'Definition of the smoke-filled room': Brockton School Committee broke law, expert says

BROCKTON — The Brockton School Committee likely violated the state's open meeting law during a special meeting held on the night the mayor revealed a $14.4 million budget "deficit," according to a leading expert.

Robert Bertsche, a First Amendment and public records laws expert and partner at Boston's Klaris Law, says the school committee didn't follow the state's open meeting law when it held a special school committee meeting on the evening of Thursday, Aug. 31.

After a four-hour, closed-door meeting, Mayor Robert Sullivan, who is the chair of the school committee, read a prepared statement outside the high school, with members of the school committee behind him, and announced the multimillion-dollar budget deficit for fiscal 2023, which ended in June. He also said that Superintendent Michael Thomas, who was not present for the closed session meeting, informed the committee that he would be taking an extended medical leave.

Was the public allowed into the meeting?

Members of the public, including an employee of The Enterprise, were not allowed into the high school for the scheduled meeting, instead being turned away by a police officer.

Was the meeting recorded?

The meeting was not broadcast or recorded by Brockton Community Access. An employee at the local TV station said they were not made aware of Thursday's meeting until after it had started and were not in attendance.

"If the public wasn't allowed in, it wasn't called to order or adjourned in public," Bertsche said. "That's an absolute violation of the open meeting law."

'$14 million deficit': Brockton Schools superintendent on 'extended medical leave'

'Madness has got to stop': Brockton school board launches investigation of $14.4M deficit

Here's the school committee's response

Sullivan and Kathleen Ehlers, the vice chair and Ward 1 representative on the school committee, did not directly respond to requests for comment for this story. Instead, a spokesperson for Sullivan sent a statement from the committee's lawyer.

"The School Committee appropriately convened in Public Session and took a proper motion to move to Executive Session," said Sarah Spatafore, the school committee's attorney. "Though the public portion of the meeting was not recorded, minutes were taken of the open session, which will be reviewed and published in the normal course. The only topics discussed in Executive Session were those properly within the listed exemptions."

The city was specifically asked by The Enterprise and did not deny that the public wasn't allowed into the school for the meeting.

Why Brockton police details cost so much And why switch to civilian flaggers imploded

Was meeting legal under new COVID remote rules?

At the very least, members of the public would have needed to be allowed inside for the meeting, even if the committee just called the meeting to order and took a vote to go into executive session, Bertsche said.

"There is an obligation on the part of the school committee to state, on the record, in an open meeting, what the purposes are that they're going into executive session, where as much detail can be provided without frustrating the purpose for the executive session," he said. "You have to let the public in, not just one favored medium. If they open it to the cable guys, they have to let you in, too. Even under the remote participation rules, if somebody wants to be there in person, they are allowed to be there in person. There wasn't a COVID reason to not have this in public."

2 Brockton cops made more than $400K Here are the city's top 10 highest paid workers.

What could and couldn't the school committee talk about in executive session?

The agenda stated two purposes for the executive session:

• "To discuss the reputation, 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."

• "To conduct strategy sessions in preparation for negotiations with nonunion personnel or to conduct collective bargaining sessions or contract negotiations with nonunion personnel."

The agenda did not mention who would be spoken about in executive session. In the past, Brockton School Committee agendas have, at times, been specific about reasons for such closed-door sessions.

In particular, on June 20, 2023, the agenda stated the committee would enter executive session "to consider the lease of a certain portion of property located at 470 Forest Avenue (i.e., the Brockton High School campus) in connection with the potential location of a health center."

On the May 9, 2023, agenda, similarly to last Thursday's agenda, the committee said it would enter executive session to conduct strategy secessions in preparation for negotiations, but specifically stated that it was about the Brockton Education Association, or teachers' union.

'Rumors': What Brockton school dept. says is true and false about $14 million deficit

"A lot of bodies will just cite the language of the statute, but more than that is required," Bertsche said.

"This is the definition of the smoke-filled room that the open meeting law is meant to prevent," he said. "First of all, the fact that they call an emergency session says something. It means it's something pretty important because they weren't able to give 48 hours' notice for it. The regs require that it has to be a sudden, generally unexpected occurrence or set of circumstances demanding immediate action."

In his prepared statement last Thursday night, Sullivan said he was "extremely dismayed" by the situation and "committed to ensure that we will rectify the situation, appoint new leadership and move forward with our strategy, our concise strategy, to delivery the best schools for our teachers, our staff, our students and, our course, our guardians."

There was no previous public mention of the superintendent's medical leave or the exact amount of overspending.

Brockton Public Schools Chief Financial Officer Aldo Petronio, who was put on administrative leave on Friday, along with Director of Financial Services Chris Correia, according to Sullivan, announced at the Aug. 15 school committee meeting that the district was expecting deficits in several accounts. No exact amount had been figured out at that point, Petronio said.

"The fact is, they didn't uncover a $14 million deficit that night. That is not conceivably within the realm of the two exceptions they cited. That's clear," Bertsche said. "They had no right, and anything they decided in that meeting has to be undone, they had no right to be discussing that in private. The minute somebody brings it up, the chair should be saying, 'Stop, we can't discuss this privately, we can reconvene in public.'"

Did school committee follow open meeting law the next day?

The next afternoon, on Friday, Aug. 1, the school committee held an emergency meeting to name James Cobbs the interim superintendent. The meeting was open to the public and a proper vote was taken to later enter executive session for contract negotiations.

"It shows that they know better. They know what the right way to go about it is and they didn't follow it, which makes it that much more egregious," Bertsche said. "They can't successfully plead ignorance of the open meeting law. They knew what they needed to do and didn't do it."

At Friday's meeting, the school committee voted unanimously to have Sullivan, Ehlers and two other school committee members find an "independent, third-party audit and investigation" of the budget deficit for fiscal 2023.

Enterprise senior reporter Cody Shepard can be reached by email at cshepard@enterprisenews.com.

This article originally appeared on The Enterprise: Why a Brockton School Committee meeting on budget possibly broke MA law