May a public body approve a non-union personnel contract in executive session?

The final vote to execute a non-union personnel agreement must occur in open session.  A public body may enter executive session under Purpose 2 to “conduct strategy sessions in preparation for negotiations with nonunion personnel or to conduct . . . contract negotiations with nonunion personnel.”  G.L. c. 30A, § 21(a)(2).  This purpose allows a public body to meet in executive session to discuss its strategy with respect to negotiating a contract with non-union personnel, and to engage in direct negotiations with non-union personnel.  However, the executive session purpose does not permit the public body to take a final vote to execute such a contract behind closed doors. 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.  See OML 2011-56; OML 2011-44; OML 2011-28.

 

May a public body approve a collective bargaining agreement (CBA) with a union in executive session?

A public body may approve final terms and execute a CBA with a union in executive session, but should promptly disclose the agreement in open session following its execution.  A public body may enter executive session under Purpose 2 to “conduct collective bargaining sessions” and under Purpose 3 to “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)(2), (3).  These purposes allow a public body both to discuss collective bargaining strategy and to bargain directly with a union in executive session. Id.; see Board of Selectmen of Marion v. Labor Relations Commission, 7 Mass. App. Ct. 360 (1979).  Unlike the language in Purpose 2, Purpose 3 does not limit strategy discussions to the preparatory stage, rather it broadly allows a body to go into executive session “to discuss strategy” with respect to collective bargaining or litigation any time an open meeting may have a detrimental effect on the body’s bargaining or litigating position and the chair so declares.  G.L. c. 30A, § 21(a)(3).  Because there are circumstances in which both the bargaining and litigating positions of a public body may be detrimentally affected by voting on a final CBA in the open, then, if the chair determines that such circumstances are present, contract approval may occur in executive session if the chair makes the appropriate declaration, and no open session ratification is needed.[1] See Doherty v. School Committee of Boston, 386 Mass. 643 (1982) (holding that closed door votes are permissible where a body meets in executive session to protect its litigating position).  Once a CBA has been executed, the public body should publicly announce the CBA in open session and describe the terms reached.  Ideally, this should occur either during the same meeting or at the public body’s next scheduled meeting.

[1] Note, however, that the Open Meeting Law does not require that any topic be discussed in executive session.  We do not address whether any other law may require a closed-door discussion in this instance.