Committee's policy for inclusion in this portion of the agenda was listed. No speakers were identified under this heading. Another topic on the agenda was "Vote - Approval for permission to have the Dinosaur on school premises." During discussion of this agenda item at the November 4, 2013 Committee meeting, the Committee played a video of its December 3, 2012 meeting and

2 discussion of the dinosaur project followed. The minutes summarize the discussion depicted in the December 3, 2012 meeting video as follows: Dr. Rodriguez invited [Ms. Humphrey] to speak to the School Committee regarding two issues, to provide information regarding the fundraiser as the Superintendent had already approved the fundraiser during the summer; but most importantly to inform the School Committee about the placement of the Dinosaur on School Property which would be the result of the fundraiser.

Also documented was the discussion surrounding how the fund raiser would take place, the schools that would participate, the fact that the class that collects the most will be able to select the design of the dinosaur, and the discussion on the location of The Dinosaur. The final recommendation regarding this issue of the December 2012 school committee meeting was to have Ms. Humphrey come back once the fund raiser was complete and she knew whether we were going to place one or two statues on school property. The Superintendent, Dr. Rodriguez, then stated that Ms. Humphrey did return for the March 11, 2013 meeting, and shared with the Committee a memo distributed during that meeting identifying the third grade class at the West Street School that raised the most money during the penny drive. As a result, the third graders won the chance to select the design of the dinosaur. She explained that a class of first graders was bused in courtesy of First Student bus company to watch the pouring of the cement and installation of the dinosaur, and the dinosaur was subsequently painted by volunteers from the Granby High School. Dr. Rodriguez described the project as "truly a school-wide activity, and one that we as [a] district participated with the community in." Following this overview. Committee Member Quesnel stated that, since there seemed to be confusion as to whether a vote was taken at the March School Committee meeting regarding the placement of the dinosaur, a vote would be taken at this meeting "to approve permission to the Dinosaur Project to locate their dinosaur on school premises until the owner wishes to remove the dinosaur or the school committee votes to return the dinosaur to its owner of the Dinosaur." The Committee then voted unanimously to keep the dinosaur statue on school grounds. DISCUSSION The Open Meeting Law was enacted "to eliminate much of the secrecy surrounding deliberations and decisions on which public policy is based." Ghiglione v. School Committee of Southbridge, 376 Mass. 70, 72 (1978). Accordingly, the law requires that except in an emergency, a public body post notice of every meeting at least 48 hours prior to such meeting in an easily understandable format containing the date, time, and place of the meeting and a list of topics that the chair reasonably anticipates will be discussed. G.L. c. 30A, 20(b). Public bodies must list topics in a meeting notice with "sufficient specificity to reasonably advise the
2

The video is not listed in the minutes as an exhibit used at the meeting. See G.L. c. 30A, 22(a).

public of the issues to be discussed at the meeting." 940 CMR 29.03(l)(b). We generally consider the description of a topic sufficiently specific when a reasonable member of the public could read the topic and understand the anticipated nature of the public body's discussion. See OML 2013-112; OML 2013-15.3 Although the complainant asserts that "the majority of town did not know why or how [the dinosaur statue] got there," the project was discussed in some detail during at least two open meetings prior to the one at issue in the complaint. Furthermore, we find that the topic in the notice for the Committee's November 4, 2013 meeting reading "Vote - Approval for permission to have the Dinosaur on school premises" provided the public with adequate notice of the subject matter to be discussed. The dinosaur project had been discussed during prior Committee meetings, and the selection, decoration, and installation of the dinosaur involved school children throughout the public school system in this town of approximately 6,200 residents. While additional detail about the discussion topic, such as the location of the "school premises" at issue, may have been helpful to the public, we find that the description of this topic was sufficient for members of the public to understand that the Committee would be continuing its discussion of the Dinosaurs Make Cents project. Ms. DePino's complaint also alleges that the Committee's visitor comment policy violates the law because it requires members of the public who wish to address the Committee to contact the Committee one week in advance of a scheduled meeting, while the Committee itself is required to post notice of a meeting only 48 hours in advance. Ms. DePino asserts generally that this policy was improperly used to prevent citizens from speaking on the dinosaur statue topic during the Committee's November 4, 2013 meeting, though she does not allege that any specific individual was denied an opportunity to speak. The Open Meeting Law does not require that public bodies allow public participation in any form. The law states that "[n]o person shall address a meeting of a public body without permission of the chair, and all persons shall, at the request of the chair, be silent." G.L. c. 30A, 20(f). The Committee chair therefore has discretion to decide whether or not to permit public comment during a meeting. See id It is not a violation of the law for a public body to vote on a topic without first taking comments from the public. See OML 2013-64; OML 2012-59; OML 2012-23. Furthermore, public bodies have discretion to formulate policies regarding the administration of public comment periods. While it strikes us as impractical that the Committee's "Visitor's Comments" policy requires members of the public to request time to address the Committee often before they know what topics the Committee plans to discuss, such a policy does not violate the law. Although public participation is within the chair's discretion, we encourage public bodies to allow for as much public participation as reasonably possible. See id. As a final matter, we note that the Open Meeting Law requires that the minutes of a public body's meetings include "the date, time and place, the members present or absent, a summary of the discussions on each subject, a list of documents and other exhibits used at the meeting, the decisions made and the actions taken at each meeting, including the record of all
3

Open Meeting Law determinations may be found at the Attorney General's website, www.mass.gov/ago/openmeeting.

votes." G.L. c. 30A, 22(a). When reviewing meeting minutes, our office considers whether the minutes contain enough detail and accuracy so that a member of the public who did not attend the meeting could read the minutes and have a clear understanding of what occurred. See OML 2011-55. Dr. Rodriguez's explanation during the Committee' November 4, 2013 meeting of what occurred during the December 3, 2012 and March 11, 2013 meetings was significantly more detailed than what appears in the minutes of those meetings. Key details, such as the fact that Ms. Humphries was present on December 3, 2012 "to inform the School Committee about the placement of the Dinosaur on School Property which would be the result of the fundraiser" and that the Committee made a recommendation regarding the issue, are not reflected in the brief summary of the discussion included in those minutes. Additionally, at the November 4, 2013 meeting. Dr. Rodriguez stated that a memo containing key details about the dinosaur project was distributed during the March 11, 2013 meeting. The minutes of that meeting do not reflect that such a memo was distributed, however, nor do they summarize any discussion of its contents. Finally, while it is clear that a video of the December 2012 meeting was viewed during the November 4, 2013 meeting, that also is not identified in the minutes as an exhibit used at the meeting. We remind the Committee that the Open Meeting Law requires that minutes include a sufficiently detailed summary of the discussion that occurred and a listing of all documents and exhibits used during the meeting.4 G.L. c. 30A, 22(a). CONCLUSION For the reasons stated above, we find that the Committee's November 4, 2013 meeting notice and public comment policy did not violate the Open Meeting Law. We now consider the complaint addressed by this determination to be resolved. Please feel free to contact the Division at (617) 963-2540 if you have any questions regarding this determination.

Amy L. Nable Assistant Attorney General Director, Division of Open Government cc; Granby School Committee Laurie A. DePino

This determination was issued pursuant to G.L. c. 30A, 23(c). A public body or any member of a body aggrieved by this order may obtain judicial review through an action filed in Superior Court pursuant to G.L. c. 30A, 23(d). The complaint must be filed in Superior Court within twenty-one days of receipt of this order.
4

For purposes of clarity, we recommend that public bodies include in their minutes a distinct list of the documents or exhibits used during the meeting, rather than rely on listings of or references to documents throughout the body of the minutes. OML 2014-12.