Nov. 6: Committee, Bodie meet at retreat; reporter is urged not to stay

The first retreat, Nov. 5, was advertised as a public meeting, and a reporter showed up to write about the proceedings, but Evans said he would not facilitate the retreat if a reporter present, and so the reporter left.

The second retreat was posted as a public meeting before Christmas, and YourArlington inquired about whether a reporter could attend. School Committee Chair Denise Burns said she expected Evans would again decline to facilitate if a reporter were present.

She wrote Dec. 24: "The mediator will not work with us if there are reporters or anyone else there. So it should not have been posted as a public meeting.

"I'll let Karen [Fitzgerald, committee secretary] know - [Town Counsel] Juliana Rice said she believes there is a way to post it where it is not. We are not making any decisions on behalf of the town at the meeting rather just working on the way the committee operates and I would think it would be in the best interest of everyone in town for the committee to improve there."

On Dec. 30, the committee secretary issued a new public-meeting notice, which now called the retreat an executive (closed) session. The posting noted the session's purpose: "To meet or confer with a mediator with respect to public business."

The state Open Meeting Law lists the occasions when the press and public may be excluded from a meeting. Guidelines to that law published by Gerald T. Leone Jr., Middlesex County district attorney, provide the list (see pp. 24 and following), paraphrased below. 

Only exception No. 9 appears to apply in this case: "To meet or confer with a mediator, as defined in Section 23C, Ch. 233, with respect to any litigation or any public business ...."

But is Evans, who was described earlier as a "facilitator," actually a "mediator"?

Chapter 233, Section 23C, of Mass. General Laws defines a mediator:

"For the purposes of this section a 'mediator' shall mean a person not a party to a dispute who enters into a written agreement with the parties to assist them in resolving their disputes and has completed at least thirty hours of training in mediation and who either has four years of professional experience as a mediator or is accountable to a dispute resolution organization which has been in existence for at least three years or one who has been appointed to mediate by a judicial or governmental body."

Evans was asked via e-mail Jan. 3 whether he is a mediator under the law's definition. On Jan 8, he responded:

"Thanks for your message. I'm just back from being away at schools out of town and am just now able to reply. I'm not aware of how the School Committee session has been presented. It might be best to check with Kathy Bodie about this. Best wishes.

YourArlington followed up, asking Evans to address the question about whether he is a mediator, and he has not responded.

In a telephone interview Jan. 8, Bodie said she had talked with Rice, the town counsel, about how to post the retreat -- is it a public meeting or isn't it? She said she and Rice were working with what appeared to a "gray area" in the state's Open Meeting Law.

As the interim superintendent talked, a third meeting notice about the retreat came via e-mail from the School Committee secretary and under Burns's authority. This one said it was "cancelling" the previous posting.

Bodie explained: "Now the meeting is not regarded as coming under the state's Open Meeting Law," because, she said, there will be "no deliberation" of public matters, but will focus on "board relationships, how we work as a cohesive body," not on public policy or the budget.

She noted that, in November, Evans had "preferred not to have a reporter present."

At the same time, she said the private nature of the occasion, both in November and this month, was clear when Burns told the public recently that "we would be going into a therapy session."

As to posting, she said the school administration was "not sure how to do it," admitting that those involved should have done more homework in advance.

As to Evans, Bodie said she knows that he is trained as a psychologist but did not know whether he is a mediator under the state law.

Susan Mazzarella, the schools' chief financial officer, wrote in an e-mail Jan. 8 that the administration has received a human relations service invoice dated Dec. 27, 2008, for a School Committee retreat and planning. The bill is for four hours at $185 an hour, or $740. 

This invoice will be paid on our next warrant, she wrote, as anticipated fiscal 2009 expenses.

The 9 exemptions

The nine exemptions under the state Open meeting Law under which a meeting may be closed to the public:

1.) Discuss the reputation of an individual.

2.) Consider discipline or hear complaints against individual.

3.) Discuss collective-bargaining strategy.

4.) Discuss deployment of security personnel or devices.

5.) Investigate charge of criminal misconduct.

6.) Discuss real-estate transactions.

7.) To comply with the provisions of any general to special law or federal grant-in-aid requirements.

8.) To consider and review applicants for employment.

9.) To meet or confer with a mediator, as defined in Section 23C, Ch. 233, with respect to any litigation or any public business ...

which says:

Chapter 233: Section 23C. Work product of mediator confidential; confidential communications; exception; mediator defined

Section 23C. All memoranda, and other work product prepared by a mediator and a mediator’s case files shall be confidential and not subject to disclosure in any judicial or administrative proceeding involving any of the parties to any mediation to which such materials apply. Any communication made in the course of and relating to the subject matter of any mediation and which is made in the presence of such mediator by any participant, mediator or other person shall be a confidential communication and not subject to disclosure in any judicial or administrative proceeding; provided, however, that the provisions of this section shall not apply to the mediation of labor disputes.

For the purposes of this section a “mediator” shall mean a person not a party to a dispute who enters into a written agreement with the parties to assist them in resolving their disputes and has completed at least thirty hours of training in mediation and who either has four years of professional experience as a mediator or is accountable to a dispute resolution organization which has been in existence for at least three years or one who has been appointed to mediate by a judicial or governmental body.

3rd meeting posting

Third meeting posting, dated Jan. 8, 2009:

Please Post

NOTICE OF MEETING
ARLINGTON, MASSACHUSETTS

In accordance with the provisions of the Massachusetts General Laws, Chapter 39, Section 23B notice is hereby given of a meeting of the:

The meeting as posted is cancelled. The School Committee will not be meeting for the purpose of discussing or considering any public business or public policy matter within its jurisdictions.

THE ARLINGTON SCHOOL COMMITTEE /SUPERINTENDENT RETREAT

MONDAY, JANUARY 12, 2009
5:30 - 8:30 p.m.

*WHITTEMORE ROBBINS HOUSE

EXECUTIVE SESSION
To meet or confer with a mediator with respect to public business

*Unless noted
Meetings held at Arlington High School
School Committee Room – Sixth Floor

By Denise Burns, Chair, Arlington School Committee