Employee evaluations, the Open Meeting Law, and the Public Records Statutes are frequent areas of inquiry. What can be discussed in executive session? When are evaluations public records? Does the confidentiality of a compiled evaluation depend on who does the compiling? The Division of Open Government recently issued guidance to answer these questions.
The Open Meeting Law requires that evaluations of professional competence be discussed in open session. M.G.L. c.30A, §21. In the statute’s list of proper purposes for executive sessions, Purpose 1 provides that reputation, character, physical condition, or mental health of an employee may be discussed in executive session, but not the employee’s professional competence. The line can be hard to draw in practice, however, given that opinions about one’s character can have an important impact on the evaluation of professional performance. The guidance acknowledges that professional competence can be discussed under Purpose 1 when it is “directly related” to the discussion of a person’s reputation or character.
The Open Meeting Law Purpose 2 permits discussion in executive session of contract negotiations with non-union personnel and strategy sessions in preparation for such negotiations. Again, the Division of Open Government recognizes that there can be overlap between the discussion of professional competence and negotiations for the individual’s contract; so, the guidance permits consideration of personnel evaluations as part of the deliberations concerning strategy and negotiations.
May a board or committee keep personnel evaluations confidential? A common practice is for individual members of the board or committee to create confidential evaluations, which may then be compiled into a master or aggregated evaluation that is made public. There has been confusion, however, over whether the aggregation may be done by a member of the public body. The guidance states that the “best practice” is to have someone who is not a member of the public body do the aggregation but, if that is not possible, then one member may aggregate all evaluations. Any evaluations, whether aggregated or individual, are public records if they are used in an open session or used in the preparation of meeting minutes.
Finally, how may the aggregated evaluation be circulated to board members for discussion? The guidance notes that the Supreme Judicial Court, in Boelter v. Wayland Board of Selectmen, 479 Mass. 233 (2018), endorsed two methods for circulating the aggregated evaluation to a quorum of the board or committee: (1) by posting it on the Town website available to all members of the public but only if paper copies are also available at the Town Clerk’s office; or (2) by distributing it during the meeting. The Division of Open Government cautions that it has not opined on the propriety of posting before the meeting and therefore cautions public bodies from relying on that method.