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15-P-936                                              Appeals Court

  THREE REGISTERED VOTERS      vs. BOARD OF SELECTMEN OF LYNNFIELD
                               & another. 1


                              No. 15-P-936.

            Essex.       March 9, 2016. - August 12, 2016.

               Present:    Cypher, Cohen, & Neyman, JJ.


    Open Meeting Law.      Municipal Corporations, Open meetings.


     Civil action commenced in the Superior Court Department on
January 5, 2015.

     A motion to dismiss was heard by Robert A. Cornetta, J.


     Michael C. Walsh (David E. Miller with him) for the
plaintiffs.
     Thomas A. Mullen for the defendants.


     CYPHER, J.      The plaintiffs, three registered voters

(voters) 2 in the town of Lynnfield (town), appeal from the

dismissal in the Superior Court of their complaint alleging that




     1
         The town administrator of Lynnfield.
     2
         Ryan Collard, David Miller, and Michael Walsh.
                                                                  2


the board of selectmen of Lynnfield (board) 3 violated the open

meeting law, G. L. c. 30A, §§ 18-25, in the selection process

for appointing several municipal officials.    The voters argue

that the board violated the open meeting law by (1) failing to

give proper notice of the meeting at which the new town

administrator was appointed; (2) failing to properly process

their complaint; and (3) failing to interview and to deliberate

on applicants for the town administrator position in an open

meeting.    We affirm the dismissal of the complaint.

     This case appears to be the first under G. L. c. 30A,

§§ 18-25, to reach an appellate court.    This new statute,

inserted by St. 2009, c. 28, § 18, 4 was a significant revision of

the former open meeting law, G. L. c. 39, §§ 23A-23C, which was

repealed by St. 2009, c. 28, § 20.    Therefore, we briefly

summarize provisions of the new law as relevant to the present

case.

     The open meeting law continues to "manifest[] . . . a

general policy that all meetings of a governmental body should

be open to the public unless exempted by . . .

statute."    Attorney Gen. v. School Comm. of Taunton, 7 Mass.


     3
       Specifically, chair David Nelson, vice-chair Phil
Crawford, and Thomas Terranova, as they are or were members of
the board.
     4
       Unless otherwise noted, we refer to this version of the
statute.
                                                                    3


App. Ct. 226, 229 (1979).   Section 20(a) of the open meeting law

declares that "all meetings of a public body shall be open to

the public," and § 20(b) states that a public body "shall post

notice of every meeting at least 48 hours prior to such

meeting."   G. L. c. 30A, § 20, as appearing in St. 2014, c. 485.

     Section 19(a) of the new law established a division of open

government in the office of the Attorney General and provided

her authority pursuant to § 25(a) to "promulgate rules and

regulations to carry out enforcement of the open meeting law," 5

and authority pursuant to § 25(b) to "interpret the open meeting

law and to issue written letter rulings or advisory opinions

according to rules established under this section."

     Of particular significance in the present case, § 23(b) of

the new law provides a procedure for the prompt review of

allegations that a public body has violated the open meeting law

and for bringing the complaint to the attention of the Attorney

General.

     Procedural background.   Plaintiff Michael Walsh, a resident

of the town, submitted a complaint dated December 2, 2014, to

the board, alleging a pattern of violations of the open meeting

law in the appointment process for several municipal positions,

centering his complaint on the board meeting on November 3,

     5
       Comprehensive regulations now appear at 940 Code Mass.
Regs. §§ 29.00 through 29.09 (2010) and 940 Code Mass. Regs.
§ 29.10 (2011).
                                                                    4


2014, where it voted to appoint a new town administrator to

replace the administrator who was retiring.   Walsh, following

the procedure stated in G. L. c. 30A, § 23(b), 6 timely submitted

his complaint to the board, attached to the Attorney General's

open meeting law complaint form.   The town administrator, acting

for the board, referred the complaint to town counsel, who

reviewed the complaint and within fourteen days sent a detailed

analysis and his findings to the Attorney General, with a copy

sent to Walsh.   Town counsel determined that the board did not

violate the open meeting law and concluded that no remedial

action was necessary.

     There was no response from Walsh until, acting with the two

other plaintiffs and following the alternate procedure in G. L.

c. 30A, § 23(f), 7 the voters filed a complaint in the Superior

Court on January 5, 2015, seeking injunctive relief, and a short

order of notice issued.   The voters also subpoenaed records and

the testimony of town officials.



     6
       Section 23(b) states in relevant part that a complainant
is required to file a "written complaint with the public body
[within 30 days of the alleged violation], setting forth the
circumstances which constitute the alleged violation and giving
the body an opportunity to remedy the alleged violation . . . .
The public body shall, within 14 business days of receipt of a
complaint, send a copy of the complaint to the attorney general
and notify the attorney general of any remedial action taken."
     7
       Section 23(f) provides that "3 or more registered voters
may initiate a civil action to enforce the open meeting law."
                                                                   5


     We pause here to note that we are unable to determine from

the record why there was no response to town counsel's analysis

and findings from Walsh, whose abrupt change of course, not

explained by the parties, appears to have been an abandonment of

the procedure set in motion by his complaint to the board.

While there is nothing in § 23(b) that states what action either

the Attorney General or a complainant may take after a public

body has submitted its determination to the Attorney General,

940 Code Mass. Regs. § 29.05(6) (2010) provides that if "at

least 30 days have passed after the complaint was filed with the

public body, and if the complainant is unsatisfied with the

public body's resolution of the complaint, the complainant may

file a complaint with the Attorney General." 8   Assuming that

Walsh overlooked these explications of the path open for a

complainant unsatisfied with a public body's response, a

paralegal at the office of the Attorney General, in a letter to

Walsh, stated that a notification and a response had been

received from town counsel, but because no complaint had been

filed with the Attorney General, it would be assumed that the

"action taken by the public body was sufficient" and the file

would be closed unless a request was made for further review.

     8
       Also, the Attorney General's complaint form states: "If
you are not satisfied with the action taken by the public body
in response to your complaint, you may file a copy of your
complaint with the Attorney General's Office 30 days after
filing your complaint with the public body."
                                                                     6


     The voters' complaint proceeded to a hearing on January 15,

2015.    At the hearing, town counsel argued a motion to dismiss

that had been filed by the board the previous day, which

contended that the action should be decided without an

evidentiary hearing and the subpoenas should be quashed; that

the statute of limitations did not permit consideration of the

appointments prior to the vote on November 3, 2014; and that no

violations of the open meeting law occurred.    Specifically, town

counsel argued that because the voters' complaint had been

submitted under § 23(f) 9 of the open meeting law, there were two

reasons why injunctive relief and an accompanying evidentiary

hearing were inappropriate:    first, because it was the board's

burden to show that the actions the voters complained of

complied with the open meeting law, the hearing should be

limited to the town's papers; and second, because there must be

regard to the "speediest possible determination" of the case,

and pursuing documentary or testimonial evidence and injunctive

relief cannot be viewed as speedy.    The judge stated that he was

     9
       Section 23(f) states: "In any action filed under this
subsection, the order of notice on the complaint shall be
returnable not later than 10 days after the filing and the
complaint shall be heard and determined on the return day or on
such day as the court shall fix, having regard to the speediest
possible determination of the cause consistent with the rights
of the parties . . . . In the hearing of any action under this
subsection, the burden shall be on the respondent to show by a
preponderance of the evidence that the action complained of in
such complaint was in accordance with and authorized by the open
meeting law."
                                                                     7


"not accepting any evidence" at the hearing, and Walsh agreed

that the voters would rest on their arguments and the "multitude

of papers." 10

     Discussion.   1.   Standard of review.   We follow the well-

known standard for review of a motion to dismiss pursuant to

Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), considering the

pleadings de novo, drawing reasonable inferences in favor of the

voters, and considering whether the allegations plausibly

suggest an entitlement to relief. 11   See Iannacchino v. Ford

Motor Co., 451 Mass. 623, 636 (2008); Dartmouth v. Greater New

Bedford Regional Vocational Technical High Sch. Dist., 461 Mass.

366, 373-374 (2012).

     2.   Notice of meeting.    The notice required by G. L.

c. 30A, § 20(b), states that in addition to posting notice at

least forty-eight hours prior to a meeting, the notice shall

contain the date, time, and place of the meeting, and a "listing

of topics that the chair reasonably anticipates will be

discussed at the meeting."     The voters complain that the notice

for the November 3, 2014, meeting only stated, "Update on town

     10
       It is not clear what the nature and the scope of a
hearing should have been, but we decline to resolve the question
because the voters' allegations fail as a matter of law.
     11
       The voters argue that the motion to dismiss should have
been converted to a motion for summary judgment and that they
should have been permitted to present witnesses at the hearing.
At the time of the hearing, however, the voters did not object
to the procedure followed by the judge.
                                                                     8


administrator search," and did not indicate that there could be

a vote appointing the town administrator. 12   It appears from the

record that, at the time of the preparation of the meeting

notice, it was not known that a decision would be reached by the

board.    The decision to appoint came up unexpectedly during the

discussion of the candidates when two board members realized

that they agreed on the same candidate.   It was decided that

further deliberation was unnecessary and that a vote should be

taken in order to expedite the process.   Nothing in § 20(b)

requires anything more than listing the topics reasonably

anticipated by the chair to be discussed at the meeting.    The

notice process, therefore, was proper and in accordance with the

open meeting law. 13

     3.    Alleged mishandling of the voters' complaint.   The

voters complain that the board should have held a public

discussion on their complaint.   There is no requirement in the

statute for public discussion of an open meeting law complaint

prior to the public body sending its response to the complaint


     12
       The notice of an update followed the discussion at the
previous open meeting on July 15, 2014, when the candidate
search process began.
     13
       Although listing an agenda topic as an update does not
put the public on notice that a vote would take place, the
statute only requires the agenda topics to be reasonably
anticipated. The outcome of a case could differ where the chair
knew a vote would be taken, but only listed the agenda topic as
an update.
                                                                      9


to the Attorney General.      Title 940 Code Mass. Regs. § 29.05(4)

(2010) specifies only that complaints shall timely be reviewed

to "ascertain the time, date, place and circumstances which

constitute the alleged violation."     The board's response was

timely, and it may be inferred that town counsel ascertained the

circumstances of the complaint.     The board adhered to the

requirements of § 23(b). 14

     4.   Interviews and deliberation on candidates.     The voters

only generally assert that the process for appointment of the

town administrator violated the open meeting law.

     The town obtained the assistance of the MMA Consulting

Group (MMA) in an open meeting where it was agreed that MMA

would select seven candidates from among the applicants who

responded to the notice of the vacancy in the position of town

administrator.   After information and the names of seven

candidates had been submitted to the board, it began an

interviewing process on October 29 and 30 where individual board

members interviewed each individual candidate in separate rooms

at the town hall.   The then-town administrator asked each board

member to rank the candidates he had interviewed; one board


     14
       Although nothing in the open meeting law requires it, the
town concedes that in order to comply with the Attorney
General's regulations, as she has construed them, the board
should have voted to delegate to the town counsel the
investigation of and the response to the complaint, or
authorized him to take any other action with respect to it.
                                                                   10


member declined.    The town administrator did not discuss the

rankings with other members of the board, and the board members

avoided discussing the candidates with each other or with anyone

who might communicate their view to another board member.

     On November 3, 2014, at a regularly scheduled public

meeting for which proper notice had been given, when the agenda

item "[u]pdate on town administrator search" was reached, the

individual board members began to discuss their views and the

rankings of the candidates they had interviewed.     During that

discussion it soon became apparent that two board members

thought that one of the candidates was outstanding and should be

hired.    A vote was taken.   Although the third board member

agreed the candidate was a strong candidate, he thought further

interviews should be conducted. 15



     15
       The discussion is described in considerable detail in the
minutes of the meeting. The minutes record the names of the
candidates being considered and the names of the board members
and the summaries of their statements about the candidates. Two
residents spoke at the meeting. One asked about provision for
removal of the town administrator and the other asked the board
to hold a forum and publicly interview the candidates. The
board chair explained that public input was not part of the
hiring process nor could the public participate in the interview
process.

     The minutes readily appear to conform to G. L. c. 30A,
§ 22, which states that the minutes shall "set[] forth the date,
time and place, the members present or absent, a summary of the
discussions on each subject, . . . the decisions made and the
actions taken at each meeting, including the record of all
votes."
                                                                   11


     Nothing in the open meeting law proscribes the individual

interviews that took place.     As the judge properly concluded,

these interviews did not constitute deliberations "between or

among a quorum of a public body" which, as required by G. L.

c. 30A, § 18, must be conducted in an open meeting. 16   The

individual interviews in these circumstances allowed the

individual board members to obtain information and to form an

opinion on each candidate in preparation for deliberation with

the other board members at an open meeting.     There was no

violation of any provision in the open meeting law.

Contrast Gerstein v. Superintendent Search Screening Comm., 405

Mass. 465, 470 (1989). 17

     5.   Other appointments.    The voters also challenge under

the open meeting law the previous appointments of the fire


     16
       "Deliberation" is defined in § 18 as "an oral or written
communication through any medium, including electronic mail,
between or among a quorum of a public body on any public
business within its jurisdiction; provided, however, that
'deliberation' shall not include the distribution of a meeting
agenda, scheduling information or distribution of other
procedural meeting or the distribution of reports or documents
that may be discussed at a meeting, provided that no opinion of
a member is expressed."
     17
       The voters appear to favor public interviews of
candidates. The open meeting law is silent on whether such
interviews should be public, although it does provide for a
public body to meet in executive session where an "open meeting
will have a detrimental effect in obtaining qualified
applicants," as stated in G. L. c. 30A, § 21(8). No argument
has been made in the present case regarding any potential
detrimental effects on qualified candidates.
                                                                     12


chief, the town clerk, and the director of public works, whose

appointments were made respectively on December 16, 2013;

February 24, 2014; and July 15, 2014.      It appears from the

record that the voters do not have standing to challenge these

appointments because one plaintiff had been a registered voter

in the town only since September 29, 2014.      The statute may be

enforced only by "3 or more registered voters."      G. L. c. 30A,

§ 23(f).   Compare Vining Disposal Serv., Inc. v. Selectmen of

Westford, 416 Mass. 35, 39-40 (1993). 18

                                    Judgment affirmed.




     18
        The voters do not address this issue on appeal except in
a footnote in their brief, where they state only that "[t]he
Court dismissed counts four and five in error believing that all
three voters must have been [town] voters during the entire
course of conduct in order to object." We need not consider an
argument raised only in a footnote or a single sentence because
it does not rise to the level of appellate argument; it may be
deemed waived. See Mole v. University of Mass., 442 Mass. 582,
603 n.18 (2004); Boston v. Commonwealth Employment Relations
Bd., 453 Mass. 389, 402 n.11 (2009); Boston Edison Co. v.
Massachusetts Water Resources Authy., 459 Mass. 724, 726 n.3
(2011).
