Home LOREN F. GHIGLIONE & others vs. SCHOOL COMMITTEE OF SOUTHBRIDGE.

376 Mass. 70

February 15, 1978 - July 21, 1978

Worcester County

Present: HENNESSEY, C.J., QUIRICO, KAPLAN, WILKINS, & ABRAMS, JJ.

A grievance hearing conducted by a school committee pursuant to a collective bargaining agreement may be closed to the public as an executive session authorized by G. L. c. 39, Section 23B. [73-74]

CIVIL ACTION commenced in the Superior Court on December 28, 1977.

The case was heard by Morse, J.

After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

Michael J. Morrill (Paul Lamarine with him) for the plaintiffs.

Matthew R. McCann (James F. Cosgrove with him) for the defendant.

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

Jeffrey M. Freedman for Massachusetts Teachers Association & Southbridge Education Association, amici curiae, submitted a brief.


ABRAMS, J. The plaintiffs, three registered voters of the town of Southbridge, challenge the action of the defendant school committee of Southbridge (school committee)

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in conducting a grievance hearing in closed session as a violation of the open meeting law, G. L. c. 39, Sections 23A-23C. [Note 1]

The school committee conducted a regularly scheduled meeting on December 21, 1976. The meeting was completed and adjourned. The chairperson [Note 2] of the school committee then announced that the committee would take up the matter of a teacher's grievance relating to the denial of the teacher's request for a sabbatical leave. [Note 3] The grievance was not on the agenda for the regular meeting.

A closed hearing was held to consider the teacher's claim; the teacher had requested and the collective bargaining agreement with the Southbridge Education Association required that the grievance be considered in closed session. [Note 4] A citizen attempted to sit in and listen to the grievance hearing; he was forcibly removed from the hearing.

The plaintiffs commenced an action in the Superior Court. They alleged that the school committee, by holding

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the grievance hearing in closed session, had failed to comply with the open meeting requirements of G. L. c. 39, Section 23B. They asked that the defendant be compelled to disclose publicly the minutes of the grievance hearing and to conform to the provisions of G. L. c. 39, Section 23B, at future meetings. [Note 5] After a hearing on agreed facts, the judge ruled that the grievance hearing conducted by the school committee pursuant to its collective bargaining agreement was not subject to the provisions of the open meeting law. The plaintiffs appealed to the Appeals Court from the judgment denying their claim for injunctive relief. We granted the plaintiffs' application for direct appellate review. We affirm the judgment.

As it applies to meetings of municipal school committees, the open meeting law is found in G. L. c. 39, Sections 23A-23C. [Note 6] Section 23B establishes the general mandate that all meetings of a governmental body must be open to the public unless otherwise provided by this statute.

The open meeting law is designed to eliminate much of the secrecy surrounding the deliberations and decisions on which public policy is based. Public officials, however, might be unduly hampered in the performance of their duties if all gatherings of members of included governmental

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bodies must be open to the public. Thus, one feature of the act, the provision for executive sessions, permits closed sessions in certain circumstances. Executive sessions may be held only for the purposes expressly set forth in Section 23B, one of which is "to conduct collective bargaining sessions." The governmental body may call an executive session and close the meeting to the public if (a) it has first convened in an open session for which notice has been given, (b) a majority of the members formally votes to go into executive session, (c) the presiding officer announces the purpose for such session, and (d) prior to the closed session, the presiding officer states whether the body will reconvene after the executive session. G. L. c. 39, Section 23B.

We need not decide whether grievance hearings pursuant to collective bargaining agreements are to be deemed "meetings" governed by the open meeting law since such hearings can be conducted in closed sessions under G. L. c. 39, Section 23B, which authorizes executive sessions "to conduct collective bargaining sessions." Collective bargaining sessions encompass not only the negotiations leading to the agreement, but also the resolution of grievances pursuant to the collective bargaining agreement. As the Supreme Court said in United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581 (1960): "The processing of disputes through the grievance machinery is actually a vehicle by which meaning and content are given to the collective bargaining agreement .... The grievance procedure is, in other words, a part of the continuous collective bargaining process."

Executive sessions of governmental body subject to the open meeting law must be held in accordance with specific statutory procedures. Contrary to these statutory requirements for executive sessions, the school committee did not convene the hearing in open session for which notice had been given and did not enter into executive

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session by a recorded majority vote. [Note 7] In the context of this case, however, the procedural deficiencies were de minimis. [Note 8]

We hold that a grievance hearing conducted by the school committee pursuant to a collective bargaining agreement may be closed to the public.

Judgment affirmed.


FOOTNOTES

[Note 1] The Massachusetts Newspaper Publishers Association has filed an amicus curiae brief on behalf of the plaintiffs. The Massachusetts Teachers Association and the Southbridge Education Association have filed a brief on behalf of the defendant school committee.

[Note 2] The official title as disclosed by the record.

[Note 3] One month earlier, at an open session of the school committee's regular meeting, the committee had denied the teacher's application for the sabbatical leave. Subsequent developments concerning this teacher's grievance are considered in School Comm. of Southbridge v. Brown, 375 Mass. 502 (1978).

[Note 4] The collective bargaining agreement, in effect for the period from July 1, 1976, through June 30, 1979, includes a four level grievance procedure culminating in final and binding arbitration. The hearing involved in this case was at level three of the grievance process. Article V, paragraph 3, of the collective bargaining agreement provides: "If the grievance is not resolved satisfactorily within ten (10) school days after submission at level 2, the grievance may be presented in writing to the School Committee within ten (10) school days thereafter. This grievance will be placed on the agenda of the next regular School Committee meeting on which occasion the School Committee, the grievant, the Association President, and Chairman of the P. R. & R. Committee [Professional Rights and Responsibilities Committee of the Southbridge Education Association] will meet in effort to resolve the grievance. This hearing will be conducted in closed session."

[Note 5] Prior to the hearing before the Superior Court the minutes of the grievance hearing were made public. However, the underlying dispute between the plaintiffs and the school committee over the alleged violation of the open meeting law remains unresolved, and the merits of plaintiffs' claim for injunctive relief, a claim which is specifically authorized by G. L. c. 39, Section 23B, have not been finally determined. Moreover, the public interest in deciding this case of first impression under the open meeting law, as recently revised, weighs against treating this case as not presenting a live controversy. See Geehan v. Trawler Arlington, Inc., 371 Mass. 815 , 817 (1977); Karchmar v. Worcester, 364 Mass. 124 , 136 (1973). See also United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953). Cf. Cole v. Chief of Police of Fall River, 312 Mass. 523 , 525-526 (1942), appeal dismissed sub nom. Cole v. Violette, 319 U.S. 581 (1943). We, therefore, reach the merits of the parties' contentions.

[Note 6] Open meeting requirements for State and county boards and commissions are set forth in G. L. c. 30A, Sections 11A-11A1/2, and c. 34, Sections 9F-9G

[Note 7] We need not decide whether a vote not to hold a closed executive session would constitute an unfair labor practice. See Ashland Educators Ass'n & Ashland School Comm., 4 M.L.C. 1251 (Sept. 1, 1977).

[Note 8] The plaintiffs also argue that the school committee, by not placing the grievance on the agenda of the school committee's regularly scheduled meeting, failed to observe the requirements of the contract. The plaintiffs are not proper parties to raise this issue.