17 Mass. App. Ct. 433

January 6, 1984 - January 24, 1984

Norfolk County

Present: GRANT, BROWN, & KASS, JJ.

A subcommittee of a town's conservation commission making factual investigations and reporting its findings and recommendations to the full commission was required by G. L. c. 39, Section 23B, to hold open meetings, to give notice of its meetings, and to maintain accurate records thereof. [434-436]

CIVIL ACTION commenced in the Superior Court Department on November 1, 1982.

The case was heard by Linscott, J.

Bernard W. Fang for the plaintiffs.

Joseph H. Malloy, Town Counsel, for the defendant.

James C. Heigham, for Massachusetts Newspaper Publishers Association, amicus curiae, submitted a brief.

GRANT, J. As the result of a concession made by counsel for the plaintiffs at the argument, the only questions remaining for decision on this appeal are the narrow ones of whether a three-member subcommittee of the seven-member conservation commission (G. L. c. 40, Section 8C) of the town of Canton is required by the first, sixth and seventh paragraphs, respectively, of G. L. c. 39, Section 23B (as most recently amended by St. 1980, c. 220, Section 3), to hold open meetings, to give notice of its meetings, and to maintain accurate records thereof. [Note 1] A judge of the Superior Court thought not and entered judgment accordingly. The plaintiffs, who are three registered voters of the town (see Section 23B, eleventh par.), have appealed.

Page 434

The portions of the record which relate to these questions are sketchy, but it appears that the subcommittee in question is concerned in some way with the implementation or the enforcement of the so called conservation easement which the town of Canton owns in the Prowse Farm and which was considered in Knowles v. Codex Corp., 12 Mass. App. Ct. 493, 495-496, 499 (1981). [Note 2] According to the chairman of the commission, whose testimony the trial judge appears to have regarded as credible, the subcommittee's jurisdiction extends to making factual investigations, reporting its findings to the full commission, and making verbal recommendations as to actions which should be taken by the commission. Nothing more appears as to the functions or duties of the subcommittee. There is no dispute that the subcommittee has not in the past complied with the notice and records requirements of the sixth and seventh paragraphs of Section 23B.

The answers to our questions turn on the proper construction of the definitions of the terms "Deliberation," "Governmental body" and "Meeting" which are set out in G. L. c. 39, Section 23A, as most recently amended by St. 1978, c. 372, Section 9, and particularly on the proper construction of the word "decision" as employed in the first and third of those definitions. We start with the definition of "Governmental body" and find that it includes "every board, commission, committee or subcommittee of any . . . city . . . or town, however elected, appointed or otherwise constituted" (emphasis supplied). As there is no such legal entity as a "subcommittee of [a] . . . city . . . or town," the only way to avoid stripping "subcommittee" of all meaning in its present context is to read "Governmental body" to include a "subcommittee of any board, commission or committee of any city or town." [Note 3] So far there is no real dispute among the parties.

Their positions diverge when it comes to the proper construction of the terms "Deliberation" and "Meeting." The

Page 435

former is defined as "a verbal exchange between a quorum [Note 4] of members of a governmental body attempting to arrive at a decision on any public business within its jurisdiction" (emphasis supplied). The latter is defined as "any corporal convening and deliberation of a governmental body for which a quorum is required in order to make a decision at which any public business . . . over which the governmental body has jurisdiction . . . is discussed or considered . . ." (emphasis supplied). [Note 5]

As we have already noted, the "jurisdiction" of the subcommittee extends to making factual investigations and reporting its findings and making recommendations to the full commission. Except in the unlikely event that the members constituting the statutory quorum conduct their exchanges of ideas by convening and then pushing notes to each other across the table, they cannot perform their intended functions without engaging in what a layman would regard as deliberation at a meeting.

All of which brings us to the meaning of the word "decision" as it is employed in the definitions of "Deliberation" and "Meeting." The judge based his conclusion as to the nonapplicability of the sixth and seventh paragraphs of G. L. c. 39, Section 23B, on the following reasoning: "The subcommittee here is involved only in the process of making educated recommendations to the full [commission]. Final decision[s] upon whatever alternatives are suggested by the subcommittee are deliberated by the full [commission]. The subcommittee in this case makes no governmental decisions. Its recommendations are considered in open session by the parent body." We think it too clear for discussion that a

Page 436

three-member subcommittee cannot make a decision which the law entrusts to a seven-member commission (see G. L. c. 4, Section 6, Fifth), and we have no quarrel with the distinction between a recommendation which the subcommittee can make and a decision which can only be made by the requisite majority of the full commission.

We think, however, that the judge's reasoning and the commission's arguments fail to come to grips with the actual language of the definitions of "Deliberation" and "Meeting." Once we accept the proposition that a subcommittee is one form of "[g]overnmental body" and then reread the other relevant definitions, it is readily apparent that the Legislature contemplated that a subcommittee itself can "arrive at a decision" (definition of "Deliberation") or "make a decision" (definition of "Meeting") on any matter which the parent body can and does entrust to the subcommittee.

Comes now the question whether the particular subcommittee in this case is making "decisions" within the meaning of the statutory definitions. We think it axiomatic that any report of facts which the subcommittee may make to the full commission after conducting whatever investigation may be appropriate in the circumstances is necessarily grounded on one or more decisions as to what the facts are. And, of course, the subcommittee cannot formulate a recommendation without deciding what it should be.

Accordingly, the judgment is reversed, and in accordance with the provisions of the eleventh paragraph of G. L. c. 39, Section 23B, a new judgment is to enter which orders the members of the subcommittee to comply in the future with the applicable requirements of the first, sixth and seventh paragraphs of that section whenever the subcommittee engages in making findings of fact which are to be reported to the commission or in formulating recommendations to the commission. Costs of appeal are not to be awarded to any party.

So ordered.


[Note 1] See also G. L. c. 66, Sections 5A (as appearing in St. 1964, c. 323, Section 2) and 17C (as appearing in St. 1976, c. 397, Section 7).

[Note 2] See also MacKeen v. Canton, 379 Mass. 514 (1980).

[Note 3] This construction is consistent with the statutory history of the word "subcommittee." See St. 1960, c. 437, Section 3; St. 1975, c. 303, Section 3.

[Note 4] The term "Quorum" is also defined in G. L. c. 39, Section 23A. Consistent with that definition, the parties in their briefs have proceeded on the assumption that there would be no statutory quorum unless at least two of the three members of the subcommittee are present and participate.

[Note 5] This definition concludes by providing that a "[m]eeting" "shall not include any on-site inspection of any project or program." Some of the difficulty in this case appears to have stemmed from the commission's or the subcommittee's failure to distinguish between the latter's on-site inspections and its subsequent formulation of findings and recommendations.