LOWELL — Both the School Committee and the City Council were found to be in violation of requirements of the commonwealth’s Open Meeting Law. The three complaints were filed by Laura Ortiz, of Lowell.
In the first determination dated July 15, 2024, Assistant Attorney General Kerry Anne Kilcoyne found that the School Committee failed to post sufficiently specific meeting notices for regular and executive session meetings, failed to create sufficient meeting minutes and failed to properly respond to an Open Meeting Law complaint.
“We take this opportunity to advise the [School Committee] Board of the Attorney General’s recommendations as to best practices for drafting meeting minutes,” Kilcoyne wrote. “In particular, when summarizing discussions, we encourage public bodies to include dissenting or minority opinions wherever possible.”
The Attorney General’s Office ordered the committee’s immediate and future compliance with the Open Meeting Law, ordered a revision of approval of the Oct. 18, 2023 meeting minutes within 30 days of the date of the office’s correspondence, and cautioned the body that a determination by the office of a similar violation in the future would be considered “evidence of intent to violate the Open Meeting Law.”
Two determinations dated Sept. 20, 2024 found that both bodies failed to certify receipt of Open Meeting Law materials within two weeks of appointment, as required by the law.
“The certification,” Assistant Attorney General Matt Lindberg wrote, “shall be evidence that the member of the public body has read and understands the requirements of the open meeting law and the consequences of violating it.”
The requirement for compliance with provisions of the OML certification resides with the elected representatives, and Lindberg noted his concern that the council was unaware of widespread failure to certify receipt of education materials.
“We encourage the Council to take this opportunity to recommit itself to strict compliance with the Open Meeting Law,” he wrote.
The Open Meeting Law was enacted to eliminate much of the secrecy surrounding the deliberations and decisions on which public policy is based.
Part of the certification process includes providing members of both bodies with any Open Meeting Law determinations issued to the public body within the last five years by the AG’s office. A review of the OML Determination Lookup page for the years 2019 to 2023 found only two other complaints, neither of which touched on the issues raised by Ortiz in her 2024 filings.
Several of the discussion sections of both Kilcoyne and Lindberg’s determination letters clarified OML responsibilities independent of Ortiz’s complaints, such as public participation.
“The Open Meeting Law does not require that a public body allow public participation,” Kilcoyne wrote, “but rather gives the chair of the public body discretion to decide whether to permit public comment during a meeting.”
She noted that the Attorney’s General’s Office did, however, encourage public bodies to allow for as much public participation as “time and circumstances permit,” and footnotes to her finding added that content-based restrictions on public comment may violate the portion of the Massachusetts Declaration of Rights protecting the right to assembly and free speech.
On the issue of executive session, Kilcoyne wrote that the law does not require that public body members keep topics discussed in executive session confidential nor does it impose penalties for members’ failure to do so, while cautioning that, “We express no opinion as to whether other laws may require public body members to maintain the confidentiality of such session.”
Unlike meetings that are open to the public, executive sessions are closed discussions that provide members the opportunity to meet privately over matters that may have detrimental effect on 10 permissible purposes including bargaining, litigation or personnel information not suitable for an open forum. Public bodies are required to publicly announce the reasons for and the date of executive session meetings.
An Oct. 26, 2022 OML determination, in response to a complaint also filed by Ortiz, found that the council failed to timely respond to a request for executive session meeting minutes and failed to release executive session meeting minutes to the public once the purpose of the executive session had ended.
Assistant Attorney General Carrie Benedon wrote that when the purpose for a valid executive session has been served, the minutes and any documents or exhibits used at the session that aren’t protected by attorney-client privilege or Public Records Law must be disclosed.
Even in the absence of a specific request for the minutes, “Public bodies have an obligation to review the minutes of executive sessions at reasonable intervals to decide if continued non-discloser of minutes is warranted,” Benedon wrote.
She stated that although the OML does not define reasonable intervals, the AG’s office “have found that quarterly reviews or reviews every six months satisfy the law.”
Selected minutes from 15 City Council executive session meetings held between February 2022 and June 2023 were released in two tranches to the public following a motion made by Councilor Erik Gitschier in August 2023.
No subsequent minutes have been released.
The Attorney General’s Office recently released its findings relating to two Open Meeting Law complaints filed earlier this year against the City Council regarding its response to the criminal charges against fellow Councilor Corey Robinson.
The City Council meets in the second-floor chambers of City Hall, 375 Merrimack St. on Tuesdays at 6:30 p.m. To speak at a meeting, contact City Clerk Michael Geary before 4 p.m. the day of the meeting at 978-674-4161 or mgeary@lowellma.gov.