On Brookline

SELECTMEN’S ACCOUNTING FOR TOWN ADMINISTRATOR’S PERFORMANCE (continued)

By Arshag A. Mazmanian

While the Open Meeting Law and the Public Records Law each contribute to transparency in governance in Massachusetts, each Law is applied separately from the other.

The Public Records Law provides 16 exemptions from the definition of “public records” in General Laws Chapter 4, Section 7, clause 26, including the following which may appear to apply to the Selectmen’s evaluations of the Town Administrator discussed in Part 2 of this series:

“(c) personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which my constitute an unwarranted invasion of personal privacy;”

The decision in the case of Worcester Telegram & Gazette vs. Chief of Police of Worcester and the City of Worcester, 58 Mass. App. Ct. 1 (2003) includes an extensive discussion of this exemption as applied to the personnel file of a Worcester police officer who was the subject of discipline (at pages 5 and 6):

“While exempting ‘personnel [file] or information’ from the broad definition of ‘public record,’ the statute does not define ‘personnel [file] or information.’ Decisions suggest that the term is neither rigid nor precise and that the determination is case-specific. ‘While the precise contours of the legislative term “personnel [file] or information” may require case-by-case articulation, it includes, at a minimum, employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion or termination information pertaining to a particular employee. These constitute the core categories of personnel information that are “useful in making employment decisions regarding an employee.”

It would distort the plain statutory language to conclude that disciplinary reports are anything but “personnel [file] or information.”’ [Citation omitted.] The custodian’s designation of materials as ‘personnel [file] or information’ is not dispositive of the point any more than the custodian’s placement of the material in a repository called a ‘personnel file.’ [Citation omitted.] (‘Material within the “personnel [file] or information” category is not limited to, nor does it extend to, all “files or information” that are located physically in an individual employee’s personnel file.’) ‘There is no “blanket exemption” to public disclosure for records kept by police departments or for investigatory materials.’ [Citation omitted.] ‘What is critical is the nature or character of the documents, not their label.’ [Citation omitted.]”

[Aside: Those following Arthur Conquest’s issues with the Town arising out of the Town Hall incident of May 24, 2007 should find the Worcester Telegram case most interesting as it relates to the BPD internal affairs report and public records.]

At first blush it would seem that the Selectmen’s evaluations of the Town Administrator pursuant to Section XI of the Employment Contract once placed in his personnel file would have the benefit of the cited exemption from public records. But the role of the Town Administrator as the Chief Administrative Officer of the Town would seem to be uniquely different from most, if not all, Town employees. The provisions of Section XI seem rather uniquely designed in the Town Administrator’s Employment Contract in stating that the evaluations will not be public documents as well as providing for their placement in his personnel file. Why go into such detail in the Employment Contract if routinely for a public employee in MA evaluations of the employee’s work are “at a minimum … information pertaining to a particular employee” that become part of such employee’s “personnel [file] or information”? Was this merely adding a belt and suspenders to an existing exemption? Or is there more than meets the eye requiring a “case-by-case articulation” of the Selectmen’s evaluations of the Town Administrator?

The term of the Town Administrator’s current Employment Contract executed 1/31/06 is for three-years, 7/1/06 – 6/30/09. Since its approval by the Board, there have been several changes in the membership of the Board, to wit, Betsy DeWitt (May, 2006), Jesse Mermell (May, 2007) and Dick Benka (May, 2008). Shouldn’t these new Board members have the benefit of evaluations by the Board during earlier years of the current term when they take their turns in evaluating Town Administrator’s performance, even though evaluations preceding their membership on the Board are part of his personnel file?

As discussed in Part 2 of this series, the Selectmen are required by Section XI of the Employment Contract to meet, presumably in compliance with the Open Meeting Law, to address evaluation of the performance of the Town Administrator regarding the final year of his current term. Assuming that the Selectmen can function as such only at duly called and held meetings in compliance with the Open Meeting Law, the public in attendance should get some idea of the Selectmen’s evaluations of the Town Administrator, unless the Selectmen claim and can justify going into Executive Session. Perhaps a newer member may urge fellow Selectmen to engage in a more open discussion in evaluating the performance of the Town Administrator in the final year of his current Contract.

(Note: Part 2B will further address the impact of the disparities between the Public Records Law and the Open Meeting Law concerning the Selectmen’s evaluations of the Town Administrator upon their accounting for his performance, including issues that might be addressed by the Selectmen in considering a new contract if the Town Administrator is to be reappointed when his current term expires.)