'Open Meeting Law does not restrict an individual's right to make comments
to the general public.'
The School Committee has prevailed after a complainant from Arlington said the public board violated the state's Open Meeting Law while using two Facebook groups.
In a Dec. 19 letter to Town Counsel Doug Heim, Kerry Anne Kilcoyne, assistant attorney general, state Division of Open Government, dismissed the complaint brought by Stephen Harrington earlier this year. He wrote that committee members Jennifer Susse, Kirsi Allison-Ampe and Paul Schlichtman posted comments pertaining to school-enrollment issues and renovation of Arlington schools on two Facebook groups -- Arlington School Enrollment Parent Group and Arlington Resist.
The state found "no evidence that any member of the Committee posted comments about topics related to Committee business to the Arlington Resist."
As to the enrollment group, the letter said "individual Committee members posted comments pertaining to school enrollment issues and renovation of certain Arlington schools" to that group. "While the posts related to Committee business, we find no evidence that the posts involved communication directed to a quorum of the Committee, or that Committee members responded to the posts of other members.
"The Open Meeting Law does not restrict an individual's right to make comments to the general public."
What a quorum is
The School Committee has seven members. A quorum is four members. For a violation to occur, those four would have to deliberate about an issue; that is, discuss it toward reaching some conclusion. The state's letter said that was not the case.
Kilcoyne wrote that her office received a complaint from Harrington on March 15. It was originally filed with the School Committee on Feb. 10. The complaint alleges that a quorum of the committee deliberated outside of a meeting via Facebook.
"We appreciate the patience of the parties while we reviewed this matter," she wrote. In finding no evidence of a violation, the state agency reviewed the original complaint, the committee's response, the complaint requesting further review, open-session minutes from committee meetings held between September 2016 and January 2017, as well as Facebook posts provided by Harrington.
The state agency also spoke with Heim by telephone March 17 and with Harrington on Dec. 12.
Among the facts Kilcoyne reported were these: The enrollment group was formed in November 2015 by Arlington parents to inform the community about the challenges posed by the growing student enrollment and to advocate for sensible solutions to address them. This Facebook group, which is open to the public, has more than 1,300 members.
Arlington Resist was formed in February 2017 by concerned citizens who aimed to turn their dissatisfaction with the federal government into informed action. The group has more than 250 members, including four School Committee members. This Facebook group is not open to the public and is for members only.
Details of state discussion
Kilcoyne provided the following discussion:
The Open Meeting Law was enacted "to eliminate much of the secrecy surrounding deliberation and decisions on which public policy is based." Ghiglione v. School Board of Southbridge, 376 Mass. 70, 72 (1978). The Open Meeting Law requires that meetings of a pubic 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 other procedural meeting [sic] or the distribution of reports or documents that may be discussed at a meeting, provided than no opinion of a member is expressed." Id. For the purposes of the Open Meeting Law, a "quorum" is a simple majority of the members of a public body.
The complaint alleges that a quorum of the committee are members of Facebook groups "that discusses school committee business." We find no evidence that a quorum of the Committee violated the Open Meeting Law by deliberating via Facebook. Where a quorum of the members of a public body are also members of a Facebook group, that is not in and of itself a violation of the Open Meeting Law.
However, if a member of the committee were to communicate directly with a quorum of the committee over social media platforms such as Facebook, such communication may violate the Open Meeting Law. We find no evidence that Committee members communicated with a quorum of the Committee on the Arlington Resist Facebook page.
However, individual committee members posted comments pertaining to school enrollment issues and renovation of certain Arlington schools to the Arlington School Enrollment Parent Group Facebook page. While the posts related to committee business, we find no evidence that the posts involved communication directed to a quorum of the committee, or that committee members responded to the posts of other members. The Open Meeting Law does not restrict an individual's right to make comments to the general public.
No broad audits
The complainant suggests that there are other numerous communications and posts by and between committee members on the Arlington School Enrollment Parent Group Facebook page, and likely on the closed Arlington Resist Facebook page that should be investigated. We do not conduct broad audits of a public body and thus limit our review to the evidence presented to us in the complaint.
Nevertheless, members of public bodies must be careful not to engage in deliberation with other members of the same public body over social media platforms. Recognizing that it may be difficult to determine whether communication constitutes deliberation under the Open Meeting Law, our office cautions public bodies on the use of Facebook and other social media.
For the reasons stated above, we find no evidence that the Committee violated the Open Meeting Law by deliberating outside of a meeting. 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 our office at 617-963-2540 if you have any questions regarding this letter.
Harrington has been asked to comment.
Read the full text here >> (see browse OML determination and search for Arlington, at OML 2017-192)
This news summary was published Sunday, Dec. 31, 2017.
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