Accusations that the Andover School Committee violated the state’s open meeting law center on whether three members “shared information” by email in 2019 or “deliberated” on the application of a private school that wanted to operate in town.

The accusations of the open meeting law are among the many included in a $4 million lawsuit Fusion Academy filed against the town after the school committee denied its second application denied in 2021. Fusion claims former Chair Shannon Scully and former Superintendent Sheldon Berman starting drafting a press release announcing the board had rejected Fusion’s first application a month before it voted in April 2019, and that Scully and two other committee members discussed and edited by email a report recommending the committee decline Fusion’s application.

The school committee’s own policy manual, which was revised and adopted in 2018, specifically says school committee members should avoid discussing anything covered by the Massachusetts Open Meeting Law outside public meetings. It does not bar school committee members from using electronic messaging to contact one another, but it stresses caution.

Scully and district spokesperson Nicole Kieser declined comment on the policy manual Monday, citing a district rules to not comment on litigation. But in a court filing last month, lawyers for the school committee argued the members were only sharing information about Fusion’s application and not deliberating the issue.

“Provided no conclusions were reached, the sharing of information among public officials does not constitute a ‘deliberation’ as defined in the Open Meeting Law,” the filing said. “On the contrary, it is specifically allowed.”

The emails, which were turned over by the town in more than 10,000 pages of discovery evidence, have not been publicly released. But Fusion claims Scully, former member Joel Blumstein and current committee Vice Chair Tracey Spruce discussed edits and made changes to a report by former Assistant Superintendent Sandra Trach that recommended the committee reject Fusion’s application in 2019 to “better support publicly their sham vote” at an April 3, 2019 meeting. Blumstein and Spruce also discussed their edits in a separate email thread, according to Fusion.

If Fusion’s claims are true, the committee not only violated the Massachusetts Open Meeting Law, but its own policy manual.

“As elected public officials, School Committee members shall exercise caution when communicating between and among themselves via electronic messaging,” the school committee’s policy manual reads. “Under the Open Meeting Law, deliberation by a quorum of members constitutes a meeting. Deliberation is defined as movement toward a decision including, but not limited to, the sharing of an opinion regarding business over which the Committee has supervision, control, or jurisdiction.”

Spruce previously declined comment on the lawsuit, and Blumstein, who now chairs the West Elementary School Building Committee, did not respond to requests for comment.

Email for “Housekeeping Purposes”

Scully declined comment Monday, but previously denied that she and the other committee members violated the open meeting law, echoing arguments in last month’s school committee court filing.

“Fusion’s claims are spurious and without merit, and I’m confident anyone with an understanding of the open meeting law would reach that conclusion,” Scully said. Scully did not run for reelection last year and now sits on the Andover High School Building Committee.

The school committee’s policy manual lays out specific guidelines for school committee members when they contact one another electronically. The policy says members should use email, text and other forms of communication “between and among members only for housekeeping purposes such as requesting or communicating agenda items, meeting times, or meeting dates. Electronic messaging should not be used to discuss Committee matters that require public discussion under the Open Meeting Law.”

The policy cites the relevant section of Massachusetts Open Meeting Law, which reads:

”’Deliberation’, 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.”

No complaints of the alleged Open Meeting Law violation have been filed with the Massachusetts Attorney General’s office. The law includes civil penalties of fine up to $1,000 for each violation.

Fusion is seeking $4 million in lost revenue, interest and attorney fees. In its original complaint, Fusion said the school committee required the company to secure a lease as a pre-condition of its review process of the second application. Among the damages, Fusion is seeking $2.6 million for the 10-year lease it signed at 3 Dundee Park Drive in September 2018 and $1.4 million for its build out of the site.

Main photo: Former Andover School Committee Chair Shannon Scully.

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