(dissenting). General Laws c. 39, § 23B (1990 ed.), provides that governmental bodies including school committees may hold executive sessions only for limited purposes, one of those purposes being, as here, to consider the discipline or dismissal of a public employee such as a teacher. Section 23B (2) also provides, however, that “[a] governmental body shall hold an open meeting if the individual involved requests that the meeting be open,” and that “[i]f an executive session is held, [as it was here,] such individual shall have the following rights: (a) to be present at such executive session during discussions or considerations which involve that individual[,] (6) to have counsel or a representative of his own choosing present and attending for the purpose of advising said individual and not for the purpose of active participation[, and] (c) to speak in his own behalf.” Clearly, the school committee violated c. 39, § 23B, by refusing the tenured teacher Grocki’s request that he and his counsel be present at the committee’s deliberations, held in executive session, regarding his dismissal. The only issue, then, is whether § 23B for some reason is inapplicable to this case. I say § 23B applies, and that the plaintiffs’ complaint should not have been dismissed.
The court says that § 23B does not apply because c. 39, § 24, provides that “the provisions of [c. 39] shall be in force only so far as they are not inconsistent with the express provisions of any general or special law,” and c. 39, § 23B, is inconsistent with the express provisions of G. L. c. 71, § 42 (1990 ed.). I have read § 42 carefully. I have been unable to find an express provision in that section that is inconsistent with the requirement in c. 39, § 23B, that, when a school committee deliberates in executive session considering the dismissal of a tenured teacher-, the teacher is entitled to be present, to have counsel present, and to speak.
The court, purporting to follow the Appeals Court’s decision in Kurlander v. School Comm. of Williamstown, 16 Mass. App. Ct. 350 (1983), concludes that “because § 42 authorizes private deliberations in regard to dismissal of tenured public school teachers, the contrary provisions of the *128open meeting law are inapplicable.” Ante at 126. But the court misses the point. Even if c. 71, § 42, and c. 39, § 23B, are inconsistent with respect to whether private deliberations are authorized in the circumstances of this case, as the Appeals Court held in Kurlander (a proposition with which I do not agree — but resolution of that issue is unnecessary for this case), the plaintiffs do not complain about the deliberations being private rather than public. Instead, they complain that Grocki was entitled to be present with his counsel at the private deliberations and to speak, and his requests in that regard were refused. The only question in this case is whether any provision in c. 71, § 42, is inconsistent with the requirement in c. 39, § 23B, that requests such as Grocki’s be honored. My answer is that there is no such provision in § 42, and I note that the court makes no attempt to point to one.
Chapter 71, § 42, states in relevant part as follows: “The school committee may dismiss any teacher .... [A tenured teacher] . . . 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 and at which he may be represented by counsel, present evidence and call witnesses to testify in his behalf and examine them.” Thus, even if the school committee’s deliberations after a hearing are controlled by c. 71, § 42, so that the deliberations may be private, § 42 clearly provides that whenever the school committee chooses to deliberate privately rather than publicly the teacher whose dismissal is being considered is entitled to be present, to have counsel present, and to speak. This is all that Grocki requested, and he was entitled both by c. 39, § 23B, and c. 71, § 42, to the honoring of that request. In that regard the two statutes are not expressly inconsistent. Indeed, they are virtually identical. Both statutes make clear the intent of the Legislature to protect tenured teachers — and the public — from a school committee’s dismissing a tenured teacher without adequate basis and without the teacher’s having an op*129portunity .to observe the deliberations culminating in his or her being fired.1
I would reverse the judgment of the Superior Court, and I would order reinstatement of the tenured teacher without loss of compensation, seniority, tenure, or other benefits. Reinstatement is necessary, it seems to me, to provide proper enforcement of both the open meeting law and G. L. c. 71, § 42.
I make no suggestion with respect to whether the dismissal in this case was warranted or unwarranted. I merely assert that the procedure mandated by the applicable statutes was not followed.