O'Sullivan v. School Committee

Nolan, J.

This case arises out of a decision by the school committee of Worcester to dismiss Walter Grocki from his tenured teaching position in the Worcester public school system. The plaintiffs, registered voters of the city of Worcester, brought a complaint in the Superior Court against the defendants (hereinafter referred to collectively as the school *124committee) alleging violations of the open meeting law, G. L. c. 39, §§ 23A-23C (1990 ed.). The judge allowed the school committee’s motion to dismiss or for summary judgment as to both counts of the plaintiffs’ complaint. The plaintiffs appealed from the dismissal of their complaint, which alleges that the school committee violated G. L. c. 39, § 23B, by excluding Grocki and his counsel from its deliberations regarding his dismissal. We transferred the case from the Appeals Court to this court on our own motion. We now affirm the judgment entered below.

There is essentially no dispute of facts. Grocki had been a tenured teacher employed by the Worcester public school system since September, 1966. In February, 1990, the school committee notified Grocki that a meeting would be held pursuant to G. L. c. 71, §§ 42, 42D (1990 ed.), to determine whether to dismiss, suspend, or discipline him. On March 29, 1990, the school committee held a public hearing on the matter. At the request of Grocki, the dismissal hearing was held in executive session pursuant to G. L. c. 39, § 23B (2).

During the hearing, Grocki was permitted to be represented by counsel, who presented evidence, cross-examined witnesses, and made a closing statement. The school administration was also given the opportunity to present its side of the case. At the close of the presentations, the superintendent of the Worcester public schools gave his recommendation that Grocki be dismissed as a teacher effective March 30; 1990.

The school committee adjourned to discuss the facts of the case outside of the presence of Grocki, his counsel, the superintendent, the school administration’s counsel, and all of the witnesses. Grocki’s objection to the exclusion of himself and counsel during the school committee’s deliberations was noted on the record. Almost one hour later, the school committee reconvened in executive session in the presence of those who previously had been in attendance, including Grocki and his counsel. At this time, the school committee voted to dismiss Grocki for an abuse of sick leave, insubordination, and misrepresentation. Shortly thereafter, in an open *125session, the school committee recorded its votes on the motions it considered while in executive session.

Meetings of municipal governmental bodies are governed by G. L. c. 39, §§ 23A-23C, the so-called “open meeting law.” General Laws c. 39, § 23B, states that “[a] 11 meetings of a governmental body shall be open to the public and any person shall be permitted to attend any meeting except as otherwise provided by this section.” The school committee of Worcester is concededly a “[governmental body.”3 Under the statute, the term “[m]eeting” includes “deliberations.”4

The open meeting law makes provisions for a governmental body to hold “executive sessions” from which certain persons may be barred.5 General Laws c. 39, § 23B, states that executive sessions may be held only for certain enumerated purposes. One of these purposes, set forth in G. L. c. 39, § 23B (2), is “[t]o consider the . . . dismissal of . . . a[n] . . . employee . . . .” Subsection (a) of § 23B (2) provides that, if such an executive session is held, the affected individual has the right “to be present at such executive session during discussions or considerations which involve that individual.” The deliberations at issue in this case clearly were “discussions or considerations” involving the teacher. The teacher was not allowed to be present at those deliberations. *126The plaintiffs contend, therefore, that the committee violated the statute.

The school committee counters that § 23B (2) (a) is inapplicable to this case because of a contrary provision contained in G. L. c. 71, § 42, the statute governing dismissal of public school teachers. That statute provides, in part, that no tenured teacher may 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 and at which he may be represented by counsel, present evidence and call witnesses to testify in his behalf and examine them” (emphasis supplied). The school committee asserts that this statute, by authorizing “private” hearings, grants it the authority to conduct deliberations without the teacher present.

The application of the open meeting law, particularly § 23B (2) (a), to other statutes is governed by G. L. c. 39, § 24, which states, “The provisions of this chapter shall be in force only so far as they are not inconsistent with the express provisions of any general or special law . . . .” Therefore, if § 23A is inconsistent with the express provisions of § 42, the latter statute would control.

In Kurlander v. School Comm. of Williamstown, 16 Mass. App. Ct. 350, 359-361 (1983), the Appeals Court was faced with a closely analogous problem. That court held that § 42’s language concerning a private hearing encompassed a private deliberation, and that, therefore, the open meeting law was inconsistent with the express provisions of § 42. We agree with the reasoning in Kurlander, and hold that, because § 42 authorizes private deliberations in regard to dismissal of tenured public school teachers, the contrary provisions of the open meeting law are inapplicable. The school board, consequently, did not violate G. L. c. 39, §§ 23A-23C, by excluding Grocki from their deliberations concerning his termination. The judgment of the Superior Court is affirmed.

So ordered.

General Laws c. 39, § 23A, defines “[governmental body” as “every board, commission, committee or subcommittee of any district, city, region or town, however elected, appointed or otherwise constituted, and the governing board of a local housing, redevelopment or similar authority; provided, however, that this definition shall not include a town meeting.”

General Laws c. 39, § 23A, defines “[m]eeting” as “any corporal convening and deliberation of a governmental body for which a quorum is required in order to make a decision at which any public business or public policy matter over which the governmental body has supervision, control, jurisdiction or advisory power is discussed or considered; but shall not include any on-site inspection of any project or program” (emphasis added). The same section defines “ [deliberation” as “a verbal exchange between a quorum of members of a governmental body attempting to arrive at a decision on any public business within its jurisdiction” (emphasis added).

General Laws c. 39, § 23A, defines “[ejxecutive session” as “any meeting of a governmental body which is closed to certain persons for deliberation on certain matters.”