Process may have violated Open Meeting Law

BY KRIS OLSON AND LEIGH BLANDER

The Marblehead School Committee may have violated the state’s Open Meeting Law by not reconvening in open session to ratify the settlement agreement reached with Superintendent John Buckey.

That agreement was announced by a “joint press release” distributed by email by Chair Sarah Fox on Aug. 2, two days after the board had met in executive session to continue strategizing over its intent to exercise a buyout clause in Buckey’s contract.

The state’s open meeting law, G.L.c. 30A, § 21, sets out 10 permissible reasons for entering executive session, and the board entered its July 31 executive session — and another such session 10 days earlier — citing the second of those reasons, “to conduct strategy sessions in preparation for negotiations with nonunion personnel or to conduct collective bargaining sessions or contract negotiations with nonunion personnel.”

However, guidance from the Attorney General’s Office makes clear, “While a public body may agree on terms with individual non-union personnel in executive session, the final vote to execute such agreements must be taken by the public body in open session.”

Buckey

Neither Buckey nor the community at large ever learned why the School Committee wanted him to leave. Fox adjourned a public meeting about Buckey’s future after one minute, which meant at least 235 people who tuned in on Zoom could not ask questions or share their thoughts.

“We have not been told the basis for this action,” Buckey’s attorney Mike Long said about the discussions over his client’s ouster before the agreement was signed.

Fox has repeatedly declined to comment on the board’s thinking.

Buckey’s goodbye

Buckey released his own statement the day of the announcement.

“I arrived in Marblehead during the COVID-19 pandemic’s darkest days; schools were closed. The district was relying on outdated tools, technology, processes and practices. During my tenure, we made significant progress academically, implementing new curricula in mathematics and ELA, aligning teaching and learning across our elementary schools, and ensuring that all students were receiving rich, robust, state-ofthe-art instruction. We updated technology to present-day standards, made significant improvements to safety and established a five-year plan for success. We implemented iReady, an assessment system, to monitor student progress, and we have seen growth in scores across the district. We maintained a healthy working relationship with the teachers’ union, as evidenced by a threeyear lack of grievances.”

Buckey’s statement concluded, “Finally, I would like to thank the good people of Marblehead. You have welcomed me and my husband into this community and been allies in the work to make Marblehead great. To my colleagues in town government past and present – Jason Silva and Thatcher Kezer, Jackie BelfBecker, Moses Grader, Jim Nye, Jason Gilliland, Bob Picariello, Dennis King — among countless

The Current asked two attorneys whether there was a meaningful distinction between an initial contract or contract extension and the “settlement agreement and release” reached with Buckey, and both replied that there was not — that all were “new contracts” that should have been voted on in open session.

Late Monday afternoon, in response to an inquiry from the Current, the School Committee’s attorney, Colby C. Brunt, said it was her understanding from speaking to Chair Sarah Fox that Fox would be scheduling a public meeting this week to ratify the separation agreement.

Previously, Fox had indicated that the guidance the board had gotten from Brunt was that a public vote was unnecessary, citing the fact that Buckey had “resigned”rather than being dismissed by the School Committee.

“We have a lawyer. She has advised us throughout the process, and we have followed all directions,” Fox told the Current. “I have complete faith in her legal advice. We did not terminate Dr. Buckey. He resigned. I can not divulge anything from executive session.”

Fox’s explanation appears to reference the first justification for an executive session under G.L.c. 30A, § 21, which allows executive sessions to be called “to discuss the reputation, other dedicated and tireless Marblehead leaders, I appreciate your collaboration and support as we navigated tumultuous times and issues together.”

Revolving door

In June, the committee gave Buckey his third straight “proficient” rating on his annual review. In 2021, it extended his contract by two years and in 2022 it awarded him a 2.5% raise.

Two new members joined the School Committee in June, Jenn Schaeffner and Brian Ota. Ota filed a discrimination complaint against Buckey last year but failed to reveal that during his campaign.

Buckey was Marblehead’s eighth permanent or interim superintendent since 2006, leading former School Committee member Tom Mathers to comment, “I would say that the Marblehead public schools district seems to have been in disarray for years, and there is a history of School Committees churning and burning superintendents.”

Open Meeting Law violations?

Prior to the agreement being reached, Marblehead resident Cathyann Swindlehurst filed an Open Meeting Law violation complaint against the School Committee, which demanded a public discussion about Buckey’s future. Fox said she forwarded the complaint to the district’s attorney.

There are also concerns that the board may have violated the Open Meeting Law by not taking a vote about Buckey’s agreement in a public meeting. (See story, Page 5.) The School Committee has not scheduled a public meeting since the one adjourned after one minute last month.

A ‘hostile takeover’ character, physical condition or mental health, rather than professional competence, of an individual, or to discuss the discipline or dismissal of, or complaints or charges brought against, a public officer, employee, staff member or individual.”

Word of Buckey’s departure, while not a surprise after the last several weeks, still hit hard for many people in town.

School Committee member Meagan Taylor, the only member of the committee who has spoken publicly about efforts to move on from Buckey, expressed her frustration in a letter to the editor to the Current.

However, the published agenda for the July 31 meeting specifically references the negotiation clause, G.L.c. 30A, §21(a)(2), and not G.L.c. 30A, §21(a)(1).

When the Attorney General’s Office has found that a local board has violated the Open Meeting Law requiring a public vote to execute a non-union personnel agreement, it typically has chosen not to nullify the actions taken by those boards.

For example, in 2011, the AG’s Office found the Foxborough School Committee violated the Open Meeting Law by agreeing to a contract addendum with its school superintendent in executive session and failing to ratify that agreement in open session.

That the negotiations had taken place in executive session was fine, the AG’s Office found.

“However, once the contract negotiations were complete, and the two parties had agreed to terms, the Committee should then have reconvened in open session and voted to approve the contract addendum, rather than taking such a vote in executive session.”

“Members of this committee have campaigned on — and pride themselves on — transparency, public participation and strong governance,” she wrote.

“However, this process has shown a complete lack of these principles. This has all transpired in the middle of the summer, when teachers and parents are away and (hopefully) enjoying a well-deserved break. Meetings have been hastily scheduled and held on Zoom. Information has been withheld from the full committee.”

She continued, “The reason for executive sessions has changed without any additional information provided to the committee, the public or Dr. Buckey. Members of this committee have also disregarded operating protocols, best practices and their word. These conversations are happening behind closed doors, without authority from the full committee or opportunity for public input.”

Jackie Belf-Becker, who served 18 years on the Select Board and additional years on the School Committee, was angry.

“Some people have been throwing the word ‘transparency’ around,” she said. “Jenn Schaeffner had that word on her campaign signs. I have never seen a lack of transparency more than with that particular School Committee member. It’s outrageous. How can they sleep at night?”

Belf-Becker was also concerned about the financial implications.

“Where is that $175,000 coming from, when we couldn’t even pass an override?” she asked. “How many teachers are they going to have to cut to do what they’re doing? And they don’t even have a librarian yet. The kids are at stake.”

Former School Committee member Sarah Gold added, “I am deeply saddened by the news that Dr. Buckey is leaving[a] the Marblehead Public Schools. What has transpired over the past few weeks has been nothing short of a hostile takeover of the Marblehead School District. This is a rogue committee that is refusing to listen to anyone other than their own narrow constituency. It is a dark day in Marblehead.”

Another option would have been to wait until the agreement was reduced to writing and then approve the written document at a subsequent open session before the addendum was signed by the chair. The AG’s Office declined to nullify the actions of the Committee at the executive session, instead ordering “immediate and future compliance by the Committee with the Open Meeting Law.”

The AG’s Office also cautioned “that a determination by our office of similar violations in the future may be considered evidence of intent to violate the Open Meeting Law.”

A similar decision was reached later that same year after a complaint was filed against the Carver Board of Selectmen over its approval in executive session of a new contract for the town administrator, which was announced as a done deal in open session at a subsequent meeting.

“While the Board had proper authority under Purpose 2 to strategize and negotiate with the Town Administrator in executive session, the scope of the purpose is limited to the discussions, negotiations, and deliberations that occur prior to the vote on a contract,” the Attorney General’s Office wrote. “The Open Meeting Law does not permit the Board to approve a contract behind closed doors where the public cannot witness the agreement.”

Again, the AG’s Office stopped short of nullifying the approval of the town administrator’s contract.

But it added, “While we do not order nullification, in the interest of transparency, we strongly recommend that the Board reconsider its vote on the contract during an open session meeting.”

Also in 2011, the AG’s Office offered similar guidance to the Stoughton School Committee, which was found to have violated the Open Meeting Law by granting the town’s superintendent a contract extension in executive session.

The AG’s Office suggested the same remedy — reconsideration of the vote on the contract extension during an open meeting.

The AG’s Office noted that, to fix an Open Meeting Law violation in this way, “the public body must take independent, deliberative action, and not merely engage in a ceremonial acceptance or perfunctory ratification of a secret decision.”

It was not enough that the board had subsequently held an open session discussion of the merits of the contract extension, the AG’s Office stated.

“Allowing public comment on an action already taken without publicly reconsidering the vote cannot cure a violation of the Open Meeting Law,” it wrote.

BUCKEY’S FAREWELL MESSAGE

By John Buckey

I have reached an agreement with the Marblehead School Committee to end my employment as superintendent of schools. I would like to take a moment to reflect on my service to the town I now call home.

I arrived in Marblehead during the COVID-19 pandemic’s darkest days; schools were closed. The district was relying on outdated tools, technology, processes and practices. During my tenure we made significant progress academically, implementing new curricula in mathematics and ELA, aligning teaching and learning across our elementary schools and ensuring that all students were receiving rich, robust, state-of-the-art instruction.

We updated technology to present-day standards, made significant improvements to safety and established a five-year plan for success. We implemented iReady, an assessment system, to monitor student progress and we have seen growth in scores across the district. We maintained a healthy working relationship with the teacher’s union, as evidenced by a three-year lack of grievances.

I would be remiss not to recognize the outstanding work of our district and school-based administrative personnel. They are exceptionally dedicated to the betterment of our district. Lisa Dimier, my administrative assistant, has been indefatigable in her efforts to bring order, systems and structures to our work. She has done this with an effusive enthusiasm and a dedication to making Marblehead Public Schools exemplary.

I would like to express my sincere appreciation to our faculty and staff. It has been a pleasure to be in your classrooms and to see your dedication and professionalism. Joan Miller, past MEA president, and Jonathan Heller and Sally Shevory, current MEA co-presidents have been invaluable collaborators in our sincere work to make MPS among the best districts on the North Shore and across the Commonwealth.

Our parent community and PTOs have been wonderful partners in supporting educational initiatives, bringing countless enrichment and extended learning opportunities to our students. I am grateful for all we did together.

Finally, I would like to thank the good people of Marblehead. You have welcomed me and my husband into this community and been allies in the work to make Marblehead great. To my colleagues in town government past and present — Jason Silva and Thatcher Kezer, Jackie Belf-Becker, Moses Grader, Jim Nye, Jason Gilliland, Bob Picariello, Dennis King — among countless other Marblehead leaders, I appreciate your collaboration and support as we navigated tumultuous times and issues together.

In a statement, the co-chairs of the Marblehead Education Association, teachers Jonathan Heller and Sally Shevory, urged all members of the district to look forward.

“Now, we need to come together as a community to benefit the children of Marblehead,” they wrote. “While there may be differences of opinion at times, I believe we all share the same goal of providing an exemplary education to the children of Marblehead.”

The educators added, “We need to work together to build a budget that will attract and retain the best educators possible.”

For more coverage of the superintendent saga and to read more than 40 letters to the editor on the subject, visit MarbleheadCurrent.org.