AYER -- As selectmen met last Tuesday night, Vice Chairman Gary Luca asked town counsel Mark Reich if an individual request of town counsel becomes a public record.
At issue was Luca's having sought a legal opinion as an individual selectman two years ago, when the Ayer and Shirley school districts were in the process of regionalizing.
Luca made the request, he said, because he was troubled that, upon the formation of the regional school district, the district's school committee elected not to accept the provisions of Massachusetts General Law (MGL) that entitle public employees to surviving spouse health benefits.
The decision by the regional school committee not to accept the provisions was purportedly made because the former Shirley school employees had not received surviving spouse benefits.
Luca's request of town counsel for a legal opinion and his subsequent distribution of that opinion to his fellow selectmen last month, raised the hackles of his colleagues.
The result, according to Luca, was an email sent to all five selectmen on June 26 "mentioning the fact that I released this (opinion) letter and wondering if I should have."
In retrospect, he said, "I shouldn't have done it, I guess."
"I am aware that this opinion and its subsequent use have caused some controversy and concern," Reich responded. He said that his law firm, Kopelman and Paige, tried to be very respectful and responsive, and do its work through the board chairman and town administrator.
The request, he acknowledged, did come from a single member, "but once a single letter is generated, under public records law it becomes public unless marked confidential. Then it would go into executive session or a mechanism for shielding it from disclosure.
"A general opinion letter such as this is public record subject to disclosure, so it is not a violation of OML or public records law, even without a vote from the board," he said.
Potential conflict of interest
"As to any mention of a conflict of interest, that was something we were not aware of," Reich offered, in reference to an earlier comment suggesting that Luca has relatives who would benefit from the restoration of former Ayer teachers' surviving spouse health benefits.
An individual is responsible for his or her own concerns and conduct under the conflict of interest law, and unless an immediate family member would be directly affected by the legal opinion, then the request does not constitute a conflict of interest, Reich explained.
He cautioned, however, that if an individual's action gave the appearance of impropriety, a disclosure could be filed. If there is a potential conflict of interest, he suggested that the individual recuse himself and leave the room so as not to influence the conduct of the meeting regarding the issue.
"But that requires the individual to determine if he has a conflict of interest. It is difficult for the board as a whole to make that determination," he said. "The board has no punitary powers."
Reich said that he could not comment beyond that, but that he would be happy to discuss the content of the letter.
Conley stated that once the legal opinion of town counsel was disseminated by Luca, the school district sought its own legal opinion. She admitted that as soon as she saw the letter in late June, she immediately contacted the school committee chair, a move that rankled some of her fellow board members.
She then asked Reich to tell the board what he had told her about the matter during a discussion they held with the town administrator the previous Friday.
He responded that he had not seen the school district's legal opinion, but that its opinion would also be subject to OML.
Selectman Chris Hillman asked Reich why it was that his law firm had deviated from standard practice and offered a written legal opinion requested by a lone selectman.
"It was an effort to accommodate a selectman," Reich replied.
Luca noted that he was the board chairman at the time of his request.
"It was brought up to the superintendent two years ago by me. That's when I had a number of school department employees who questioned whether it was right or not that they lose their benefits," Luca explained.
"There were a number of issues being dealt with when the town joined the region," Reich added.
The school district's response
Ayer Shirley Regional School District Superintendent Carl Mock offered that the school district does not have a written opinion on the matter.
"We made contact with legal counsel, who reviewed this opinion and advised me as to his familiarity with the case that was cited. If we want a formal written opinion it would require further research on his part," he said.
Mock stated that the school district had reviewed its legal counsel's opinion during the transition year following regionalization, at which time the school committee reviewed 32B regarding various forms of insurance benefits for regional school district employees.
"It has come up since in the context of negotiations and we have gotten verbal advice again," he stated.
"If we do get a written opinion, they are likely to be two different opinions, but we do not have a formal written opinion."
The legal opinion
Luca's initial inquiry was with regard to whether the law affords former Ayer school employees any right to the continuation of surviving spouse health benefits, despite the fact that the regional school committee did not accept the provisions of G.L. c. 32B, section 9D.
Section 42B of G.L. c. 71 establishes the rights of employees in a regional school district. According to the June 13, 2013, opinion letter written by Kopelman and Paige Attorney David Jenkins, the relevant portion of that statute says, in part, that "any school personnel who have professional teacher status ... whose positions are superseded by reasons of the establishment and operation of a regional school district, shall be employed with the same status by the regional school district."
In the letter, Jenkins cites a case in which the plaintiff, who was transferred to a district-wide vocational high school, worked until retirement in a district that had not voted to extend the same retiree health benefits to its employees.
In that case, a Massachusetts appellate court emphasized that section 42B did not place any limitations on which benefits survive the transfer between employers, and the court held that such a contribution to health insurance premiums was a form of compensation, and also of terminal compensation.
"The same analysis holds true for entitlement to surviving spouse health benefits granted to former employees of the Ayer School Department," the letter concludes.
Jenkins said that in light of the precedent set in the case, it is his opinion that former employees of the Ayer School District now employed by the Ayer Shirley Regional School District are entitled to surviving spouse health benefits under G.L. c. 32B, section 9D.
"The cost of those benefits is to be borne by the Regional School District," he said.
A subject for further discussion
Pontbriand suggested that the issue be addressed at a school committee meeting, and that it would be ill advised and poor form to discuss the opinion without the presence of the entire school committee.
School committee member Dan Gleason stated that collective bargaining is under the purview of the school committee, and that the selectmen's meeting, at which the school committee was not fully represented, was not the forum for such a discussion.
He reminded the board that, until an employee is actually deceased, no benefit is accrued. "So no one has lost anything until someone is actually deceased."
Conley suggested that the issue be discussed at a future joint meeting with the school and finance committees.