An Open Meeting Law complaint was filed last week against Cambridge School Committee member Elizabeth Hudson, challenging her frequent practice of emailing her thoughts and reactions and information to the cpsparents email list. By Friday, Hudson had removed herself from the list.
The list is a 1,500-subscriber group intended to “provide a forum for discussing issues that affect” and “exchanging information across” the Cambridge Public Schools. It was founded in 2011 and maintained since 2012 by parent Jesse Nahan. It is not sanctioned by the school department.
The complaint was filed by Isabella Ehrlich, a mother of four students in the schools and an outspoken list member. In her complaint, Ehrlich writes:
“Elizabeth Hudson consistently opines on the deliberations of the School Committee on this list. I questioned whether these deliberations were accessible to all caregivers in the District and got extensive pushback on asking the question. I found Member Hudson’s response dismissive. Our District is extremely diverse – socioeconomically, racially and culturally. Limiting deliberations to a subset of our District violates the OML.”
In the remedy section, Ehrlich asks:
“I would like the City to review whether this List Serv is an appropriate vehicle for deliberation by a quorum of School Committee members. If the discussions violate the OML, I would like the School Committee members to be advise on what the appropriate use of list-servs and social media might be. If they are in violation of the OML, I would like the SC members to be prevented from using this exclusive list-serv as a means for deliberation.”
The complaint was filed Thursday, Hudson said. At the time, there were four committee members on the list, according to Nahan. Four constitutes a quorum of its seven members, so the situation has the potential to raise Open Meeting Law issues.
Hudson initially said on Thursday that she would refrain from using the email group for future discussion; by Friday, she decided to remove herself, explaining: “I have already had ample opportunity to weigh in, opportunity that I have embraced. There is no longer a quorum on the list with myself removed, and with that roadblock removed, other committee members are able to weigh in as they please, without fear of generating other complaint.”
OML and its application
The application of the Open Meeting Law to this circumstance is not entirely clear. It defines “deliberation” as communication “between or among a quorum of a public body on any public business within its jurisdiction,” with exceptions such as scheduling.
The Massachusetts Attorney General’s Division of Open Government, which administratively adjudicates Open Meeting Law complaints filed with it, offers guidance on its website that would discourage school committee members (plural) from participating in discussions:
“Where a quorum of the members of a public body subscribe to a listserv, the public body risks unlawful deliberation. Where a quorum of the members of a public body belong to a listserv, public body members cannot participate in discussions which involve subject matter within the jurisdiction of the public body without engaging in unlawful deliberation.”
The attorney general’s Open Meeting Law guide also says, “Note that the expression of an opinion on matters within the body’s jurisdiction to a quorum of a public body is a deliberation, even if no other public body member responds.”
On the other hand, in September of this year, the attorney general reviewed an Open Meeting Law complaint filed against Brookline’s Town Meeting Advisory Committee and reached a different conclusion. The complaint concerned members of the advisory committee posting opinions on a private email group open only to Town Meeting members and moderators.
The attorney general found no violation of the Open Meeting Law in the Brookline case, despite being a closed email group (which “raises concerns that conversations may be happening outside of public view,” the attorney general said), and even though some posts to the email group related to a matter within the jurisdiction of the committee, because “we find no evidence that the posts involved communication directed to a quorum of the Committee, or that a quorum of Committee members responded to the posts of other members.”
The result is that the attorney general’s Brookline determination muddies the waters of what had previously been relatively clear guidance. There’s a good argument that it supports Hudson’s past practice.
Ehrlich’s position
In an interview, Ehrlich said that she was concerned, particularly in light of the potential closing of the Kennedy-Longfellow School in East Cambridge, about “Who has a seat at the table to discuss their child’s education? Who gets access to the people making decisions? Who gets to participate in the conversation? Who has access to technology to be able to access this listserv?”
The Open Meeting Law process involves filing a complaint with the School Committee, as Ehrlich has done, and waiting for its response. Ehrlich then would have the option to pursue her complaint by filing it with the attorney general, or, with two other registered voters, by filing an action in the Superior Court.
But Ehrlich says she won’t do that: “I’m just asking the question,” she said. “I don’t have a question with regard to the matter of law of the Open Meeting Law for the Commonwealth of Massachusetts. I have questions about access to information in a very diverse city and who gets to have a seat at the table.”
“The outcome that I would like is that if the school committee finds that the listserv is an appropriate means to disseminate their information, that they do that and they’ve made that decision.”
Ehrlich said she wants to see what position the School Committee will take, and would accept it without pursuing it with the attorney general or the court system.
Ehrlich said that she agreed with Hudson that “more discussion is better,” but that the cpsparents discussion is “only available to a privileged group – just because it’s there doesn’t mean that it’s fair.”
Ehrlich said that “so many” parents who attend School Committee and school council meetings aren’t technologically privileged enough to subscribe to the cpsparents email group and that isn’t fair.
Hudson responds
Hudson said she understands that “we don’t currently have a perfect platform for communication – where perfect means we reach everybody that is potentially implicated or has knowledge and experience.
“We don’t have that. Nobody has that. The question is, do we want to try to take what we have today and make it better? Or wait for that?
“This is a public listserv, that anybody can join, but not everybody knows about. And it’s only in English,” Hudson said. “If you believe that not every parent is on there, forward it to them! We’ve got two choices at that point: Take what we have and let’s make it better; or we can say, ‘let’s stop all communication here until we have the idyllic platform.’”
“This will absolutely have a chilling effect” on committee communications, Hudson said, saying that there are far more important conversations to be had about the schools than whether “two wealthy white women disagree.”
Ehrlich proposed in her interview that the School Committee could vote to designate two members, less than a quorum, to read and reply to messages on the cpsparents list, and those members could change quarterly.
Hudson responded skeptically, but said that by removing herself from the email group Friday, “this should be a great way to test the remedy that was suggested earlier. I am voluntarily adhering to the remedy that the parent requested of the city, and I stand ready to be corrected if it turns out that this really leads to better outcomes.”
Hudson said that she has received zero suggestions on how to improve communication, and implored parents to email her directly or telephone her with ideas. She is the chair of the communications subcommittee of the School Committee, she said, but “nobody has done that!”
Nolan support for Hudson
On Thursday evening, after Hudson announced her pause to the email group, city councillor Patricia Nolan sent an email to the list discussing the policy issue of school choice that had been a hot topic on the list with news of the potential Kennedy-Longfellow closing.
Asked to explain her public participation on the list, Nolan said she was lending her expertise as a former School Committee member, and further wrote:
“I don’t have a vote and am never seeking to deliberate. The OML is about deliberation, not communication. In my opinion, it would be a terrible precedent to decide that [a School Committee] or [City Council] contribution to a listserv when it is in the service of information sharing and providing a perspective on an issue is a violation. Elected [official]s can provide information without deliberating. What is not allowed would be to have a quorum of the SC be directly deliberating on the listserv. From what I have seen, that does not happen.”
According to Nahan, Nolan is the only councillor in the email group, so she does not risk running afoul of the OML there. On the other hand, Nolan was actively involved an email discussion Friday on the Porter Square Neighbors email group, and it’s not clear how many of the nine councillors are subscribed there. But it is not rare to see some city councillors sending emails to neighborhood email groups.
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It is inaccurate to say that there had been “relatively clear guidance” that Hudson’s participation violates the OML. The only thing in the FAQs that supports an argument that Hudson’s participation violated the OML is one line: “Where a quorum of the members of a public body belong to a listserv, public body members cannot participate in discussions which involve subject matter within the jurisdiction of the public body without engaging in unlawful deliberation.”
A few points about that. First, that phrase doesn’t actually provide “clear guidance” that Hudson’s practice (or Nolan’s) violates the OML. That phrase – as sloppily written as it is – likely refers to discussions BETWEEN committee members on a listserv – not discussions with the public directly, like Hudson’s posts have been. The Brookline decision makes clear that the AGO is concerned about committee members using a listserv to deliberate between each other – responding to each other’s ideas, proposing new ones, etc, outside of the public view.
Second, it’s understandable that a casual reading of the phrase “participate in discussions” might lead the reader to conclude that there’s clear guidance that Hudson’s participation on the listserv violates OML. But the the FAQs are not the law, nor are they even formal regulations. They’re written by AGO staffers interpreting the OML (which says nothing about email listservs!) without the benefit of actual facts and circumstances of an individual case. The AGO recently made clear that it is the intent of the speaker – Hudson – that matters. If the speaker is trying to deliberate WITH other committee members in a listserv, then it could violate the OML. That has never been Hudson’s intent: she has been engaging with the public about important issues.
Hudson’s participation with the public presents a stark contrast with ANY other school committee member (Harding, R. Weinstein, D. Weinstein, Hunter, Rojas Villarreal). They may avoid public scrutiny by avoiding a large, inclusive parent listserv, but they should all be asking themselves why they deserve to remain in their seats given their lack of any serious engagement with the public. Even today, not a single member other than Hudson has explained why they fired (or voted not to fire) Superintendent Greer.
Just to be clear, here is what the AGO said when it had an actual case before it on similar facts (and with a listserv that was NOT open to the public, unlike the parent listserv): “Posting to a Listserv that includes a quorum of members of a public body is not in and of itself a violation of the Open Meeting Law.”
It’s scary to think one parent can shut down open dialogue just because they don’t like what Hudson has to say.
Do we think Elizabeth Warren’s posts on X are ‘deliberating’ with other senators?
I’m pretty sure at least 51 of them have accounts, whether they post regularly or not. It requires the ‘technological privilege’ of an email address to get an X account… and I don’t personally have one, does that mean it’s -wrong- for her to post on X because I, her constituent, can’t see it? Should I file an ethics complaint?
I just realized some people in Cambridge might take my comment seriously. The answer to my question is: No. That would be ridiculous.
Weaponizing the Open Meeting Law to decrease public awareness of the views of members of the School Committee is good governance gone bad.
The CPSD Parent email list probably informs more people about CPSD issues than School Committee itself, although everyone will be less informed now.
What does “technologically privileged” mean here? Unfamiliar with this list-serv but I am going to guess having an email address is enough. If so, have we lost our minds…