MAUREEN O'SULLIVAN & others [Note 1] vs. SCHOOL COMMITTEE OF WORCESTER & another. [Note 2]

NOLAN, J. This case arises out of a decision by the school committee of Worcester to dismiss Walter Grocki from his tenured teaching position in the Worcester public school system. The plaintiffs, registered voters of the city of Worcester, brought a complaint in the Superior Court against the defendants (hereinafter referred to collectively as the school

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committee) alleging violations of the open meeting law, G. L. c. 39, Sections 23A-23C (1990 ed.). The judge allowed the school committee's motion to dismiss or for summary judgment as to both counts of the plaintiffs' complaint. The plaintiffs appealed from the dismissal of their complaint, which alleges that the school committee violated G. L. c. 39, Section 23B, by excluding Grocki and his counsel from its deliberations regarding his dismissal. We transferred the case from the Appeals Court to this court on our own motion. We now affirm the judgment entered below.

There is essentially no dispute of facts. Grocki had been a tenured teacher employed by the Worcester public school system since September, 1966. In February, 1990, the school committee notified Grocki that a meeting would be held pursuant to G. L. c. 71, Sections 42, 42D (1990 ed.), to determine whether to dismiss, suspend, or discipline him. On March 29, 1990, the school committee held a public hearing on the matter. At the request of Grocki, the dismissal hearing was held in executive session pursuant to G. L. c. 39, Section 23B (2).

During the hearing, Grocki was permitted to be represented by counsel, who presented evidence, cross-examined witnesses, and made a closing statement. The school administration was also given the opportunity to present its side of the case. At the close of the presentations, the superintendent of the Worcester public schools gave his recommendation that Grocki be dismissed as a teacher effective March 30, 1990.

The school committee adjourned to discuss the facts of the case outside of the presence of Grocki, his counsel, the superintendent, the school administration's counsel, and all of the witnesses. Grocki's objection to the exclusion of himself and counsel during the school committee's deliberations was noted on the record. Almost one hour later, the school committee reconvened in executive session in the presence of those who previously had been in attendance, including Grocki and his counsel. At this time, the school committee voted to dismiss Grocki for an abuse of sick leave, insubordination, and misrepresentation. Shortly thereafter, in an open

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session, the school committee recorded its votes on the motions it considered while in executive session.

Meetings of municipal governmental bodies are governed by G. L. c. 39, Sections 23A-23C, the so-called "open meeting law." General Laws c. 39, Section 23B, states that "[a]ll meetings of a governmental body shall be open to the public and any person shall be permitted to attend any meeting except as otherwise provided by this section." The school committee of Worcester is concededly a "[g]overnmental body." [Note 3] Under the statute, the term "[m]eeting" includes "deliberations." [Note 4]

The open meeting law makes provisions for a governmental body to hold "executive sessions" from which certain persons may be barred. [Note 5] General Laws c. 39, Section 23B, states that executive sessions may be held only for certain enumerated purposes. One of these purposes, set forth in G. L. c. 39, Section 23B (2), is "[t]o consider the . . . dismissal of . . . a[n] . . . employee . . . ." Subsection (a) of Section 23B (2) provides that, if such an executive session is held, the affected individual has the right "to be present at such executive session during discussions or considerations which involve that individual." The deliberations at issue in this case clearly were "discussions or considerations" involving the teacher. The teacher was not allowed to be present at those deliberations.

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The plaintiffs contend, therefore, that the committee violated the statute.

The school committee counters that Section 23B (2) (a) is inapplicable to this case because of a contrary provision contained in G. L. c. 71, Section 42, the statute governing dismissal of public school teachers. That statute provides, in part, that no tenured teacher may be dismissed "unless, if he so requests, he has been given a hearing before the school committee which may be either public or private at the discretion of the school committee and at which he may be represented by counsel, present evidence and call witnesses to testify in his behalf and examine them" (emphasis supplied). The school committee asserts that this statute, by authorizing "private" hearings, grants it the authority to conduct deliberations without the teacher present.

The application of the open meeting law, particularly Section 23B (2) (a), to other statutes is governed by G. L. c. 39, Section 24, which states, "The provisions of this chapter shall be in force only so far as they are not inconsistent with the express provisions of any general or special law . . . ." Therefore, if Section 23A is inconsistent with the express provisions of Section 42, the latter statute would control.

In Kurlander v. School Comm. of Williamstown, 16 Mass. App. Ct. 350, 359-361 (1983), the Appeals Court was faced with a closely analogous problem. That court held that Section 42's language concerning a private hearing encompassed a private deliberation, and that, therefore, the open meeting law was inconsistent with the express provisions of Section 42. We agree with the reasoning in Kurlander, and hold that, because Section 42 authorizes private deliberations in regard to dismissal of tenured public school teachers, the contrary provisions of the open meeting law are inapplicable. The school board, consequently, did not violate G. L. c. 39, Sections 23A-23C, by excluding Grocki from their deliberations concerning his termination. The judgment of the Superior Court is affirmed.

So ordered.

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O'CONNOR, J. (dissenting). General Laws c. 39, Section 23B (1990 ed.), provides that governmental bodies including school committees may hold executive sessions only for limited purposes, one of those purposes being, as here, to consider the discipline or dismissal of a public employee such as a teacher. Section 23B (2) also provides, however, that "[a] governmental body shall hold an open meeting if the individual involved requests that the meeting be open," and that "[i]f an executive session is held, [as it was here,] such individual shall have the following rights: (a) to be present at such executive session during discussions or considerations which involve that individual[,] (b) to have counsel or a representative of his own choosing present and attending for the purpose of advising said individual and not for the purpose of active participation[, and] (c) to speak in his own behalf." Clearly, the school committee violated c. 39, Section 23B, by refusing the tenured teacher Grocki's request that he and his counsel be present at the committee's deliberations, held in executive session, regarding his dismissal. The only issue, then, is whether Section 23B for some reason is inapplicable to this case. I say Section 23B applies, and that the plaintiffs' complaint should not have been dismissed.

The court says that Section 23B does not apply because c. 39, Section 24, provides that "the provisions of [c. 39] shall be in force only so far as they are not inconsistent with the express provisions of any general or special law," and c. 39, Section 23B, is inconsistent with the express provisions of G. L. c. 71, Section 42 (1990 ed.). I have read Section 42 carefully. I have been unable to find an express provision in that section that is inconsistent with the requirement in c. 39, Section 23B, that, when a school committee deliberates in executive session considering the dismissal of a tenured teacher, the teacher is entitled to be present, to have counsel present, and to speak.

The court, purporting to follow the Appeals Court's decision in Kurlander v. School Comm. of Williamstown, 16 Mass. App. Ct. 350 (1983), concludes that "because Section 42 authorizes private deliberations in regard to dismissal of tenured public school teachers, the contrary provisions of the

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open meeting law are inapplicable." Ante at 126. But the court misses the point. Even if c. 71, Section 42, and c. 39, Section 23B, are inconsistent with respect to whether private deliberations are authorized in the circumstances of this case, as the Appeals Court held in Kurlander (a proposition with which I do not agree -- but resolution of that issue is unnecessary for this case), the plaintiffs do not complain about the deliberations being private rather than public. Instead, they complain that Grocki was entitled to be present with his counsel at the private deliberations and to speak, and his requests in that regard were refused. The only question in this case is whether any provision in c. 71, Section 42, is inconsistent with the requirement in c. 39, Section 23B, that requests such as Grocki's be honored. My answer is that there is no such provision in Section 42, and I note that the court makes no attempt to point to one.

Chapter 71, Section 42, states in relevant part as follows: "The school committee may dismiss any teacher . . . . [A tenured teacher] . . . shall not be dismissed . . . unless, if he so requests, he has been given a hearing before the school committee which may be either public or private at the discretion of the school committee and at which he may be represented by counsel, present evidence and call witnesses to testify in his behalf and examine them." Thus, even if the school committee's deliberations after a hearing are controlled by c. 71, Section 42, so that the deliberations may be private, Section 42 clearly provides that whenever the school committee chooses to deliberate privately rather than publicly the teacher whose dismissal is being considered is entitled to be present, to have counsel present, and to speak. This is all that Grocki requested, and he was entitled both by c. 39, Section 23B, and c. 71, Section 42, to the honoring of that request. In that regard the two statutes are not expressly inconsistent. Indeed, they are virtually identical. Both statutes make clear the intent of the Legislature to protect tenured teachers -- and the public -- from a school committee's dismissing a tenured teacher without adequate basis and without the teacher's having an opportunity

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to observe the deliberations culminating in his or her being fired. [Note Dissent-1]

I would reverse the judgment of the Superior Court, and I would order reinstatement of the tenured teacher without loss of compensation, seniority, tenure, or other benefits. Reinstatement is necessary, it seems to me, to provide proper enforcement of both the open meeting law and G. L. c. 71, Section 42.