Media Law Hotline Question of the Week

By Asya Calixto ~ Prince Lobel Tye LLP

Media Law Hotline 888.428.7490


I am reporting on a Massachusetts town's search for a candidate to fill the position of Town Counsel. The town appointed a committee to screen candidates for the position, and the committee announced that it will meet in a closed session to review and discuss the applications. Can they do this, or must their meeting be open to the public?

Massachusetts law provides that the meeting of a public body to discuss candidates for a job position is, like all meetings of public bodies, presumptively open to the public. If a public body tasks a subcommittee with screening the candidates, however, the law permits the subcommittee, under certain limited circumstances, to meet in executive session. (If a public body chooses to review applications itself, without appointing a subcommittee, it must do so in a public session.) A subcommittee must be comprised of less than a quorum of the public body, and it may only meet in private if the following two conditions are met: (1) the subcommittee’s meeting is a “preliminary screening” and (2) meeting in an open session would have a detrimental effect on obtaining qualified applicants for the position.

The important question is whether a meeting to discuss applications qualifies as a “preliminary screening.” According to the Massachusetts Supreme Judicial Court, a preliminary screening is the process of narrowing applications to a final pool of candidates, which are recommended to the hiring authority. This process can consist of more than one round of selection. For example, it could include reviewing a group of 50 submitted applications, selecting 10 applicants to interview, interviewing those applicants, and then recommending a group of 5 applicants for further consideration. Meetings about the 5 candidates who have passed the preliminary screening must be open to the public.

When does a screening process stop being “preliminary?” Massachusetts courts have been clear that a public body may not shield an entire hiring process under the guise of a preliminary screening, but they have not done much to establish boundaries for the definition of a “preliminary screening.” One court drew the line when a search committee reviewed applications in a closed session and narrowed the pool to just one candidate, which it recommended to its board. In that case, the court came to the unhelpful conclusion that a screening is “preliminary” if there is at least one step that comes before a candidate is offered a position. A meeting in which the final candidate is chosen from the applicant pool is thus not a “preliminary screening” and must be held in open session. In other words, a meaningful hiring decision must be made in public. Just how many candidates must be considered in that decision has not yet been determined.

Even if a meeting qualifies as a preliminary screening, it cannot be held in executive session unless holding the meeting in open session would have a detrimental effect in obtaining qualified applicants. The convenience of the subcommittee, or the greater ease of holding interviews privately and without having to post the meetings, is not a permissible reason to conduct a preliminary screening in private. Public bodies may also try to rely on the fact that candidates have asked that their identities be kept secret so as not to jeopardize their current employment status, or claim that candidates would resist submitting applications if they knew that their employment histories would be discussed in public. Candidates would not be concerned about jeopardizing their employment if they were applying for a position that would not replace their primary employment, and they would not be deterred by publicizing their employment histories if their identities and resumes, LinkedIn profiles, or other information was already available to the public.

Other New England states take different approaches to meetings about candidates for public positions. In Rhode Island, for example, job applications must generally be reviewed in a public session, but discussions involving the applicant's professional performance, character, or health may be conducted in closed session. New Hampshire law requires that meetings about electing or appointing public officers to fill vacancies be held in public session, but allows meetings about the hiring of public employees to be held in executive session.

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