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School Committee duo cleared after open meeting law complaint

by | Feb 16, 2022 | Education, Featured: Education

In a special meeting of the School Committee on Tuesday night, members Joe Markey and Meg Tyler were cleared of an allegation brought forth at the Feb. 3 meeting that they violated open meeting law by holding a Zoom meeting on Jan. 30 regarding the district’s mask policy with a resident who is considering running for the committee.

Resident Lori Nickerson filed the complaint with the state’s attorney general’s office on Jan. 31, the day after the alleged violation occurred. In her statement, Nickerson said that Markey and Tyler participated in a Zoom conversation with resident Christopher Melton. Nickerson said it was in violation of open meeting law because “the purpose of the Zoom meeting was to discuss and deliberate strategy regarding upcoming School Committee business.”

A quorum of three School Committee members was not present during the Zoom call in question, so that did not constitute a violation, according to the attorney reviewing the case. However, some of the correspondence between members did shed light on the use of social media by those in public office and how conversations on a broad topic could be perceived by some to be more specific in nature.

Superintendent Carol Cavanaugh led an investigation of the matter after the committee voted unanimously that she do so. She had 14 business days from the date of receipt of the complaint to respond to the inquiry, and the response is due to the AG’s office by Friday.

She said she compiled “all digital and electronic correspondence” made by Markey and Tyler, including emails, texts and social media posts that included the topics of masking and off-ramping from the mask mandate. The superintendent noted that both Tyler and Markey “very willingly” sent all information requested to the central office for review.

All School Committee members were given a list of questions to answer by legal counsel, the superintendent added, and everyone complied with responses.

On Feb. 1, School Committee Chair Nancy Cavanaugh and the superintendent met with attorney Nancy Campany for guidance before the School Committee meeting during which the complaint was raised.

“It’s my hope that in transparently sharing the process that we have in the information here tonight that will put to rest any concerns from the public regarding our compliance with the open meeting law as a committee,” the chair said. She noted that it will show that the committee has “taken some steps to rebuild the faith in the process that we use here.”

After analyzing the information and the complaint, Campany said there was no violation because there were only two committee members present.

“One thing I want to make clear is that there is no prohibition in the open meeting law and members communicating about committee business with members of the public,” Campany stressed. She said that meeting with a citizen is “perfectly regular and usual,” and that communicating with people is a part of their role as members.

A violation could also occur if two members asked a person to express their thoughts to another committee member, according to Campany.

“Based on the Zoom meeting itself, it doesn’t appear in and of itself that there was any open meeting law violation in that,” she said.

However, the Facebook posting about the Zoom meeting by Melton raised the question of whether it was an attempt to communicate the views of Tyler and Markey to other committee members. Campany said that it is a closed Facebook page, and no members of the committee are members of that group, which she did not name.

Campany said that no committee members viewed Melton’s post. Markey and Tyler told her that they were not aware that Melton intended to quote them on Facebook.

She noted that one of the things the AG’s office will look for is intent. Based on her analysis, she saw no intent in either the Facebook post or the Zoom to communicate opinions to other committee members.

“But we do have to note that sometimes the attorney general has had determinations where they’ve said that, to the extent of the inquiry that is made, if other information comes to light that that might suggest that there have been deliberations outside of a public body, they should take steps to remedy those situations,” Campany continued.

She noted that “some communications may constitute unintentional deliberations.” There could be incidental comments made that might appear to be potential deliberations. There were brief text messages between Markey and Tyler as well as Markey and Nancy Cavanaugh on the topic of the school mask policy.

Campany recommended that the information from the conversations be read into the record for the sake of transparency. She also suggested that the committee members undergo additional training about the open meeting law. It appeared that there was some unfamiliarity about the way the attorney general interprets open meeting law, which Campany said “becomes more and more detailed every day.”

She provided a draft of a response to the complainant and the draft cover letter to the attorney general, which the committee reviewed during the meeting and approved unanimously. In the letter, it was stated that all communications would be made public.

Tyler said she liked the idea of doing an open meeting law training, and Nancy Cavanaugh agreed.

Markey said that any emails that were of possible concern should be read aloud to make them public record. He also volunteered to summarize his conversation.

“One of the things that we have always put forward as a committee is transparency,” Nancy Cavanaugh said, noting that this issue has been “awkward” for everyone involved.

All the texts and emails were read aloud by the attorney to be captured as part of the public record. The exchange between the chair and Markey were regarding putting the potential off-ramping option on the agenda for the Feb. 3 meeting and a wording change of the agenda post.

Tyler and Markey provided copies of the same text exchanges about a news story on calls to unmask children. Markey asked how to get people “off Facebook and into meetings” to discuss their opinions on the topic. Tyler also mentioned the vote on the school calendar, and Markey shared a link to a letter to the editor.

Markey also sent an email as a parent to members of the Board of Health, the superintendent, the chair, and Town Manager Norman Khumalo about the possibility that the testing of students upon their return to school on day six after having COVID-19 may have legal ramifications.

These communications, when taken together, “could potentially create an issue with the open meeting law,” Campany said. However, they are now a part of the public record, which should mitigate that argument.

Markey and Tyler read summaries of their conversations during the Zoom about the school masking issue. Markey noted that other people were invited to the Zoom, but only Tyler and Melton attended.

“I gathered this from [Melton’s] response and stories: people are afraid to speak up,” Markey said, noting there was a drop in emails received to the School Committee during this period.

Markey talked about “the deterioration of social norms” caused by the pandemic and the polarization that has resulted. He added that people should write letters and attend meetings, which he encouraged Melton to do “because it does make a difference.”

“I don’t respect that some members of our community who disagree with others’ opinions are slipping into incivility,” he continued. This behavior may make others afraid to speak out on issues in which they have strong opinions.

“Fortunately, I have the courage and fortitude to speak up for what I think is right for students, teachers and schools,” Markey went on, “while others engage in what I consider to be petty behavior.”

Tyler said the nature of the Zoom conversation was casual.

“I would just ask us all to be more careful about using social media,” she added, “and believing what we read on social media without consulting the sources themselves.

“All of a sudden, we were publicly condemned and harangued, and the inquiry had not even begun yet,” Tyler continued. “And I think that was very hurtful for both of us.”

She also asked the committee to consider having an “absolute moratorium” on its members using Facebook.

The School Committee will hold its regular meeting on Thursday.