One more Time ...

UPDATE ---- South Hadley case was decided in May, 2011 (see local news article here).  the key quote is

"Although (Judge) McDonald agreed that the Feb. 28, 2010 session violated the open meeting law, he wrote that he could not invalidate the contract vote because it fell outside the strict deadline for filing complaints."


Original Blog Entry:

This is the final entry concerning the wording of MGL 39-23.  There seems to be much confusion  over how a "nullified" meeting can produce a valid contract. 

The bottom line is that it appears a DA can declare a meeting invalid BUT that a complaint must be filed with the court within 21 days for a judge's order to void a contract.  It also says a judge MAY issue an order -- not "will", "shall", or "must".

An inquiry WAS submitted to the DA, but no complaint has EVER been filed with the court.

This is what the law says (see http://www.mass.gov/legis/laws/mgl/39-23b.htm)

"Upon proof of failure by any governmental body or by any member or officer thereof to carry out any of the provisions for public notice or meetings, for holding open meetings, or for maintaining public records thereof, any JUSTICE of the supreme judicial court or the superior court sitting within and for the county in which such governmental body acts shall issue an appropriate order requiring such governmental body or member or officer thereof to carry out such provisions at FUTURE meetings. Such order may be sought by complaint of three or more registered voters, by the attorney general, or by the district attorney of the county in which the city or town is located. The order of notice on the complaint shall be returnable no later than ten days after the filing thereof and the complaint shall be heard and determined on the return day or on such day thereafter as the court shall fix, having regard to the speediest possible determination of the cause consistent with the rights of the parties; provided, however, that orders with respect to any of the matters referred to in this section may be issued at any time on or after the filing of the complaint without notice when such order is necessary to fulfill the purposes of this section. In the hearing of such complaints the burden shall be on the respondent to show by a preponderance of the evidence that the action complained of in such complaint was in accordance with and authorized by section eleven A 1/2 of chapter thirty A, by section nine G of chapter thirty-four or by this section. All processes may be issued from the clerk's office in the county in which the action is brought and, except as aforesaid, shall be returnable as the court orders. 

Such order MAY invalidate any action taken at any meeting at which any provision of this section has been violated, PROVIDED that such complaint is filed within TWENTY-ONE days of the date when such action is made public."

Here's an almost identical case in South Hadley, where that Committee committed a flagrant violation of ch 39 when they extended their Superintendent's contract in an Executive Session:

The most important quotes are:

NORTHAMPTON - A judge said Tuesday the South Hadley School Committee may have committed a technical violation of the state's Open Meeting Law when it voted to extend Superintendent Gus Sayer's contract.

But Judge C. Brian McDonald said it was doubtful the possible violation would have any effect on the contract itself.

and ...

McDonald said Gelinas and O'Brien would have had to file their lawsuit within 21 days of that announcement for the secret votes to be nullified.