On Brookline

PART 2: SELECTMEN’S ACCOUNTING FOR TOWN ADMINISTRATOR’S PERFORMANCE

By Arshag A. Mazmanian

How do Brookline’s Selectmen account for the performance of the Town Administrator as the Town’s Chief Administrative Officer of his functions and duties noted in Part 1 of this series?

The Town’s Employment Contract with the Town Administrator for the term 7/1/06 – 6/30/09 [link to Contract] provides in “Section VI Annual Review of Salary, Benefits and Expenses:”

“”Prior to the start of each anniversary year during which this contract is in effect, the Board and Town Administrator shall meet, at least forty (45) days prior to the anniversary date of this contract, for the purpose of reviewing the Town Administrator’s salary, benefits and expenses.”

Such a meeting should have been held sometime prior to May 16, 2008, for the final contract year 7/1/08 – 6/30/09. However, a review of the Selectmen’s Calendars for Board meetings for April and May of this year do not disclose an item for such meeting, including by means of Executive Session (assuming there was an available exemption under the Open Meeting Law). Is it possible that such a meeting was held before April, well prior to the May 6, 2008 elections which brought a newly elected Selectman to the Board?

I am not aware that a Selectman has the authority to act singly or other than pursuant to a duly called and held Board meeting in compliance with the Open Meeting Law (which may, pursuant to certain specified exemptions, be conducted in Executive Session).

Did the Board and the Town Administrator meet as prescribed in Section VI for the third and final year of the current Employment Contract? If not, why not, as such a meeting seems to be required under the Employment Contract. If such meeting was held, when and where, and was it held in compliance with the Open Meeting Law, including the maintenance of minutes? (Perhaps the Selectmen and the Town Administrator “waived” the requirement for this meeting because of the then pending override, recognizing the dour financial circumstances of the Town.)

“Section XI Annual Review of Goals & Objectives” of the Employment Contract provides, inter alia:

“Written evaluations [by the Selectmen] shall not be a public document unless marked as an exhibit in a public hearing held in accordance with Section VII. They shall be kept in the Town Administrator’s personnel file in the Personnel Department of the Town of Brookline.”

It should be noted that Section XI appears to be somewhat distinct from Section VI; the latter does not include a non-public document provision; and the former would call for a meeting of the Board “at least once each contract year,” in the case of the final year between 7/1/08 and 6/30/09, whereas the meeting of the Board with the Town Administrator pursuant to Section VI should have been held before May 16, 2008 as earlier noted. Section VI ‘s review deals with the Town Administrator’s “salary, benefits and expenses” whereas Section XI’s review deals with an evaluation and assessment by the Board of the Town Administrator’s performance.

This suggests two (2) separate meetings by the Board, the Section VI meeting with the Town Administrator and the Section XI meeting at which the Town Administrator may not necessarily be present.

Assuming the Open Meeting Law would be applicable to each of these meetings, minutes would be required to be maintained (including for Executive Sessions if an exemption applies). [See note below.] Since the final year of the Town Administrator’s term, i.e., 7/1/08 – 6/30/09 has not commenced as yet, the Section XI Board meeting has yet to be held for that year. The distinctions between Sections VI and XI may be unfortunate, especially since the Section VI review for salary, benefits and expenses may have some relation to evaluations by the Board of the Town Administrator’s performance, which evaluations would be required at a separate meeting of the Board sometime between 7/1/08 and 6/30/09. (One would hope that such evaluations would be made closer to 7/1/08 than to 6/30/09.)

So, assuming the Section VI meeting between the Board and the Town Administrator was held prior to May 16, 2008, the Open Meeting Law should have applied, including the preparation of minutes; and such minutes should be available to the public unless there was a duly called Executive Session pursuant to a designated exception under the Open Meeting Law (keeping in mind that Section VI does not include a non-public document provision).

With regard to the Section XI meeting of the Board for the final contract year (7/1/08 – 6/30/09), whenever that may be, unless Article VII is triggered, the evaluations will not, under the terms of Section XI, be available to the public. But the Open Meeting Law should apply to such meeting when it is held and minutes required to be maintained (including if an exemption applies for Executive Session). The question then arises, assuming that an Executive Session exemption does not apply, whether the Town can, by its Contract with the Town Administrator, in effect override the Open Meeting Law without violating public policy. And even if there would be no public policy violation, would it be good policy on the part of the Town to treat the Board’s evaluations as non-public documents?

(Note: Presumably the Board held meetings and made evaluations for the first two contract years of the Town Administrator’s performance pursuant to Section XI, treated as non public documents. Such evaluations might have been of interest to Brookline voters for the May 6, 2008 elections.)

The ultimate question is, how can Brookline residents be assured that our Selectmen have duly and truly accounted for the Town Administrator’s performance if the Boards evaluations rendered pursuant to Section XI are not available to the public? Is the best we can expect of our Selectmen a their variation of President George W. Bush’s approval of FEMA Director of Administration Michael Brown after Hurricane Katrina in September, 2005: “Dickie, you’re doing a heck of a job!”

This is something for Brookline taxpayers to ponder when the override property tax bills come due.

NOTE: I believe that the MA Open Meeting Law applies to Board meetings pursuant to Sections VI and XI of the Employment Contract and that none of the nine (9) exceptions for Executive Session apply. Part 2A will explore whether the MA Public Records Law provides an exemption for evaluations pursuant to Section XI of the Employment Contract.