Andres Navedo
XXXXXXXXXX
Foxborough, MA 02035

August 21, 2010

Mr. Jonathan Sclarsic
Assistant Attorney General
Division of Open Government
One Ashburton Place
Boston, MA 02108

Dear Mr. Sclarsic:

Thank you for your work on behalf of the Commonwealth of Massachusetts and for the decision on OML 2011-28.

As stated in an open letter from Mr. Bruce Gardner (Attachment 1), Chairman of the Foxborough School Committee, the Committee has scheduled for August 29, 2011 a training session on the Open Meeting Law (Attachment 2). This training was ordered as part of the remedy to the Open Meeting Law violation found in OML 2011-28.

The Foxborough School Committee’s notification for a special meeting of the Committee on August 29 stated that Mr. Glenn Koocher, Executive Director of the Massachusetts Association of School Committees (MASC), would conduct this training workshop.

Mr. Koocher and the MASC have been consulted previously by the Foxborough School Committee in matters of Open Meeting Law, and they have come into prominence in at least two issues: the failure to disclose public information and the diminishing content of minutes. We are concerned that previous guidance offered by the MASC and Mr. Koocher has resulted in, or failed to prevent, Open Meeting Law violations. It is reasonable to expect that more of the same training would not yield an improvement in compliance with the law by essentially the same Committee members.

We would like to review some of the history of the Committee and Mr. Koocher on these issues that are central to the OML 2011-28 decision.

Failure to Release Public Information
In the spring of 2007, the Foxborough School Committee was searching for a new superintendent. Ms. Martha Slattery, then School Committee Chairman and Search Committee Co-Chair, informed the public of the progress in the search process:

"Ms. Slattery updated the Committee on the progress of the Superintendent search. A search committee was formed consisting of 13 people. There has been a minimal charge of approximately $1,700 from MASC for the brochure that was developed and mailed out. There is another meeting scheduled for March 22, 2007 at which time the Committee will go into executive session to review applications. After personal interviews are completed and the semi-finalists chosen, the names will become public. Ms. Adair reviewed the time line and let people know that there was an on-line survey available for input. Ms. Lord reminded everyone that the executive session was necessary to provide privacy, as the applicant materials are confidential at this point. Ms. Adair reiterated the need for privacy of the names of applicants." (Emphasis added.) Foxborough School Committee, Regular Meeting Minutes, March 19, 2007 (Attachment 3).

The Committee stated a commitment to make public the names of the semi-finalists in accordance with the Open Meeting Law in effect at the time. However, by April 4, Ms. Slattery refused to honor the commitment and to comply with the Open Meeting Law by refusing to identify the lone finalist.

"Foxboro School Committee members violated at least the spirit of the state’s open meeting law by refusing to identify the school superintendent finalist to a reporter earlier this week, a Boston media lawyer said Thursday.

A screening committee voted to recommend the board appoint Christopher Martes as superintendent, which school officials did Thursday night.

However, school board Chairwoman Martha Slattery, who co-chaired the screening committee, refused to release Martes’ name to a Sun Chronicle reporter on Wednesday." (Emphasis added.) Michael Gelbwasser, Lawyer: Board violated spirit of open meeting law, The Sun Chronicle, April 6, 2007 (Attachment 4).

At the first School Committee meeting after the published complaints, the Committee addressed the issue towards the end of the meeting in Other Matters:

"Ms. Slattery referenced an article in the Sun Chronicle in which the search committee was accused of violating the Open Meeting Law. Ms. Slattery stated that the search committee met with Mr. Glenn Koocher of the Massachusetts Association of School Committees (MASC) who walked them through the search process. Mr. Koocher advised the search committee to go into executive session to protect the privacy of each candidate. Ms. Slattery also stated that a reporter wanted to talk with a School Committee member "off the record." Ms. Slattery stated that nothing should be "off the record" and she hopes it won’t happen again. Ms. Adair stated that Mr. Koocher’s recommendation was followed, in which he made it clear that the search committee could not release any information." (Emphasis added.) Foxborough School Committee, Regular Meeting Minutes, April 9, 2007 (Attachment 5).

Mr. Koocher’s qualifications not withstanding, the record shows that the close and prolonged guidance that Mr. Koocher and the MASC have provided to the Foxborough School Committee has failed to result in the Committee’s compliance with the Open Meeting Law. This is not to imply either character flaw or lack of professional competence on Mr. Koocher.

We see a drawback in the way this system is set up. The public has placed its trust in the faithful integrity of the school committee. As a result, the school committee has gained superiority and influence over the public. A similar fiduciary relationship exists between the school committees and the MASC. Mr. Koocher, as an officer of the MASC, has an obligation to the school committees and to act in the best interests of the committees. However, Mr. Koocher is not a public official and his obligation is not to look after the best interests of the public.

Lack of Content of School Committee Meeting Minutes
During the November 27, 2006, School Committee meeting,

"Ms. Slattery discussed sample minutes obtained at the recent MASC/MASS Joint Conference. The sample minutes were reviewed, noting what was to be included or not in minutes according to Robert’s Rules of Order. Ms. Slattery announced that Cable will be re-broadcasting School Committee minutes (sic) several times during the week for people to review." (Emphasis added.) Foxborough School Committee, Regular Meeting Minutes, November 27, 2006 (Attachment 6).

Using their interpretation of the MASC’s provided sample minutes (Attachment 7), the Committee promoted a culture of producing minutes with progressively less information and detail.

There is additional evidence that the School Committee intended to minimize minutes despite explicit guidance. During years 2007 and 2008, there were several complaints of Open Meeting Law violations in the town of Foxborough. The Norfolk County District Attorney validated some of the complaints. The level of discussion in Town grew and the Town Clerk invited the District Attorney to lead a workshop on the Open Meeting Law. This workshop took place on November 18, 2008 and it was attended by a majority of the School Committee.

The response of the School Committee was stated during their first meeting following the workshop. The minutes of the December 1, 2008, School Committee meeting stated:

"The Committee discussed the release of executive session minutes as presented during a meeting scheduled by the Town Clerk and presented by the District Attorney’s office on the Open Meeting Law. Executive session minutes need a vote of approval and a vote to release the minutes. Dr. Martes referred to the FPS policy BEDG and information from the Massachusetts Association of School Committees (MASC), noting that most minutes are a brief summary of the meeting and all official actions. The Committee discussed how the minutes will be done in a more abbreviated form." (Emphasis added.) Foxborough School Committee, Regular Meeting Minutes, December 1, 2008 (Attachment 8).

This emphasis on producing minutes with minimal information has also been a point of discussion for the Board of Selectmen.

"Selectman Larry Harrington has suggested the board cut back the volume of detail retained in the minutes, just as the School Committee did when he served on that board.

When reviewing draft minutes for final approval in recent years, school board members at times spent considerable meeting time going over debate details recorded in the draft.

Harrington on May 26 argued that with copies of the meetings available on Foxboro Cable Access video, and given the many other duties selectmen have, it’s unnecessary to produce a blow-by-blow written summary of the board’s debate on issues.

The Massachusetts Public Records law requires recording when and where a public meeting was held, which board members were present, and the votes taken.

Harrington said some detail on board debate is still appropriate at times, but the board should not be burdened with fact-checking pages of minutes taken at every meeting." (Emphasis added.) Frank Mortimer, Change in minutes opposed, The Foxboro Reporter, June 18, 2009 (Attachment 9).

The minutes of the June 21, 2010 executive session, which you have ordered the Committee to create and release and "which should include a summary of the discussion," are just one example of the result of this culture of producing token minutes.

The Concerns
The secrecy of the Foxborough School Committee, during the hiring of Superintendent Martes and during the renewal of his contract in June 2010, have prevented the public’s vetting, participation, and becoming informed of the rationale of their elected officials. It is of particular relevance in our situation given that Dr. Martes is a Foxborough native, a graduate of Foxborough High School, and a former employee of the Foxborough Public Schools. In Foxborough, Dr. Martes progressed from teacher to interim principal before departing.

Additionally, the proposed August 29 workshop is scheduled in a manner that reduces the public’s access to information in matters of public concern.

The workshop is scheduled for a room adjacent to the usual School Committee meeting room. This proposed room is not equipped with built in video cameras for local cablecast. There are other spaces in Town that are appropriately equipped to facilitate recording and cablecasting.

Moreover, the School Committee meetings are usually convened on Mondays at 7:00 p.m. The 6:00 p.m. start on a normal meeting night can be confusing.

Possible Solutions
The Town Clerks of Wrentham, Plainville, and Norfolk set an example that could prove more productive for Foxborough. On March 15, 2007, they sponsored a public forum where then Assistant Attorney General Robert Ritchie guided the attendees in an in-depth discussion of the Open Meeting Law.

If the Media Center is not available due to the ongoing High School Renovation Project, the meeting could be held at a different location in Town, including the Public Safety Building, where the 2008 Open Meeting Law Workshop was held. Foxboro Cable Access video recorded the 2008 workshop and made it available to the public subsequently. Perhaps the Open Meeting Law workshop could be held later in the year and still within the 90-day requirement stated in the OML 2011-28 decision.

Conclusion
The Open Meeting Law has figured prominently in our community in recent years. All of the current members of the School Committee have been in office for more than a year and therefore subject to the 2002 Massachusetts General Law (Chapter 71, Section 36A) requiring at least eight hours of orientation concerning their responsibilities, including the Open Meeting Law.

One of our School Committee members was the state’s first committee member to achieve advanced status in school leadership training by the MASC, including matters of Open Meeting Law (Attachment 10). However, this did not help guide the Committee to comply with the Open Meeting Law.

Mr. Glenn Koocher, Executive Director of the MASC, has facilitated and guided various Foxborough School Committee activities in the past. Yet his guidance has not prevented the School Committee from violating the Open Meeting Law.

The public’s interest would be better served if another person, whose primary duty was to the public’s interest, conducted the workshop discussion.

We would further suggest that the workshop be held in a location where video recording and transmission is practical and that the content be broadly available to other elected officials and the public in general.

It would be reasonable to expect that elected officials may find it easier to comply with the Open Meeting Law when they know that the vigilant public is knowledgeable about the law.

The Committee could use this opportunity to begin the journey towards a more open and transparent service to the community.

Very respectfully,

Andres Navedo

CC: Mr. Bruce Gardner, Chair, Foxborough School Committee (via email)

Attachments:
1. Gardner, B. (August 4, 2011) Guest Column: School chairman writes open letter to community. The Foxboro Reporter.
2. Foxborough School Committee. Special Meeting Notification for August 29, 2011: School Committee Workshop - Open Meeting Law.
3. Foxborough School Committee. (March 19, 2007) Regular Meeting Minutes.
4. Gelbwasser, M. (April 6, 2007) Lawyer: Board violated spirit of open meeting law. The Sun Chronicle.
5. Foxborough School Committee. (April 9, 2007) Regular Meeting Minutes.
6. Foxborough School Committee. (November 27, 2006) Regular Meeting Minutes.
7. Massachusetts Association of School Committees sample minutes discussed at the November 27, 2006, Foxborough School Committee meeting.
8. Foxborough School Committee. (December 1, 2008) Regular Meeting Minutes.
9. Mortimer, F. (June 18, 2009) Change in minutes opposed. The Foxboro Reporter.
10. No Byline. (May 5, 2005) Lord completes advanced school leadership training. The Foxboro Reporter.