Regional School Committee Failed To Address Earlier OML Concern, This One By Then Chair Herrington
Photo: mass,gov
What has been described as an Open Meeting Law (OML) violation by a member of the Amherst Regional School Committee (RSC) has received attention recently. However, another email that has raised OML concerns was sent one month earlier by former RSC Chair Ben Herrington but has remained out of the public eye and unaddressed by the committee for nearly two months.
In August, Anna Heard, a new RSC member elected in June 2023, stated that she mistakenly hit “reply all” in response to an email from then Chair Herrington asking for input from members about future agenda items. Within an hour, former RSC member Allison McDonald also replied to the full committee expressing her concern that Heard’s email was an OML violation because Heard stated opinions on matters over which the committee has jurisdiction.
A remedy recommended by the Massachusetts Office of the Attorney General is as follows:
“If a public body acknowledges it did or may have deliberated outside of a posted meeting, our recommendation is to acknowledge the correspondence during the next posted meeting, and either read the email aloud during the meeting or explain that the email was sent and then attach it to the minutes for that meeting. This way, a communication that should have been reserved for a posted meeting becomes public.” According to minutes released on August 23, this violation was noted during the August 18 RSC executive session by School Superintendent Mike Morris’ lawyer, although Morris was not addressed on the email that was sent to “RegionalSchoolCommittee@arps.org”. Contacted by the press, Heard acknowledged that she inadvertently hit “reply all” instead of “reply”.
According to emails obtained via records request, Herrington’s email has been handled differently. Herrington, who had been serving on the committee for four years, sent an email on July 14 to the entire committee specifically offering his opinion on a matter within their jurisdiction. He stated that “…it is my opinion that placing Dr. Morris on administrative leave would not be the most appropriate act right now, nor would it be the best course of action for the district as a whole. I recognize that there is significant pressure to do so and that my opinion does not constitute the opinion or direction of this body.” He went on to say “I want to be clear that simply posting and conducting a meeting in executive session to discuss placing the superintendent on administrative leave would send the message, publicly, that we may not support his return, regardless of the outcome of that discussion. And, there could be potentially negative repercussions as a result. I am not saying this to sway the conversation one way or another, but rather to ensure that I have informed this body of the possibility that our actions could cause further turmoil in the district and disrupt operations for some time. That may be necessary, it also may be foolish of us to do.”
Fellow RSC member Jennifer Shiao emailed Herrington directly a few days later, stating “I am concerned that the Regional School Committee is in violation of the Open Meeting Law, due to the email below in which you shared your opinion with the whole committee on whether or not to put the superintendent on administrative leave.” She concluded that “To be a committee with integrity, we need to acknowledge this violation to the public as soon as possible. I would be happy to help however I can.”
Herrington replied nearly a full week later, on July 24, that he had discussed the matter with Marc Terry, the attorney for the school district and the School Committee, and that he would address it at the next RSC meeting. Since that email exchange, the RSC has met three times, including Herrington’s final meeting on August 17 just prior to his resignation effective August 21, but the email and OML concern has never been mentioned or addressed. There had also been multiple calls by the public for the RSC to call a meeting during this interim period. Although he has made several public statements since his resignation, Herrington has not acknowledged the concerns around OML or the implications of the substance of the email. The full text of Herrington’s email can be found further below.
TIMELINE
Friday 7/14
Herrington emails full RSC expressing his opinions about whether the RSC should meet and whether to place Superintendent Morris on leave
Tuesday 7/18
Shiao emails Herrington expressing OML concerns about his email
Monday 7/24
Herrington emails Shiao stating that he had discussed the matter with attorney Marc Terry and would address it at the next RSC meeting
~8/14 – 8/17
Herrington, Demling, and Morris meet to discuss Morris’ resignation
Thursday 8/17
Herrington sends his resignation letter (effective 8/21) to McDonald (Chair of Amherst School Committee). It is unclear whether Herrington’s resignation letter was sent before or after the RSC meeting that same day.
RSC meets to discuss and approve Morris’s separation agreement. No mention is made of Herrington’s email re: OML violation.
Saturday 8/19
Town Manager emails Amherst Town Councilors to notify them of Herrington’s resignation
Monday 8/21
Herrington emails RSC to notify them of his resignation (four days after notifying the McDonald and two days after Town Councilors have been notified by Town Manager)
Wednesday 8/23
RSC meets. No mention is made of Herrington’s email re: OML violation.
Thursday 8/31
RSC meets. No mention is made of Herrington’s email re: OML violation.
Text Of Herrington’s Email That Possibily Violated OML
From: Ben Herrington <herringtonbsc@arps.org>
Date Fri, Jul 14, 2023 at 5:07 PM
Subject: Re: Superintendent’s Return
To: RegionalSchoolCommittee@arps.org
Good Afternoon,
Over the past two days I have received a significant number of emails regarding the return to work of Dr. Mike Morris. Some have been positive and supportive, others have called for Mike to be placed on administrative leave and that we do so via emergency meeting. Many of these emails and inquiries have been based on or have contained inaccurate information. At any rate, I wanted to clarify a few things and then look at next steps.
First and foremost, there has been some confusion around whether Mike Morris is the target of an on-going title ix investigation. He is not, and has not been, the target of that investigation. He will, at some point in the next few weeks, discuss other matters with the investigator who is handling the title ix investigation. He has not been directly cited as the target of investigation.
Secondly, there has been a misconception regarding Doreen Cunningham being placed on administrative leave by the school committee. She was not. The acting superintendent, Doug Slaughter, placed her on administrative leave. She is also not a direct target of a title ix investigation.
I have inquired, on behalf of the school committee, into the timeline of events leading up to the title ix investigation and any related inquiries that have arisen throughout the course of the initial investigation. The specific information requested was 1) What did Doreen Cunningham know and when did she know 2) what steps were taken after reports of wrongdoing went to HR 3) What did Mike Morris know and when did he know?
Today I spoke with Ed Mitnick and Marc Terry about the status of the investigation as well as the status of my queries. I learned that the investigation is, indeed, in its final stages and that the last few interviews would be conducted in the coming weeks, with the title ix investigation being the priority to complete first. Mike Morris will be interviewed sometime during the last week of the month.
All of that being said, it is my opinion that placing Dr. Morris on administrative leave would not be the most appropriate act rightnow, nor would it be the best course of action for the district as a whole. I recognize that there is significant pressure to do so and that my opinion does not constitute the opinion or direction of this body. I will not be available next week, but if the committee decides it would like to meet to discuss this matter, I will support the Vice Chair in posting a meeting as soon as possible. I have full faith and confidence in the Vice Chair’s ability to facilitate such a meeting and will support that to whatever end I can.
I want to be clear that simply posting and conducting a meeting in executive session to discuss placing the superintendent on administrative leave would send the message, publicly, that we may not support his return, regardless of the outcome of that discussion. And, there could be potentially negative repercussions as a result. I am not saying this to sway the conversation one way or another, but rather to ensure that I have informed this body of the possibility that our actions could cause further turmoil in the district and disrupt operations for some time. That may be necessary, it also may be foolish of us to do.
In conclusion, I am asking if folks feel that, with the noted risks,the Regional School Committee should meet in executive session to discuss the possibility of putting the superintendent on administrative leave.
Do not “reply all.” Please email me individually at Herringtonbsc@arps.org and simply state whether or not you believe we should meet next week in executive session.
Thank you,
Ben Herrington
There was plenty of time/ opportunity before Herrington resigned to address his OML violation publicly and the fact that he has now resigned is no reason to ignore the issue now. This issue is bigger than one RSC member and transparency is imperative in order to protect the integrity of the committee and the process itself.
Herrington’s letter clearly shows what some of us have been struggling with all along:
“I want to be clear that simply posting and conducting a meeting in executive session to discuss placing the superintendent on administrative leave would send the message, publicly, that we may not support his return, regardless of the outcome of that discussion and there could potentially be negative repercussions as a result. ” This language really demonstrates what became an unfortunate and common thread in this crisis – that at a time when children were hurt and families were trying to advocate to prevent future harm some members of the RSC seemed primarily concerned with the optics of protecting Mike Morris.
“I am not saying this to sway the conversation one way or another, but rather to ensure that I have informed this body of the possibility that our actions could cause further turmoil in the district and disrupt operations for some time.”
For the Chair to lay out all of the reasons he believes the committee should not do something before asking members to share whether or not they support the idea is exactly how to ‘sway’ a conversation. How could a message like the one Ben Herrington sent not influence the committee? The fact that Herrington stated he was not trying to sway the committee does not actually remove the obvious impact of the opinions he sent to committee members. This kind of narrative-setting has been a distraction from the work of protecting queer and trans kids for months.
I have to wonder if part of the committee’s resistance/ refusal to hold the public meeting so many people were requesting might have been that accountability for this violation would have been a required part of that meeting.
This certainly looks like a violation of OML to me. I wish that the public had the opportunity to be privy to this conversation that looks like it took place privately on email between the school committee. Thank you to Jennifer Shiao for trying to get this out into the open and fighting for transparency.
This looks like a flagrant violation of OML and a failure of the SC to address it over its last several meetings. That is concerning enough. But what is even more distressing is the implication that the RSC was more concerned with protecting Mike Morris than they were with investigating all that had gone wrong at the Middle School and Morris’ contribution to that debacle. The Herrington memo of July 14 helps us better understand all of the times that the RSC refused to act on or even acknowledge requests for action that came from the community.
Herrington wrote:
“I want to be clear that simply posting and conducting a meeting in executive session to discuss placing the superintendent on administrative leave would send the message, publicly, that we may not support his return, regardless of the outcome of that discussion. And, there could be potentially negative repercussions as a result. I am not saying this to sway the conversation one way or another, but rather to ensure that I have informed this body of the possibility that our actions could cause further turmoil in the district and disrupt operations for some time.”
Also, the memo indicates an apparent dishonesty on the part of some members of the RSC who repeatedly berated the public for rushing to judgment about Morris and for not having the patience to wait until the Title IX investigation was complete before raising questions about whether he had acted inappropriately. But Herrington claimed, as far back as July 14, that Morris was not a subject of the Title IX investigation and so apparently knew that the report would neither implicate nor absolve him. Yet the SC stonewalled every call for an independent investigation and disparaged those who made the calls. Herrington wrote:
“First and foremost, there has been some confusion around whether Mike Morris is the target of an on-going title ix investigation. He is not, and has not been, the target of that investigation.”
The article and comments imply that Chair Herrington’s July 14, 2023, email to the School Committees questioning whether he should call an Executive Session based on the information presented may be a violation of the OML. Rather than suggest or state that it may be an OML violation, the writers and/or School Committee member can/should file an OML Complaint Form with the MA Attorney General’s Office, which determines violations and notifies parties with a written response. It well may be a violation, but it would be helpful to know officially .
MLT is on-target here: file a formal OML Complaint.
The same remedy applies if evidence emerges that a majority of the SC coordinated their resignations, but an investigative journalist would need to develop that evidence.
Re the comments above that “the writers and/or School Committee member can/should file an OML Complaint Form”.
I could speculate that Jennifer Shiao didn’t formally file an OML complaint when she read Herrington’s email because she was trying to offer her colleague a way to remedy the situation quickly rather than escalate it by reporting him to the state. The remedy from the text above: “our recommendation is to acknowledge the correspondence during the next posted meeting, and either read the email aloud during the meeting or explain that the email was sent and then attach it to the minutes for that meeting.” Shiao was apparently informed that that would happen. It didn’t. The 30 day window to file has now long elapsed. The public is only learning about it now, almost two months afterward.
Why didn’t other School Committee members file a complaint about Herrington’s email? Why was the response to Herrington’s email so different to that of Anna Heard’s?
The fact that Herrington reportedly discussed his email with the attorney and the attorney’s recommendation was that Herrington “address it at the next RSC meeting” seems to confirm that the attorney agreed there had been a violation. I think we could all agree that the email contained the sharing of an opinion (whether to put Morris on leave), with a quorum of the body, outside of a public meeting.
In addition to the violation itself and the lack of redress, I am concerned by the different treatment brand new RSC member Anna Heard’s email has received vs that of experienced member Ben Herrington’s. Heard’s (accidental reply-all) has been written about in the papers, and was used by Morris as leverage to secure a golden parachute, threatening a lawsuit. (Even when attorney Marc Terry apparently said, in his legal opinion, that Heard’s email did not represent legal liability to the district, it was still pushed by one/some SC members as reason for giving Morris 10 months pay.) Perhaps I missed it but I don’t recall residents responding to the coverage of Heard’s email that a formal complaint needs to be filed before making accusations.
Although the Massachusetts Office of the Attorney General suggested a remedy for Heard’s inadvertently hitting “reply all” to her email, the remedy may or may not necessarily apply to Herrington’s email, as Heard’s “reply all” opens up the opportunity for deliberation, among members, outside a posted public meeting. The AG’s office recommended the following:
“If a public body acknowledges it did or may have deliberated outside of a posted meeting, our recommendation is to acknowledge the correspondence during the next posted meeting, and either read the email aloud during the meeting or explain that the email was sent and then attach it to the minutes for that meeting. This way, a communication that should have been reserved for a posted meeting becomes public.”
The two emails appear to be legally somewhat different, as Herrington was the Chair and provided background information as to whether or not the Committee wanted an Executive Session, not an open meeting, to be called to discuss the possibility of putting the Superintendent on administrative leave. No deliberation was suggested or occurred outside a public or Executive meeting. Any deliberation would take place in Executive Session. In his background information to determine the need for an Executive Session, Herrington stated that his “opinion does not constitute the opinion or direction of the body,” nor should what he said, “sway the conversation one way or the other.” Herrington then states, “Do Not Rely to All”, which rules out deliberation. He also says, “Please email me individually at Herringtonbsc@arps.org and simply state whether or not you believe we should meet next week in executive session.”
It appears that in Heard’s case the AG’s Office was notified and a suggestion was received for a remedy. The same could have been done with Herrington’s email. Since these two incidents appear to have differences, again, rather than suggest or state that it may be an OML violation, an OML Complaint Form should have been filed with the MA Attorney General’s Office, which determines violations and notifies parties with a written response.
Note: Several years ago, complaints were filed with the AG against the School Committee by School Committee members who questioned whether or not the Committee had violated the OML. AG Responses were received and shared with the public. The process works.
I appreciate the diligence and careful detail in this reporting by Maria Kopicki. These 2 emails were treated differently and it’s unclear why. I do agree that it would be helpful for someone to file an Open Meeting Law complaint with the state considering this troubling email from the chair. I see a lot of opinions in it. An OML filing and response will create some clarity and guidance for school committee members-past and present. I don’t see any obligation on the reporter’s part to file an OML though; an awkward move to go from news reporter to news maker.
Reached by email, the current Chair of the RSC confirmed that to date, no OML complaint has been filed regarding the Heard email. The Attorney General has neither investigated nor rendered an opinion about RSC member Heard’s August 14 email. The Attorney General’s language that is quoted is its general recommendation regarding any OML violations. Had an OML complaint been filed, it would first go to the public body itself, in this case the RSC. Only if the complainant is unsatisfied with the response of the public body could the Attorney General’s office be asked to rule on the complaint.
Regarding the Herrington email, the Attorney General’s office provides this guidance about the expression of a member’s opinion via email to a quorum of a public body:
“Communications between and among a quorum of a public body on matters within the jurisdiction of the public body must occur during a noticed meeting. G.L. c. 30A, §§ 18, 20. A public body member may lawfully email a quorum of the public body only to discuss scheduling a meeting, distribute a meeting agenda, or to distribute reports or documents to be discussed at a meeting, provided that no opinion of a member of the public body is expressed. See G.L. c. 30A, § 18.”
Former Chair Herrington did not call a meeting of the RSC until a month after being notified about the OML concern. When the RSC did meet, the OML concern was not on the agenda and Herrington did not address it as he had indicated would happen in his communication with Shiao.
Open Meeting Law complaint information can be found at https://www.mass.gov/info-details/frequently-asked-questions-about-the-open-meeting-law#frequently-asked-questions-about-complaints- and https://www.mass.gov/files/documents/2019/07/15/OML%20Complaint%20Form%202019.pdf.
Thank you Maria for your thorough research and information on the OML process. Very helpful. It appears that since no AG opinion was sought for either Heard or Herrington’s emails, it is not clear that either one of them officially violated the OML.
Since OML complaints have been filed against the SC in the past, today, if any member(s) believe(s) that one of their members seriously violates the OML, an official complaint should be filed. That ends speculation.
The issue of whether Herrington put Shiao’s OML concern on the agenda and did not address it, as he had indicated would happen in his communication with Shiao, is separate from whether or not the email itself was an OML violation, since no compliant was filed and therefore no remedy recommended.
Well, as Janet McGowan & Marylou Theilman noted above, if someone wants finality on the issue, they can file an OML complaint. In the meantime, folks will feel free to form their own opinions.
(It occurs to me that an OML complaint could be filed whether one believes there was OML or not, to get an opinion — sort of the equivalent of a declaratory judgment action.)