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SECTION VII: EXCEPTION 3
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 governmental body to conduct strategy sessions in preparation for negotiations with non-union personnel, and to conduct collective bargaining sessions or contract negotiations with non-union personnel.
Amendments to c.39, s.23B in 1985 and 1988 expanded this exception so that it applies to contract negotiations with non-union personnel as well as collective bargaining sessions. The amendments came in response to several cases which recognized that open and public employment contract negotiations with non-union personnel may be detrimental to a governmental body's bargaining position.
Prior to the amendments, in Attorney General v. School Committee of Taunton, 7 Mass. App. Ct. 226 (1979), it was held that a school committee could hold an executive session under this exception to discuss salaries of various non-union employees. This was so despite the fact that the employees were not involved in a collective bargaining unit. The court stated that, "there was evidence...that the committee was engaged in active negotiations with...[three unions], and that a decision had not been made with respect to the salary proposals that would be offered to the bargaining representatives of these groups. There was ample evidence to support the conclusion that the factors involved in the setting of the salaries for the non-union personnel could, if known to the union groups, have an effect on the wage packages that would be detrimental to the ongoing collective bargaining discussions with those groups."
In District Attorney for the Northwestern District v. Board of Selectmen of Sunderland, 11 Mass. App. 663 (1981),a governmental body met with department heads to discuss the salaries of non-union employees. An executive session was held purportedly under the "collective bargaining" exception. In distinquishing this case from the Taunton case, the Appeals Court noted that at the time of the executive session, there were no collective bargaining negotiations pending and, in fact, no employees under the authority of the governmental body who were members of a collective bargaining unit or represented by collective bargaining agents. It can be seen from these cases that executive sessions to discuss strategy with respect to collective bargaining with union personnel can only be held if a governmental body can establish that an open meeting will have a detrimental effect on the bargaining position of the governmental body.
The 1988 amendment expressly included "strategy sessions in preparation for negotiations with non-union personnel."
"Collective bargaining sessions" under this exception encompasses not only negotiations leading to a collective bargaining agreement, but also the resolution of grievances pursuant to a collective bargaining agreement. Ghiglione v. School Committee of Southbridge, 376 Mass. 70 (1978). It is important to note, however, that when the grievance involves the consideration of the discipline or dismissal of an employee, the personal rights given to an employee under Exception 2 apply and take precedence over the more general "collective bargaining" exception. Bartell v. Wellesley Housing Authority, 28 Mass. App. Ct. 306 (1990).
In one instance, the Appeals Court upheld a ruling by the State Labor Relations Commission that the failure of a governmental body to agree to negotiate with collective bargaining agents in executive session, over the objection of the bargaining agents, constituted a failure to negotiate in good faith. Selectmen of Marion v. Labor Relations Commission, 7 Mass. App. 360 (1979).
The collective bargaining and litigation exceptions recognize the fact that public officials might be unduly hampered in the performance of their duties if all gatherings of such bodies were required to be open to the public. Ghiglione v. School Committe of Southbridge, 376 Mass. 70 (1978).
Regarding litigation, the exception deals with strategy meetings concerning ongoing litigation, and permits executive sessions in those circumstances where a governmental body can properly anticipate a legal challenge to its proposed action as a result of a threat of a specific lawsuit. Doherty v. School Committee of Boston, 386 Mass. 643 (1982). Once again, an open meeting must be shown to have a detrimental effect on the litigating position of the governmental body.
The litigation exception is not synonymous with the attorney-client privilege. The Supreme Judicial Court has rejected a claim that the open meeting law does not apply to a private meeting of a governmental body with its attorney. Unless such a meeting falls within a specific statutory exception to the open meeting law, such discussions must be held in open session. District Attorney for the Plymouth District v. Board of Selectmen of Middleborough, 395 Mass. 629 (1985).
