That the City Manager be and hereby is requested to work with the Police Department to provide information to the City Council about social media protocols and what disciplinary action has been taken as result of the Department’s social media use incident. CHARTER RIGHT EXERCISED BY COUNCILLOR SIMMONS IN COUNCIL MAY 11, 2020

Assistant City Solicitors Nancy E. Glowa Paul S. Kawai City Solicitor INSTIEVES Keplin K. U. Allwaters Arthur J. Goldberg Sean M. McKendry Megan B. Bayer Deputy City Solicitor Brian A. Schwartz Katherine Sarmini Hoffman Samuel A. Aylesworth First Assistant City Solicitor Public Records Access Officer Seah Levy CITY OF CAMBRIDGE Office of the City Solicitor 795 Massachusetts Avenue Cambridge, Massachusetts 02139 May 18, 2020 Louis A. DePasquale City Manager City Hall, 795 Massachusetts Avenue Cambridge, Massachusetts 02139 Re: Response to Council Order No. O-4 of 5/11/20 Requesting Information on What Disciplinary Action Has Been Taken in Response to a Sunday, May 3, 2020 Tweet by Cambridge Police Superintendent Jack Albert Dear Mr. DePasquale: 1. INTRODUCTION This legal opinion is submitted in response to Order No. O-4 of May 11, 2020 requesting information on what disciplinary action has been taken in response to a Sunday, May 3, 2020 Tweet by Cambridge Police Superintendent Jack Albert' on the official Twitter account of the .. another liberal [expletive] jerk City of Cambridge (the "City") Police Department stating "• who happens to better [sic] than the clown he's running against. ...." As noted below, I am of the opinion that the details of any disciplinary action which may have been taken against Superintendent Albert constitutes "personnel ... files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy" pursuant to G. L. c. 4, § 7 cl. 26(c), are "absolutely exempt from disclosure," and may not be disclosed to the City Council, including in an executive session of the City Council. II. LEGAL ANALYSIS 'Because Superintendent Albert identified himself via name publicly in an apology issued on May 4, 2020, we have included his name in this legal opinion. If Superintendent Albert did not publicly identify himself, he would not have been identified in this legal opinion. Wakefield Teachers Assn. v. School Committee of Wakefield, 431 Mass. 792, 800 (2000). Facsimile [phone removed] Telephone [phone removed] TTY/TTD [phone removed]

A. The City Manager is the Appointing Authority of All Members of the Cambridge Police Department Under the City's Plan E Charter, "the government of the City and the general management and control of all its affairs shall, except as otherwise provided in this chapter, be vested in a City Council, which shall exercise its powers in the manner hereinafter set forth... except that the City Manager shall have the authority hereinafter specified." G. L. c. 43, § 95. In addition, under the City's Charter "the City Council shall have and exercise all the legislative powers of the City, except as such powers are reserved by this chapter to the School Committee and to the qualified voters of the City." G. L. c. 43, § 97. Furthermore, under the Charter, the City Manager "... shall make all appointments and removals in the departments, commissions, boards and offices of the City for whose administration he is responsible, except as otherwise provided in this chapter. ..." G. L. c. 43, § 104. Moreover, G. L. c. 43, § 107 provides that "neither the City Council nor any of its committees or members shall direct or request the appointment of any person to, or his removal from, office by the City Manager or any of his subordinates, or in any manner take part in the appointment or removal of officers and employees in that portion of the service of said City for whose administration the City Manager is responsible" and "except for the purpose of inquiry, the city council and its members shall deal with that portion of the service of the City as aforesaid solely through the City Manager, and neither the City Council nor any member thereof shall give orders to any subordinate of the City Manager either publicly or privately." G. L. c. 43, § 107. Under Chapter 2.52, Section 2.52.010 of the Municipal Code: "the Police Department shall be under the charge of a Police Commissioner who shall be the head of the Department and who shall, from time to time, make suitable regulations governing the Department and the officers thereof, subject to the approval of the City Manager." Given that the City Manager is the appointing authority of the Police Commissioner and his subordinates, and the Police Department is a department for whose administration the City Manager is responsible, any discipline concerning employees in the Police Department, is within the purview of the City Manager and the Police Commissioner, and as explained in more detail below, is exempt from public disclosure under G. L. c. 4, § 7 cl. 26(c). To the extent that G. L. c. 43, § 107 provides the City Council any authority to make inquiry of City personnel, that inquiry is limited to matters within the City Council's jurisdiction, and not inquiry into employee-specific disciplinary decisions, as explained further below. G. L. c. 43, § 107. B. Personnel Records Are Exempt from Disclosure Under the Massachusetts Public Records Law G. L. c. 4, § 7 cl. 26(c) exempts from public disclosure "personnel and medical files or information; also, any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy." See G. L. c. 4, § 7 cl. 26(c). The Supreme Judicial Court of the Commonwealth of Massachusetts has long held that the personnel records of government employees are exempt from public disclosure. In Wakefield Teachers Association v. School Committee of Wakefield, 431 Mass. 792, (2000), the Supreme Judicial Court considered whether a disciplinary decision and report of the superintendent of Wakefield public schools regarding the performance of a Wakefield public 2

school teacher is exempt from disclosure under the public records law, G.L. c. 66, § 10, pursuant to G.L. c. 4, § 7, 26(c). Wakefield Teachers Association, 431 Mass. at 792—793. By way of background, sometime before March of 1995, the Superintendent of Wakefield Public Schools learned that a male teacher at Wakefield Junior High School had written potentially inappropriate notes on the homework assignments of two female students in his class. Id. at 794. The Superintendent conducted an investigation into the allegations, including an interview with the teacher and two union representatives, and wrote a report. Id. His report described his decision to impose on the teacher a suspension without pay for four weeks. Id. Thereafter, a resident of Wakefield wrote to the Superintendent requesting information regarding the suspension of a teacher at Wakefield Junior High School through a public records request, noting that he was not interested in the name of the teacher or any student involved, but rather, the nature of the offense for which he was suspended. Id. at 795. The Superintendent denied the request; however, the Supervisor of Public Records opined that "those portions of the records which identify the suspended teacher and relate to his alleged misconduct are subject to mandatory disclosure upon request," and litigation in the Superior Court and subsequent appeals followed. Id. at 796. The Supreme Judicial Court held that "the report at issue in this case pertains to one teacher only and is absolutely exempt from disclosure under the plain language of the statute." Id. at 800 (emphasis added). The Supreme Judicial Court also noted that in enacting G. L. c. 4, § 7 cl. 26(c), the Legislature clearly balanced competing public policy considerations, that the exemption of personnel files and information has, among other benefits, the protection of the government's ability to function effectively as an employer, and that were the teacher involved to be concerned that his cooperation with an investigation would result in public disclosure, his cooperation might not have been forthcoming. Id. at 802. Therefore, as a matter of law, the personnel records of an employee are exempt from disclosure under the Public Records Law. In a case involving an internal affairs investigation file of the Worcester Police Department, the Appeals Court drew a distinction between the facts in Waketield Teachers Association and those in Worcester Telegram & Gazette Corporation v. Chief of Police of Worcester, 58 Mass. App. Ct. 1 (2003). Worcester Telegram & Gazette, 58 Mass. App. Ct. at 8-9. In that case, the Worcester Telegram & Gazette through a public records request sought an internal affairs investigation file from the Worcester Police Department; the investigation file contained materials compiled during an investigation of a citizen complaint following a May 1, 1999 incident. Worcester Telegram & Gazette, 58 Mass. App. Ct. at 2. The Appeals Court held: "we conclude that materials in an internal affairs investigation are different in kind from the ordinary evaluations, performance assessments and disciplinary determinations encompassed in the public records exemption for "personnel [file] or information,' the sole exemption at issue." Id. In reaching that conclusion, the Appeals Court reasoned that "an internal affairs investigation is a formalized citizen complaint procedure, separate and independent from ordinary employment evaluation and assessment." Id. at 7. "Unlike other evaluations and assessments, the internal affairs process exists specifically to address complaints of police corruption (theft, bribery, acceptance of gratuities), misconduct (verbal and physical abuse, unlawful arrest, harassment), and other criminal acts that would undermine the relationship of trust and confidence between the police and the citizenry that is essential to law enforcement." Id. In reaching its conclusion, the Appeals Court reasoned: "we consider the officers' reports, the 3

witness interview summaries, and the internal affairs report itself to be substantially different from the single, integrated report held to be 'personnel [file] or information' in Wakefield." Worcester Telegram & Gazette, 58 Mass. App. Ct. at 7. Indeed, in conformity with the Supreme Judicial Court's ruling in Wakefield Teachers Association, the Appeals Court found in Worcester Telegram & Gazette that a memorandum from the Worcester Chief of Police to the police officer in question detailing the findings of the internal affairs investigation and the conclusion that no disciplinary action was to be taken, does constitute a personnel record and is exempt from public disclosure. Id. at 9. In reaching that conclusion as to the memorandum from the Chief of Police to the employee, the Appeals Court reasoned that that document is a notice from the disciplining authority to the particular employee advising of the disciplinary decision (that disciplinary action was not warranted) and that the nature and character of this document makes it part of "the core category of personnel information that is useful in making employment decisions regarding the employee" and is thus exempt from public disclosure. Id C. Employees' Rights Under the Massachusetts Open Meeting Law (G. L. c. 30A, SS 18—25) Under G. L. c. 30A, § 18, a "meeting" is defined in part as "... a deliberation by a public body with respect to any matter within the body's jurisdiction...." G. L. c. 30A, § 18; see also Massachusetts Attorney General's "Open Meeting Law Guide & Education Materials," January 2018. Therefore, in order for the City Council to convene a meeting to inquire into what discipline may have been issued to a City employee, the employee in question must be someone within the City Council's jurisdiction. As outlined above, the City Manager is the appointing authority for the Police Commissioner and his subordinates in the Police Department under the Charter and Chapter 2.52, Section 2.52.010 of the Municipal Code, and therefore, disciplinary matters pertaining to employees in the Police Department are not within the City Council's jurisdiction. Notwithstanding that disciplinary matters of appointees of the City Manager are not within the jurisdiction of the City Council, to the extent the City Council may elect to meet in executive session for the purpose of discussing "the reputation, character ... rather than professional competence, of an individual, or to discuss the discipline or dismissal of, or complaints or charges brought against, a public officer, employee, staff member or individual" who is an appointee of the City Council, and therefore, within the City Council's jurisdiction, the employee discussed in such an executive session must be notified in writing by the City Council at least forty-eight hours prior to the proposed executive session, unless waived by written agreement of the City Council and the employee. G. L. c. 30A, § 21. Furthermore, the individual being discussed has the right to be present during the executive session, to have legal counsel or a representative of his choosing present for the purpose of advising the individual, to speak on his own behalf during the executive session, and to cause an independent record of the executive session to be created by audio or transcription at his own expense. Id. However, as explained in detail above, because disciplinary matters constitute personnel records and the 'The City Council may hold an open session, rather than an executive session, if the individual involved requests that the session be open. G. L. c. 30A, § 21. 4

employee in question here is appointed by the City Manager and not appointed by the City Council, any discussion of potential discipline of such an employee appointed by the City Manager would not be within the City Council's jurisdiction and is therefore impermissible. Moreover, in interpreting the provisions of G. L. c 43, S§ 104—105, the Supreme Judicial Court has stated that "... weight must be given to the principle that strong terms are required to show a legislative intent to supersede by a general act a special act which may be made in regard to a place, growing out of its peculiar wants, condition, and circumstances" and that "City charters are essentially [such] special enactments designed to provide for the particular needs of the various cities." Welch v. Contributory Retirement Appeal Board, 343 Mass. 502, 507 (1962) citing Haffner v. Director of Pub. Safety of Lawrence, 329 Mass. 709, 714 (1953). Therefore, the Supreme Judicial Court's ruling in Welch provides that the provisions of the City's Charter, G. L. c. 43, 8§ 104, 105 et seq., which is a special act made with respect to the City, shall not be superseded by any provisions in a later enacted general law, such as the Open Meeting Law, G. L. c. 30A, §§ 18—25. Id. That issue is not relevant, however, because although G. L. c. 30A, § 21 provides a mechanism whereby the City Council may convene an executive session for the purpose of discussing discipline of an individual under the City Council's jurisdiction, the City's Charter prohibits the City Council from discussing discipline of an employee who is appointed by the City Manager, and furthermore, as noted above, under G. L. c. 4, § 7 cl. 26(c), the details of any discipline concerning a government employee are absolutely exempt from disclosure. III. CONCLUSION Because employee discipline is the type of information the Supreme Judicial Court has held is "absolutely exempt" from public disclosure under G. L. c. 4, § 7 cl. 26(c), information concerning discipline of any City employees under the City Manager's jurisdiction may not be disclosed to the City Council, including in an executive session of the City Council. Moreover, because the City Manager is the appointing authority of all members of the Cambridge Police Department, the provisions of the City's Charter as well as the Open Meeting Law dictate that the City Council may not discuss discipline concerning any such employee, including in executive session, since such discipline does not relate to employees within the City Council's jurisdiction. If you have any questions concerning this matter, please let me know. Very truly yours, Nancy E. Glowa City Solicitor 5