Posts tagged "Board"

Vilbon v. Board of Registration in Nursing (Lawyers Weekly No. 10-065-18)

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NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

SJC-12359

CARLINE VILBON  vs.  BOARD OF REGISTRATION IN NURSING.

April 18, 2018.

Board of Registration in Nursing.  Nurse.  License.  Moot Question.  Supreme Judicial Court, Superintendence of inferior courts.

Carline Vilbon appeals from a judgment of the county court dismissing as moot her appeal under G. L. c. 112, § 64, from an order of the Board of Registration in Nursing (board) indefinitely suspending her nursing license.  The grounds for the suspension were that Vilbon had not satisfied the educational requirements for licensure in Massachusetts and that she had engaged in deceptive conduct to obtain a license.  While the matter was pending before the single justice, the board reconsidered and withdrew its finding that Vilbon had engaged in deceptive conduct, acknowledging that it had erred in making this finding.  In addition, Vilbon remedied the deficiencies in her education.  The board therefore reinstated her license.  Vilbon now argues that, despite the reinstatement of her license, she has suffered further harm for which the board should compensate her and that sanctions should be imposed on the executive director of the board.  However, under the “plain and unambiguous language of G. L. c. 112, § 64,” Hoffer v. Board of Reg. in Medicine, 461 Mass. 451, 456 (2012), our authority is limited to “revising or reversing the decision of the board” suspending her license.  The statute does not provide for any further relief.  As Vilbon has received all the relief that is available under G. L. c. 112, § 64, the single justice properly dismissed the matter as moot.  See Padmanabhan v. Centers for Medicare & Medicaid Servs., 476 Mass. 1018, 1019 (2017), citing Rasten v. Northeastern Univ., 432 Mass. 1003, 1003 (2000). read more

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Posted by Massachusetts Legal Resources - April 18, 2018 at 7:50 pm

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Boelter, et al. v. Board of Selectmen of Wayland (Lawyers Weekly No. 10-050-18)

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Posted by Massachusetts Legal Resources - April 5, 2018 at 5:00 pm

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Bruno, et al. v. Zoning Board of Appeals of Tisbury, et al. (Lawyers Weekly No. 11-032-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

17-P-174                                        Appeals Court

WILLIAM A. BRUNO, trustee,[1] & another[2]  vs.  ZONING BOARD OF APPEALS OF TISBURY & others.[3]

No. 17-P-174.

Suffolk.     November 9, 2017. – March 19, 2018.

Present:  Meade, Shin, & Ditkoff, JJ.

Subdivision Control, Approval not required, Zoning requirements.  Zoning, Enforcement, Nonconforming use or structure.  Practice, Civil, Summary judgment, Zoning appeal, Statute of limitations.  Limitations, Statute of. read more

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Posted by Massachusetts Legal Resources - March 20, 2018 at 12:17 am

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Public Employee Retirement Administration Commission v. Contributory Retirement Appeal Board, et al. (Lawyers Weekly No. 10-027-18)

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Posted by Massachusetts Legal Resources - February 13, 2018 at 9:00 pm

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Roma, III, Ltd. v. Board of Appeals of Rockport (Lawyers Weekly No. 10-002-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

SJC-12278

ROMA, III, LTD.  vs.  BOARD OF APPEALS OF ROCKPORT.

Suffolk.     September 6, 2017. – January 8, 2018.

Present:  Gants, C.J., Lenk, Gaziano, Budd, Cypher, & Kafker, JJ.

Municipal Corporations, By-laws and ordinances.  Zoning, Validity of by-law or ordinance, Private landing area.  Federal Preemption.

Civil action commenced in the Land Court Department on March 12, 2015.

The case was heard by Robert B. Foster, J., on motions for summary judgment.

The Supreme Judicial Court granted an application for direct appellate review. read more

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Posted by Massachusetts Legal Resources - January 9, 2018 at 4:37 pm

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Board of Selectmen of the Town of Hull, et al. v. Healey (Lawyers Weekly No. 09-054-17)

1
COMMONWEALTH OF MASSACHUSETTS
PLYMOUTH, ss. SUPERIOR COURT
CIVIL ACTION
NO. 15-00161
BOARD OF SELECTMEN OF THE TOWN OF HULL & THE TOWN MANAGER OF
THE TOWN OF HULL
vs.
MAURA HEALEY, ATTORNEY GENERAL
MEMORANDUM OF DECISION AND ORDER
ON CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS
In this action, plaintiffs Board of Selectmen of the Board of Hull and the Board Manager
of the Board of Hull (collectively “the Board”) seek certiorari review under G. L. c. 249, §4, of a
decision made by defendant Attorney General, Maura Healey (“the Attorney General”) that the
Board violated Opening Meeting Law, G. L. c. 30A, §21(b)(3), by failing to publicly identify
unions in collective bargaining disputes and a claimant in a matter in civil litigation prior to
entering executive session to discuss strategy with respect to these matters.
Before the Court are cross-motions for judgment on the pleadings. The Board seeks an
order reversing the Attorney General’s decision and for declaratory relief, and the Attorney
General seeks affirmation of her determination.
In consideration of the parties’ memoranda of law and oral arguments, and for the
reasons that follow, the Board’s motion for judgment on the pleadings is ALLOWED, the
Attorney General’s cross-motion for judgment on the pleadings is DENIED, the Attorney
General’s order that the Board amend its minutes reflecting the meetings in dispute is
VACATED, and this matter is REMANDED to the Attorney General for further review
consistent with this decision. The Town’s motion for further declaratory relief is DENIED.
2
FACTS
Claims for judicial review of administrative agency proceedings are resolved through
motions for judgment on the pleadings under Mass. R. Civ. P. 12(c). See Massachusetts
Superior Court Standing Order 1-96, §4. The Court’s “review shall be confined to the record.”
Id. at §5. “Such record ‘shall consist of … the entire proceedings.’” Id. at §2, quoting G. L. c.
30A, §14.
The record in this case, and the relevant law, show the following.
Plaintiff Board is a public body, and plaintiff Town Manager of the Town of Hull is the
Chief Administrative Officer of the Town of Hull. Defendant Maura Healey is the Attorney
General of the Commonwealth of Massachusetts.
The Open Meeting Law, G. L. c. 30A, §§18-25 (“OML”), requires that, “[e]xcept as
provided in section 21, all meetings of a public body shall be open to the public.” G.L. c. 30A,
§20(a). Section 21 of the OML allows “[a] public body [to] meet in executive session” for an
enumerated purpose, which includes “[t]o discuss strategy with respect to collective bargaining
or litigation if an open meeting may have a detrimental effect on the bargaining or litigating
position of the public body and the chair so declares.” G. L. c. 30A, §21(a)(3). To meet in such
an executive session, in addition to declaration from the chair, the public body must also satisfy
further conditions under §21(b), including that “before the executive session, the chair shall state
the purpose for the executive session, stating all subjects that may be revealed without
compromising the purpose for which the executive session was called.” G. L. c. 30A, §21(b)(3).
On July 15, 2014, the Board convened an open, public meeting in the Hull Municipal
Building. Following dialogue on a wide range of issues, the Board’s Chair moved to enter
executive session as follows:
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[The Chair] requested a Motion to move to Executive Session to discuss strategy with
respect to collective bargaining, and that I as Chair declare that an open meeting may
have a detrimental effect on the bargaining position of the body, and move into Executive
Session to discuss strategy with respect to litigation and that I, as Chair, declare that an
open meeting may have a detrimental effect on the litigating position of the body, to
comply with, or act under the authority of the Attorney-Client privilege and move to go
into Executive Session to consult with legal counsel or obtain legal advice pursuant to the
Attorney-Client Privilege and not be reconvening into open session.
Administrative Record (“AR”) 29.
The Board voted publicly and unanimously to enter into executive session. Prior to
entering into executive session, the Board identified the subjects it planned to discuss:
Collective Bargaining, Sewer Plant Claims, Property Damage Claims; Chairman said he
wanted to discuss a claim where a resident is threatening to sue the Board.
AR 30. The Board thereupon moved into executive session.
On July 19, 2014, Susan Ovans of The Hull Times filed a complaint (“Complaint’) with
the Board, alleging it had violated the OML by going into executive session as it did on July 15,
2014. Specifically, Ovans claimed that the Board violated the OML by failing to identify the
union or other entity with which it was bargaining, by going into executive session about
“‘potential litigation’ with an unnamed party,” and by routinely citing as a reason for executive
session that the Board’s doing so was “‘to comply with or act under the authority of attorneyclient
privilege’ … particularly as the board frequently does not say which specific matter will be
discussed.” AR 4-5.
By letter dated August 15, 2014, the Board, through counsel, responded to the Complaint
and contended that he Board’s motion to enter into executive session “complied precisely with
the requirements of the OML.” AR 10. As to Ovan’s complaint that the Chair was not more
specific about the matters to be addressed in executive session, the Board’s counsel asserted that
“the law does not require under these circumstances that the Board state the union whose
4
negotiations were being discussed. Similarly, the law does not require that details of the potential
suit be stated.” AR10. This was so, argued the Board’s counsel, because
the disclosure of which union negotiations the Board was discussing would
compromise the permitted executive session and union bargaining. For example,
were the Board to have identified the particular union or unions it was negotiating
with would in the Board’s judgment, and [in] my professional judgment, disclose
or lead to the disclosure of information about the collective bargaining strategy
and activities of the town leading to adverse consequences with those particular
bargaining efforts and other bargaining that the town engages in. For example, …
the disclosure of which unions the board is discussing the town’s bargaining
strategy may likely cause other unions … or interested parties to take certain
actions that while [such actions] may be beneficial to those unions or parties
would not necessarily be beneficial to the bargaining positions of the town.
As to the lawsuit, the Board’s counsel argued:
[t]he law, as noted above, permits the Chair to not disclose details of claims and
other legal matters if doing so would compromise the purpose of the executive
session. The matter in question related to property damage claims, a subject
which was disclosed by the Chair. I was aware of the subject matter details and
concur with the Chair’s judgment in not releasing further details. The Town is
negotiating with the involved parties and their legal counsel as well as taking
steps to protect the town’s interest and minimize or eliminate potential liabilities.
To have stated more details would in my professional judgment have adverse
consequences for the Town and likely, among other things, interfere and impede
the actions being taken by the Town to protect the public interest.
AR 10-11.
By letter dated August 25, 2014, Ovans requested that the Attorney General review the
Complaint and the Board’s response. In response, the Attorney General commenced an
investigation, during which the Attorney General and the Board engaged in several rounds of
exchanges about the meeting at issue in Ovans’ complaint.
On January 29, 2015, the Attorney General issued a written letter ruling in this matter. In
it, the Attorney General indicated that she had reviewed Ovans’ complaint filed with the Board,
the Board’s response, the complaint Ovans filed with the Attorney General’s office, “the notice
for, and open and executive session minutes of, the Board’s July 15, 2014, meeting,” and
5
correspondence between the Board and the Attorney General between October 2014 and January
2015, including five emails sent from the Board to the Attorney General, two telephone
conversations, and one in person conversation. AR 36. Based on that review, the Attorney
General found the Board violated G. L. c. 30A, § 21(b)(3).
The Attorney General ruled that the Board properly entered into executive session to
discuss strategy with respect to collective bargaining and potential litigation pursuant to
§21(a)(3), but violated §21(b)(3) by “failing to publicly identify the collective bargaining unit
with which it was negotiating and failing to publicly identify one of the parties with whom it was
involved in litigation before entering into the executive session.” AR 36.
As to the collective bargaining issue, the Attorney General found that the Board “failed to
publicly state ‘all subjects that may be revealed without compromising the purpose for which the
executive session as called’” as required under §21(b)(3). While recognizing that under
§21(b)(3), “[a] public body may withhold the identity of the collective bargaining unit if publicly
disclosing it would compromise the purpose for which the executive session was called,” and
that the Attorney General “generally defer[s] to public bodies’ assessment of whether the
inclusion of such details would compromise the purpose of an executive session,” the Attorney
General still expected the public body to “be able to demonstrate a reasonable basis for that
claim if challenged.” AR 38. In response to the Board’s contention that such disclosure “might
have alerted other collective bargaining units to the pending agreement, thus providing those
collective bargaining units with the opportunity to interfere or use that information to advance
their own negotiations,” the Attorney General found that, while disclosure would cause “political
inconvenience, the Board did not offer any specific information to demonstrate that disclosure of
the identities of the collective bargaining units being discussed would have detrimentally
6
affected the Board’s negotiating position.” AR 38. The Attorney General thus concluded that,
“while the Board did not need to disclose any substance about its negotiating strategy or position,
it should have publicly identified which collective bargaining unit it was meeting to discuss.”
AR 38.1
As to the litigation, the Attorney General found that this was a proper subject for
executive session under the OML, that the statute permitted non-disclosure of the opposing party
if disclosure would compromise the purpose of the session, and that the Attorney General
generally deferred to the “public bodies’ assessment of whether the inclusion of such details
would compromise the purpose for an executive session [so long as it can] … demonstrate a
reasonable basis for that claim if challenged.” AR 39. The Attorney General further
acknowledged that the property owner in the dispute at issue had sent a demand letter to the
Board, and that “[t]he executive session was called so that the Board could confidentially discuss
its litigation strategy in response to threatened litigation” with its legal counsel. AR 39.
Nevertheless, the Attorney General concluded that:
[i]dentifying the claimant would, indeed, have alerted the claimant and other
interested parties to the fact that this matter was being discussed. However, we
find that is precisely what the law required. That publicly disclosing the identity
of the claimant could have encouraged others to come forward as claimants was
not detrimental to the Board’s litigation strategy, but rather was a consequence of
its status as a public entity. Similarly, that the claimant may have taken further
action in pursuit of the claim upon learning that the Board would be discussing
the matter in executive session was a consequence of the same status. We
therefore find that the minimal amount of information – the name of the claimant
– was required, because it would have notified interested parties that this matter
was being discussed behind closed doors and would not have compromised the
Board’s confidential discussion regarding its litigation strategy.
1 The Attorney General added that “[w]e do not find this violation was intentional, and we acknowledge that the
Board was acting on advice of counsel at the time.” AR 36. (g); see also G. L. c. 30A, §23(g) (“It shall be a defense
to the imposition of a penalty that the public body, after full disclosure, acted in good faith compliance with the
advice of the public body’s legal counsel”).
7
AR 39.
Accordingly, and pursuant to §23(c), the Attorney General ordered the Board’s
“immediate and future compliance with the [OML]” and to “amend its July 15, 2014 open
session meeting minutes to include the identity of the collective bargaining units and the
litigation matter involving property damage that it discussed in executive session.” AR 40.
The Town filed the instant action, seeking certiorari review of the Attorney General’s
determination, contending that the Attorney General’s determination that the Board lacked a
reasonable basis for failing to publicly disclose the identities of the collective bargaining unions
and claimant is legally erroneous.
DISCUSSION
1. Applicable Standards
A public body aggrieved by an order issued by the Attorney General pursuant to §23 may
seek judicial review of the order through an action in the nature of certiorari under G. L. c. 249,
§4. See G. L. c. 30A, §23(d). In such circumstances, the Court’s review is limited to correcting
“substantial errors of law apparent on the record adversely affecting material rights.” See
Commissioner of Revenue v. Lawrence, 379 Mass. 205, 208 (1979); Police Comm’r of Boston v.
Robinson, 47 Mass. App. Ct. 767, 770 (1999); Flemings v. Contributory Ret. Appeal Bd., 431
Mass. 374, 375 (2000); Murphy v. Contributory Retirement Appeal Bd., 463 Mass. 333, 344
(2012).
The standard of review to be applied under G. L. c. 249, §4, depends on “the nature of the
action sought to be reviewed.” Black Rose, Inc. v. City of Boston, 433 Mass. 501, 503 (2001),
quoting Boston Edison Co. v. Boston Redevelopment Auth., 374 Mass. 37, 49 (1977). In this
instance, the Attorney General determined that the Board did not comply with the OML. The
8
OML provides no fixed criteria by which the Attorney General is to make a determination as to
whether the statute has been violated; as such, the Attorney General’s determination is an
exercise of discretion. Under these circumstances, the Court reviews the Attorney General’s
decision under an arbitrary and capricious standard of review. See, e.g., Frawley v. Police
Comm’r of Cambridge, 473 Mass. 716, 728 (2016); Forsyth School for Dental Hygienists v.
Board of Registration in Dentistry, 404 Mass. 211, 217 (1989); T.D.J. Development Corp. v.
Conservation Comm’n of North Andover, 36 Mass. App. Ct. 124, 128 (1994). In applying the
arbitrary and capricious standard, the Court does not weigh evidence, find facts, exercise
discretion, or substitute its judgment for that of the administrative body, but rather determines if
the decision is legally erroneous or without factual support. FIC Homes of Blackstone, Inc. v.
Conservation Comm’n of Blackstone, 41 Mass. App. Ct. 681, 684-685 (1996).
The Attorney General has both a legislative mandate and substantive expertise under the
OML2 such that her judgments regarding the OML, including regarding the application of its
exceptions, are generally subject to deference by this Court where the statute is silent or
ambiguous. See Providence & Worcester R.R. Co. v. Energy Facilities Siting Bd., 453 Mass.
135, 141 (2009) (citations omitted) (“[i]n general, we give ‘substantial deference’ to an agency’s
interpretation of those statutes which it is charged with enforcing”); Goldberg v. Board of Health
of Granby, 444 Mass. 627, 633-34 (2005) (deference appropriate where statute is silent or
ambiguous); Biogen IDEC MA, Inc. v. Treasurer and Receiver General, 454 Mass. 174, 186–187
(2009) (same). The Court, however, is not bound by the Attorney General’s interpretation of the
OML. See, e.g., Massachusetts Organization of State Engrs. & Scientists v. Labor Relations
2 The Legislature specifically empowered the Attorney General with the authority to “interpret and enforce” the
OML, G. L. c. 30A, §23, to “promulgate rules and regulations” and “issue written letter rulings or advisory
opinions” under the statute, id., §25, and may issue written guidance to address common requests for interpretation.
940 Mass. Code Regs. §29.08.
9
Comm’n., 389 Mass. 920, 924 (1983). Further, “where the statute’s meaning is clear and
unambiguous, we give effect to the Legislature’s expressed intent. An incorrect interpretation of
a statute by an administrative agency is not entitled to deference.” Providence & Worcester R.R.
Co., 453 Mass. at 141 (citations omitted). In such circumstances, the Court must follow the law,
even if doing so conflicts with an agency’s interpretation of it. See Ellis v. Department of
Industrial Accidents, 463 Mass. 541, 552 (2012), quoting Goldberg v. Board of Health of
Granby, 444 Mass. 627, 632–633 (2005).
2. Analysis
Pursuant to G. L. c. 30A, §21(a)(3), the Board was authorized to meet in executive
session “[t]o discuss strategy with respect to collective bargaining or litigation if an open
meeting may have a detrimental effect on the bargaining or litigating position of the public body
and the chair so declares.” Procedurally, before entering executive session, the chair was
required to “state the purpose for the executive session, stating all subjects that may be revealed
without compromising the purpose for which the executive session was called.” See G. L. c.
30A, §21(b)(3). In this instance, the Chair did state the purpose for and subject of the executive
session – strategy for the collective bargaining and litigation. There is no dispute that this
purpose and these subjects were within the scope of the §21(a)(3) exception. The issue posed in
this case is whether, under §21(b)(3) and these facts, the Chair was also required to publicly
identify the unions and the litigant concerning which it sought an executive session.
A. The Collective Bargaining Disclosure
The Board contends that the statute expressly permitted it to withhold the identity of the
union or unions involved in the collective bargaining disputes at issue if, in the Board’s
judgment, doing so would “compromis[e] the purpose for which the executive session was
10
called.” G. L. c. 30A, §21(b)(3). The Board reasoned that disclosure of the identity of the
unions would result in such compromise because it would likely cause “other unions or
interested parties to take certain actions” that would “not necessarily be beneficial to the
bargaining positions of the Board.” See Administrative Record Impounded Portion (“ARIP”) at
3.
The Attorney General does not appear to contest that the identity of the unions could be
withheld under the OML under appropriate circumstances. Instead, she argues that in this case,
the Chair was required to provide “specific information” to show that identifying the collective
bargaining entity would detrimentally impact the Board’s negotiating position, contending that
“the Board never explained to the Attorney General how identifying these specific unions would
adversely affect the particular bargaining efforts discussed at the July 15, 2014 meeting. Rather
it provided examples of how disclosure of the identity of a union with which the board was
negotiating might in general be adverse to bargaining efforts.” Brief at 6. In essence, the
Attorney General argues that the determinations of the Board and its counsel that the disclosure
of the identity of the unions is not enough under the statute, and that the Board had to adduce
specific details evidencing a specific detrimental impact on the Board’s negotiating position to
satisfy the requirements of the statute.
The Attorney General’s interpretation of the OML is not found in the statute and does not
fill in a silent or ambiguous provision in it. Instead, it imposes an additional requirement not
found in the statute.
The record shows – and it appears to be undisputed – that the Board adduced support for
its conclusion (and, not insignificantly, that of its counsel) that disclosure of the identity of the
collective bargaining units at issue “would compromise the permitted executive session and
11
union bargaining” and would likely cause “other unions or interested parties to take certain
actions” that would “not necessarily be beneficial to the bargaining positions of the Board.” See
ARIP at 3, 16. The Attorney General’s role was not to supplant the Board’s judgment but to
determine whether there was a reasonable basis for the Board to have reached the conclusion that
it did. Cf. Town of Watertown v. Arria, 16 Mass. App. Ct. 331, 334 (1983) (where commission
was directed by statute to affirm an administrative action if it determined the action to be
justified, the “strong tendency” of the statutory language “indicate[s] that the question before the
commission was not whether it would have acted as the [agency] had acted, but whether, on the
facts found by the commission, there was reasonable justification for the action taken … in the
circumstances found by the commission to have existed” at the time of the decision). While
adducing specific facts to support its judgment was one way in which the Board could satisfy its
burden under the OML, the Attorney General erred by insisting that adducing such proof was the
only way it could do so. Thus, while the exceptions to the openness required by the OML
crafted by the Legislature must be “construed narrowly in keeping with the law’s overriding
purpose,” McCrea v. Flaherty, 71 Mass. App. Ct. 637, 641 (2008), and while the Attorney
General’s expertise regarding the OML is to be respected, neither the Attorney General nor the
Court may not “read into the statute a provision which the Legislature did not see fit to put there,
whether the omission came from inadvertence or of set purpose.” Provencal v. Commonwealth
Health Ins. Connector Auth., 456 Mass. 506, 516 (2010), quoting General Elec. Co. v.
Department of Envtl. Protection, 429 Mass. 798, 803 (1999); see also School Committee of
Wayland, 455 Mass. at 563, quoting McCrea, 71 Mass. App. Ct. 637, 640 (2008) (“the
Legislature has recognized that ‘not everything done by public officials and employees can or
should occur in a public meeting’”).
12
This is not to discount the Attorney General’s view that a public body should adduce
specific facts of a detrimental impact in cases like these where such evidence is available.
Indeed, she points to letter rulings of hers which support that conclusion. But at argument in this
matter, the Board contended that the Attorney General did not make it clear at the outset of the
investigation in this matter that she was looking for such specific facts. In fact, the Board noted
that the Attorney General’s guidance on the OML in place at the time of the 2014 meeting at
issue3 specifically advised public entities that “the body is not required to demonstrate or specify
a definite harm that would have arisen” from non-disclosure such is at issue here.4 While, as
discussed above, such specific evidence is not required to satisfy the statute, it is certainly
relevant to whether the Board complied with the OML, and there is some doubt that the Board
presented all of the facts on this point.
Because the Attorney General misapplied the law, and because it is unclear whether the
record was fully developed in this case, the Court remands this matter to the Attorney General
pursuant to G.L. 30A, §14(7) for it to determine, pursuant to G.L. 30A, §23(c), whether there has
been a violation of the OML in light of this decision. In this regard, the Court rejects the Board’s
argument that a hearing is necessary; Section §23(c) of the OML permits the Attorney General to
resolve an OML complaint without a hearing unless it imposes a civil penalty. No hearing is
thus required if no civil penalty is assessed.5
3 See Attorney General’s Open Meeting Law Guide (2011), at 8, available at
http://archives.lib.state.ma.us/bitstream/handle/2452/113757/ocn769688330.pdf?sequence=1&isAllowed=y.
4 The parties cite to a subsequent version of this Guidance, but both agree it was not in effect at the time of the July
15, 2014 meeting. It is thus irrelevant here.
5 The Court does not reach the Board’s contention that at the meeting following the one in dispute, the Board openly
discussed details of the executive session with respect to one of the unions with which it was bargaining and that it
would disclose the identity of the other union once an agreement was finalized. ARIP at 4. Thus, even had the
Board violated the statute by improperly withholding the names of the unions, that violation may well have been
cured by the Board’s “independent deliberative action” taken at the subsequent meeting. See Pearson v. Bd. of
13
B. The Litigation Disclosure
The Court reaches the same result regarding the Attorney General’s objections to the
Board’s declination to identify the litigant it wanted to discuss in executive session.
The Attorney General’s objections to the Board’s decision not to identify the litigant in
the matter it wanted to discuss in executive session are unfounded in the statute. The OML
specifically permitted the Board to withhold that information if doing so would preserve the
purpose of the executive session – to discuss litigation strategy. As the Board argues, part of that
strategic discussion was focused on avoiding further litigation from this or other parties and the
attendant costs to the Town. A fair reading of §21 shows that the Legislature did not intend to
deny public bodies the ability to engage in such strategic planning much like a private entity. Cf.
Suffolk Const. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450–51 (attorney-client
privilege applies over communications between public agencies and their counsel because it
serves “the same salutary purposes in the public as in the private realm”). Under a given set of
the facts, confidentiality is often necessary to formulate such strategies, and may require the
public body to maintain in confidence the identity of the counterparty in such a dispute. The
OML does not prevent a public body from withholding from public disclosure the name of a
litigant if the facts warrant it doing so to preserve the purpose of the executive session in light of
adverse impacts that would otherwise result from such disclosure.6
Selectmen of Longmeadow, 49 Mass. App. Ct. 119, 125 (2000) (court found that subsequent notice at a public
meeting could cure any open meeting law violations of previous, improperly held executive session). The Court
leaves this issue for the Attorney General’s consideration on remand.
6 Under §21(a)(9), a public body is required to publicly identify the parties in any mediation in which the public
entity engages, but is not specifically required to make such disclosure when the public body wishes to go into
executive session to discuss litigation or collective bargaining strategy under §21(a)(3). This distinction makes
sense. The decision to mediate reflects a fully-formed strategy, and its public disclosure does not interfere with the
public body’s ability to defend itself. In contrast, the development of that strategy – including the decision whether
to mediate at all – requires confidential discussions which are often necessary.
14
The Attorney General’s determination that the Board was prohibited from considering the
damage to the Town that may result from public disclosure of the name of the litigant, and her
corollary finding that public disclosure of the identity of the claimant was required by the OML
even where such disclosure “could have encouraged others to come forward as claimants … [or
encourage] the claimant … [to] take[] further action in pursuit of the claim upon learning that the
Board would be discussing the matter in executive session,” undercuts the statutory exception
and, in fact, may render it meaningless. Indeed, the Attorney General’s own guidance did not
require as much; it merely reflected the OML’s requirement that a public body which otherwise
properly convenes in executive session under the litigation exception must show that “an open
meeting may have a detrimental effect on the litigating position of the public body.”7
Because the Attorney General misapplied the law in evaluating whether the Board
properly declined to disclose the identity of its litigation opponent, and because as noted above
there is some doubt that the record is not complete in this case, the Court remands this matter to
the Attorney General for review of the Board’s decision in light of this decision.
7 See Attorney General’s Open Meeting Law Guide (2011), at 8.
15
ORDER
The motion for judgment on the pleadings filed by plaintiffs Board of Selectmen of the
Board of Hull and the Board Manager of the Board of Hull is ALLOWED. The motion for
judgment on the pleadings filed by defendant Attorney General is DENIED. The Attorney
General’s order that the Board amend its minutes reflecting the meetings in dispute is
VACATED and this matter is REMANDED to the Attorney General for further review
consistent with this decision. Plaintiffs’ motion for further declaratory relief is DENIED.
SO ORDERED.
MICHAEL D. RICCIUTI
Justice of the Superior Court
Dated: December 14, 2017 read more

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Posted by Massachusetts Legal Resources - December 22, 2017 at 7:17 pm

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Dell’Isola v. State Board of Retirement, et al. (Lawyers Weekly No. 11-154-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

16-P-963                                        Appeals Court

MICHAEL DELL’ISOLA  vs.  STATE BOARD OF RETIREMENT

another[1].

No. 16-P-963.

Suffolk.     September 8, 2017. – December 15, 2017.

Present:  Rubin, Neyman, & Henry, JJ.

Retirement.  Public Employment, Forfeiture of pension.  Correction Officer.

Civil action commenced in the Superior Court Department on December 31, 2014.

The case was heard by Linda E. Giles, J., on motions for judgment on the pleadings. read more

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Posted by Massachusetts Legal Resources - December 15, 2017 at 10:42 pm

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State Board of Retirement v. O’Hare, et al. (Lawyers Weekly No. 11-155-17)

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Posted by Massachusetts Legal Resources - December 15, 2017 at 7:08 pm

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Worcester Regional Retirement Board v. Contributory Retirement Appeal Board, et al. (Lawyers Weekly No. 11-147-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

17-P-66                                         Appeals Court

WORCESTER REGIONAL RETIREMENT BOARD  vs.  CONTRIBUTORY RETIREMENT APPEAL BOARD & others.[1]

No. 17-P-66.

Worcester.     October 11, 2017. – November 29, 2017.

Present:  Milkey, Massing, & Ditkoff, JJ.

Contributory Retirement Appeal Board.  County, Retirement board. Municipal Corporations, Retirement board, Pensions.  Public Employment, Retirement, Retirement benefits.  RetirementPension. read more

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Posted by Massachusetts Legal Resources - November 29, 2017 at 4:44 pm

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Anne Gamble Ten Taxpayer Group, et al. v. Health Facilities Appeals Board, et al. (Lawyers Weekly No. 09-031-17)

1
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
SUCV2015-3545-BLS2
ANNE GAMBLE TEN TAXPAYER GROUP, consisting of
GUSTAVE H. MURBY, ANNE C. GAMBLE, WALTER J. GAMBLE, STEPHEN GELLIS, M.D., LORING CONANT M.D., JR., CONANT LOUISE, BRIAN GREENBERG, PEGGY GREENBERG, KAREN D’AMATO, CHRISTINE BARENSFELD, JOHN W. HAGERMAN, ROBERT GAMBLE, SHIRLEY C. DUFF, JAMES K. DUFF, JAMES M. SMITH, and ELLEN K. ANDERSSON,
Plaintiffs
vs.
HEALTH FACILITIES APPEALS BOARD, MONICA BHAREL, M.D., in her capacity as COMMISSIONER OF MASSACHUSETTS DEPARTMENT OF PUBLIC HEALTH, MARYLOU SUDDERS, in her capacity as SECRETARY OF MASSACHUSETTS EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES, and CHILDREN’S HOSPITAL CORPORATION d/b/a CHILDREN’S HOSPITAL,
Defendants
MEMORANDUM OF DECISION AND ORDER
ON CROSS MOTIONS FOR JUDGMENT ON THE PLEADINGS
AND ON PLAINTIFFS’ MOTION TO AMEND COMPLAINT
This is one of several lawsuits filed by a group of plaintiffs unhappy with a decision by the defendant Boston Children’s Hospital (BCH) to eliminate the Prouty Garden as part of a modernization and expansion project. In the instant case, plaintiffs challenge the October 27, 2016 determination by the Commissioner of the Department of Public Health and the Public Health Council (collectively, the Department) to issue a Determination of Need in connection with that project. The Department’s decision is subject to judicial review pursuant to G.L.c. 30A §14 and G.L.c. 111 §25E. With the Administrative Record having been filed, this case is before this Court on Cross Motions for Judgment on the Pleadings, as required by Superior Court Standing Order 1-96. Plaintiffs also seek leave to amend their Complaint. This Court concludes
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that the plaintiffs’ motions must be DENIED and the defendants’ Cross Motion must be ALLOWED, for reasons set forth herein.
BACKGROUND
Section 25C of Chapter 111 of the Massachusetts General Laws states that a health care institution contemplating a construction project that requires a “substantial capital expenditure” must first obtain a determination of need or “DoN” from the Department of Public Health (DPH). The purpose of the statute is to “control unnecessary expansion by health care institutions of their patient care facilities,” Howe v. Health Facilities Appeals Bd., 20 Mass.App.Ct. 531, 532 (1985), and to encourage the appropriate allocation of resources for health care purposes. Shoolman v. Health Facilities Appeals Bd., 404 Mass. 33, 36 (1989). In order to obtain a DoN, the health care institution must file an Application, which is reviewed for completeness and then forwarded for to the Public Health Council (PHC) and the Commissioner of DPH for their consideration. 105 C.M.R. §510-100.530.1 The Application is also subject to comments and a public hearing. G.L.c. 111 §25C, 105 C.M.R. §§100.400-100.410. The DoN Program Director prepares a staff report (the Staff Summary). 105 C.M.R. §§100.420-100.421. Upon consideration of the Application, the Staff Summary and comments by “parties of record” and the general public, the Department makes a final Determination of Need approving or disapproving the Application, in whole or in part. 105. C.M.R. §100.530(A). Under G.L.c. 111 §25E, any person aggrieved by the determination may, within fourteen days, file an appeal with
1 This Court was informed by counsel at the hearing on these Motions that the DoN regulations have since been amended. As this Court understands it, any changes with regard to content have no bearing on this case. The amendment has changed the number references for those regulations, however. Because the parties agree that the earlier version of the regulations apply and because they have cited to that earlier version in their pleadings, this Court uses the citations to those older regulations, even though they have now been superseded.
3
the Health Facilities Appeals Board. G.L.c. 111 §25E. Within sixty days of that filing, the Board is to issue a final decision either denying the appeal or remanding it for further action.
In the instant case, all these procedural steps were followed. On December 7, 2016, BCH filed an Application for a DoN in connection with a project to create new clinical space, including a neonatal intensive care unit and improved Heart Center at the hospital’s Longwood Avenue location (the Project) If approved, the Project would require the destruction of the Prouty Garden. The plaintiffs are a group of taxpayers who oppose destruction of the garden. They are duly registered with the Department as a “party of record” to the DoN proceedings and may file comments to the Application, which they did.
As required by statute, the DPH staff, held a public hearing on the Project and the plaintiffs were among those who provided their views. After a ten month review process, DPH issued a 37-page Staff Summary that recommended approval of the Application, with conditions. That Summary was later supplemented with an Addendum that addressed certain comments, including those submitted by the Health Policy Commission (HPC). On October 20, 2016, the PHC, chaired by DPH Commissioner Monica Bharel, held a hearing to determine whether to grant BCH’s DoN Application. Among those presenting testimony at the hearing were various individuals who opposed the destruction of Prouty Garden. The PHC ultimately voted to approve BCH’s Application, and the Commissioner and the PHC, acting together as the Department, issued a Notice of Final Action on October 27, 2016. That Notice states that the issuance of the DoN was based upon BCH’s “clear and convincing demonstration that the Project meets each of the governing factors, set forth in 105 C.M.R. 100.000 and Department guidelines.” The approval expressly included certain conditions. Although the statute is ordinarily reviewable by the Health Facilities Appeals Board, the Board had not yet been
4
constituted so that the determination by the Department was considered final. 105 C.M.R. §100.970(B); 105 C.M.R. §100.551(A). This lawsuit ensued.
DISCUSSION
The Legislature has determined what standard that this Court applies in reviewing a Department decision to issue a DoN. That standard is set forth in G.L.c. 111 §25E, which states that the Department’s determination may be set aside only where there has been an “abuse of discretion” or where it is in violation of the procedural or substantive law. Contrary to the plaintiffs’ position, this Court does not apply the more rigorous “substantial evidence” standard. Howe v. Health Facilities Board, 20 Mass.App.Ct. 531, 534-537 (1985); see also Shoolman v. Health Facilities Appeals Board, 404 Mass. 33 (1989). Rather, the review is even more deferential. As explained by the SJC, the decision to issue the DoN can be overturned only if it was “arbitrary and capricious.” Shoolman, 404 Mass. at 36. If there is a rational basis for the decision and it is not otherwise unlawful, then it must be affirmed. Applying this standard, this Court concludes that the plaintiffs have not met their burden of demonstrating that the Department’ decision to issue a DoN to BCH should be overturned.
As stated in the October 27, 2016 Notice of Final Action, the Department reviewed BCH’s Application to determine whether it complied with certain mandatory terms and conditions of the applicable regulations. Specifically, it sought to determine whether the Project met each of nine factors set forth in 105 C.M.R. §100.533(B). In support of their Motion, plaintiffs focus on a couple of these factors and argue that the evidence does not support the Department’s decision. One of those factors (Factor One) requires BCH to demonstrate that the Project “will not duplicate existing resources in the applicable service area.” 105 C.M.R. §100.533(B) (1). A second factor (Factor Two) requires that the project must “satisfy in whole
5
or in part health care requirements of the project population of the applicable services area, without any duplication of services and other adverse service consequences…” ” 105 C.M.R. §100.533(B) (2). Plaintiffs argues that the Project does not satisfy these requirements because it is based not on present needs but on BCH projections regarding future patient volume. Moreover, these projections (they argue) are not based on increased demand from Massachusetts patients but from international and out of state patients. Citing comments by the HPC, plaintiffs express concern that shifting patients from competing local pediatric care providers to BCH could have a destabilizing effect that would translate into higher health care costs overall. Plaintiffs argue that the Department ignored these concerns and that the Department’s decision that the regulatory factors were satisfied is wholly unsupported by the facts presented to it.
In fact, a review of the Administrative Record shows that the Department did consider the same arguments and criticisms plaintiffs now make to this Court. The HPC’s comments, for example, were specifically addressed both in the Staff Summary and the Addendum. The plaintiffs may disagree with how the Department resolved those concerns, but that is not a basis to overturn its decision. Moreover, the reasons offered in support of the decision are neither arbitrary nor capricious. Regarding the danger of duplication of services, the Staff Summary concluded that the “applicable services area” referenced in the regulations can – and, in the instant case, did — extend to an area beyond Massachusetts so that it was permissible to consider patients projected to come from out of state and internationally. The Department further determined that higher acuity patients from all regions, including the Boston area, are already coming to BCH for more complex procedures than are available at other local hospitals, decreasing the danger that services would be duplicated. As to the validity of BCH’s projections, the DPH Staff required from BCH an Independent Cost Analysis which (among
6
other things) reviewed population projections, historical trends, and two patient projection scenarios. That analysis concluded that the success of the Project would not require taking patients away from other local providers and was also “consistent with the Commonwealth’s effort to meet the health care cost containment goals.” In short, in making the findings that it did, the Department did not abuse its discretion or exceed its legal authority. Indeed, even under the less deferential “substantial evidence” standard, the DoN determination passes muster.
Significantly, the Department did not simply determine that BCH’s Application satisfied the nine mandatory factors imposed by the regulations. Additionally, it imposed eight conditions on BCH, among them “Condition 8.” That condition imposed three requirements on BCH that directly addressed the concerns expressed above. First, BCH was prevented from passing on its incremental operating costs to government and nongovernment Massachusetts payors or patients “in excess of the Commonwealth’s costs containment goals.” Second, BCH had to maintain its commitment to serving Medicaid patients. Third, it is required to make an annual report to the Department that includes among other things information concerning the degree to which the out-of-state demand it anticipated was actually being realized. Plaintiffs argue that this condition is somehow invalid or at the very least unworkable. This Court disagrees.
The DoN regulations expressly permit the Department to impose conditions. See 105 C.M.R. §100.552(A) (Department “may prescribe…any other conditions reasonably related to the scope of the project…and consistent with the objective of making adequate health care services reasonably available to every person within Massachusetts”). Indeed, the regulations specifically contemplate the imposition of a condition in the event that the Project falls short of satisfying any of the nine regulatory factors. See 105 CM.R. §100.533(C). Plaintiffs argue that
7
Condition 8 is not in accordance with 105 C.M.R. 100. §552, which requires that the condition be “within the control of the applicant.” But each of the three requirements that Condition 8 imposes are within BCH’s control and are matters for which the Department can hold BCH accountable. That Condition 8 by its terms gives to BCH an opportunity to argue that it is noncompliant with any of the requirements because of unexpected circumstances or events does not change the fact that the condition itself (including the submission of an annual report) concerns matters within BCH’s control. Nor does this so called “escape clause” render the Condition meaningless: a finding by the Department that BCH is not in compliance with Condition 8 permits the Department to require BCH to remove beds from service and to extract other payments. In short, this Court sees no legal grounds for overturning the Department’s decision.
At the same time that the plaintiffs filed their Cross Motion for Judgment on the Pleadings, they also filed a Motion to Amend the Complaint. This Motion seeks to add a count (Count 4) which alleges that since the issuance of the DoN, BCH is in violation of the conditions that the Department imposed and has otherwise not complied with applicable regulations. BCH argues that plaintiffs’ allegations are demonstrably false and that further amendment of the Complaint would futile. Although this Court must accept plaintiffs’ allegations as true, this Court does have some discretion to deny a request to amend a complaint, and does so here. See Rule 15(a), Mass.R.Civ.P.
Count 4 alleges among other things that the report that Condition 8 requires BCH to submit to the Department is inadequate; it also alleges that BCH has not complied with Condition 7 of the DoN that requires it to implement a plan to effectively communicate with community groups. Whether BCH is in violation of those conditions, however, is a matter that
8
should first be addressed to the Department, which has both the expertise and the primary responsibility for enforcing its own regulations and orders. See Athol Mem’l Hospital v. Comm’r of Div. of Med. Assistance, 437 Mass. 417, 421-422 (2002). Other parts of Count 4 do not appear to belong in this case at all. For example, plaintiffs allege public records violations, but have already filed a separate public records action which this Court has already refused to consolidate with the instant one. See Murby v. Marylou Sudders, Civ. No., 17-1036H (Suffolk Superior Court). 2 A motion to amend may also be properly denied based on “undue delay, bad faith, or dilatory motive on the part of the movant.” Vakil v. Vakil, 450 Mass. 411, 417 (2008), quoting Castellucci v. United States Fid. & Gaur. Co., 372 Mass. 288, 290 (1977). BCH argues (not without basis) that the plaintiffs here are more interested in delay than in seeking redress for real (as opposed to illusory) legal violations. In short, taking into account both the procedural background of this case together with the violations that are alleged, there is ample basis for this Court to exercise its discretion to deny the motion.
CONCLUSION AND ORDER
For all the foregoing reasons together with reasons articulated in the Memoranda of BCH and the Department, the plaintiffs’ Motion to Amend the Complaint and their Motion for Judgment on the Pleadings are both DENIED. The defendants’ Cross Motion for Judgment on the Pleadings is ALLOWED and it is hereby ORDERED that judgment enter affirming the Department’s DoN determination. The parties shall submit a proposed form of judgment within 10 days of receiving this opinion.
_____________________________
Janet L. Sanders
Dated: October 13, 2017 Justice of the Superior Court
2 Based on plaintiffs’ Reply Memorandum, it appears that at least some of the information that plaintiffs sought was provided as of the date the Motion to Amend was filed, suggesting that at least some of the alleged violations are now moot or may soon become moot once the records are provided.
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Dated: October 13, 2017 read more

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Posted by Massachusetts Legal Resources - November 3, 2017 at 2:37 pm

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