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SECTION VI: EXCEPTION 2
2. To consider the discipline or dismissal of, or to hear complaints or charges brought against, a public officer, employee, staff member, or individual, provided that the individual involved in such executive session pursuant to this clause has been notified in writing by the governmental body at least forty-eight hours prior to the proposed executive session. A governmental body shall hold an open meeting if the individual involved requests that the meeting be open.
Like the first exception, this provision is designed to balance privacy rights of individuals and the public's right of access.
It is to be noted that the ultimate say on whether the meeting is to be in executive session or an open hearing, lies with the individual whose discipline or dismissal is to be discussed. If the individual requests that the meeting be public, the governmental body proposing an executive session must comply with that request.
A variation from this general rule is found in G.L. c.71 s.42. That section permits the dismissal of teachers and superintendents by school committees and provides that hearings under the statute, "may be either public or private at the discretion of the school committee." The Appeals Court has held that the specific terms of G.L. c.71 s.42 override the general provisions of the open meeting law. Kurlander v. School Committee of Williamstown, 16 Mass. App. Ct. 350 (1983). Section 42D of Chapter 71 vests similar discretion in a school committee for hearings relating to suspension of teachers and superintendents.
It should be noted that lesser forms of discipline not amounting to suspension or dismissal, and not falling within the express provisons of the relevant portions of Chapter 71 of the general laws, are governed by the Open Meeting Law, and can be required to be open by public school employees who are the subject of disciplinary hearings by school committees. William O'Malley, District Attorney and William Paolino v. Plymouth-Carver Regional School Committee. Plymouth Superior Court Civil Action Number 85-2191B (December 11, 1985). It is to be remembered that the provisions of Chapter 71 relate only to school committees and no other governmental body.
In summary, the discipline exception to the open meeting law exempts disciplinary action against public employees to protect both the individual's reputation, and the interest of the public in maintaining efficient personnel management and employee morale. Doherty v. School Committee of Boston, 386 Mass. 643 (1982).
