Is Open-Meeting Violation Complaint Against School Committee Valid?

On July 31, 2023, Marblehead resident Cathyann Swindlehurst forwarded to Marblehead Beacon the Open Meeting Law Complaint Form she had filed with the Massachusetts Office of the Attorney General. 

In describing the alleged violation, Swindlehurst writes, “I believe the Marblehead School Committee violated the Massachusetts Open Meeting Law when it decided, outside of the public view, to consider exercising the termination for convenience clause in the current Superintendent’s employment agreement.”

The reference to a “termination for convenience clause” appears to refer to section 12.2 of Superintendent John Buckey’s amended employment contract, effective beginning July 1, 2021, which provides for an “early termination provision.” The description reads in part that “the Committee may terminate this Employment AGREEMENT and the Superintendent’s employment at any time on or prior to December 31, 2024 without cause” and goes on to describe provisions including providing 100 days’ notice and a payment of $94,350. 

Swindlehurst’s complaint notes that the School Committee did not reference any potential reconsideration of the Superintendent’s status in the public meetings held on June 29 or July 6, 2023, and that Marbleheaders were therefore left “frustrated, confused, and feeling misled” when the School Committee announced a meeting to be held on July 21st to discuss what she refers to as “the executive-session for bargaining strategy agenda.” 

Massachusetts General Law Chapter 30A provides very specific guidelines for the circumstances under which a School Committee is permitted to meet in executive session – meaning that the public is not present. In this case, the applicable reason provided was “to conduct strategy sessions in preparation for negotiations with nonunion personnel.” This text was included in the agenda published by the School Committee on July 18, along with a reference to “(Superintendent).” The Commonwealth of Massachusetts website provides a link to a video explaining the procedure and provisions for a public body to enter executive session. 

School Committee Chair Sarah Fox, responding to Marblehead Beacon’s inquiries about the open meeting law complaint, stated that “we drafted every single meeting with our attorney and also reached out to the Secretary of State twice during this process.” She continued, “our attorney has been present every step of the way, and we have done nothing without her guidance.” The Marblehead School Committee is represented by Colby Brunt, an attorney with Stoneman, Chandler & Miller LLP. 

The complaint filed by Swindlehurst goes on to note, “Given that the Chair appointed an Interim Superintendent apparently the board has terminated our existing Superintendent. We can’t know for sure – because all of this is happening in the dark and behind the scenes.”

Asked to respond specifically to this aspect of the allegation, Fox replied, “I did not appoint an interim; I clarified a notification of acting superintendent which is the same as a designee. That happens whenever a superintendent is not working, whether that be for a planned vacation or any leave.” Earlier today, August 1, 2023, Fox told Marblehead Beacon that, “the superintendent has not been terminated.”

The open meeting complaint also notes a concern that the discussion to enter executive session should always be made in a public meeting. While acknowledging that “the strategy discussions themselves are private,” the complaint specifies that “there was no public discussion, vote, or agenda item in the two meetings (6/29/2023 and 7/6/2023) of the new board which would have signaled to voters that the newly elected School Committee had chosen to re-open consideration of the Superintendent’s status.”

During the July 6th public School Committee meeting, the need for an executive session was discussed with regard to the release of a report about potential bullying within the soccer program at Marblehead High School. During an earlier School Committee meeting, prior to the election of new board members, a slide was presented showing a list of Freedom of Information Act (FOIA) requests, including one referencing the investigation of the girls’ soccer coach. 

Fox noted that the School Committee had requested to see that report, and that “the recommendation of counsel was that we book an executive session where counsel will be there. The concern that has been brought forth…was whether there was a lag time on bringing this through the chain of command and when the investigation was started.” At that time, Buckey asked for a point of clarification with regard to whether the executive session would be about the FOIA request. “It would be around the process of the investigation,” Fox replied, further noting that “since that FOIA request went up on the screen parents have reached out… with concern about the time period. After explaining that to counsel, this is the recommendation we were advised to take.” When Buckey asked whether other staff members involved in the investigation should be included in that meeting, Fox replied, “No. They are not under our purview.”

When Buckey asked what exemption would be used to justify the executive session, Fox replied that she thought the attorney had specified exemption one, which states: “to discuss the reputation, character, physical condition or mental health, rather than professional competence, of an individual, or to discuss the discipline or dismissal of, or complaints or charges brought against, a public officer, employee, staff member or individual.”

When the executive session was actually posted and scheduled for July 21st, it referenced exemption number two, as quoted above, rather than number one.

The School Committee met in executive session again yesterday, July 31, 2023, at 9:30 a.m., once again with the agenda specifying “strategy sessions in preparation for negotiations with nonunion personnel (Superintendent).” Fox told Marblehead Beacon that a proposal had been received by the School Committee as of 9:08 a.m. today, and they are "working with parties now toward an amicable resolution."

Editor’s note: School Committee member Jenn Schaeffner is a Marblehead Beacon founder and editor. She is recusing herself from any issues surrounding School Committee coverage.