Robert May v. Templeton, Town of - Town Administrator (SPR 20242586)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 19, 2024 SPR24/2586 Adam D. Lamontagne, MPA, MCPPO Town Administrator Town of Templeton Town Hall, Room 6 P. O. Box 620 160 Patriots Road East Templeton, MA 01438 Dear Mr. Lamontagne: I have received the petition of Robert T. May appealing the nonresponse of the Town of Templeton (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 28, 2024, Mr. May queried: [w]hich of the 4 available means was used for separation of the employment of the Town Accountant Below please find a copy of our peronell [sic] policy for separation of employees. H. Separation - Employment with the Town has no specified term or length. Employees are free to resign at any time, and the Town reserves the right to terminate employment for any reason permissible by law. All employees, except some contract employees and bargaining unit employees, are considered employees at will. All separations of employees will be designated as one of the following types and accomplished in accordance with the manner indicated. Contract employees and bargaining unit employees should refer to their respective contracts and collective bargaining agreements. 1. Dismissal - An employee may be terminated for any reason permissible by law including but not limited to misconduct or incapacity. The Town Administrator will provide the employee with a written notice with the effective date and stating the reason(s) for the termination. 2. Resignation - An employee may resign from the Town at any time, as we are an at will employer. The Town would prefer the notice be submitted in writing to the Department Head with a 2-week time frame for non-supervisory employees and a One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Adam D. Lamontagne SPR24/2586 Page 2 September 19, 2024 one (1) month notice for Department Heads or Supervisors. 3. Lay-off - The Town of Templeton reserves the right to lay off any employee whenever such action becomes necessary by reason of shortage of funds, lack of work, the abolition of a position, a material change in duties or organization, or for any other appropriate reasons. If eligible, employees will be issued an unemployment form upon notice of lay-off. 4. Retirement - All regular employees are required to enroll in The Worcester Regional Retirement System. Retirement benefits are described in Section 6 - N. At the time of separation and prior to final payment, the Department Head, Treasurer/Collector, Assistant to the Town Administrator and Human Resources Assistant, will gather all records, assets, or other items that belong to the Town that are in the employee’s custody. In the event of a shortage in the above, an amount representing the value of unreturned property will be calculated and withheld from the employee’s final compensation or collected through other appropriate action. Employees who separate from the Town’s service will receive payment for all earned salary, vacation leave, sick time buyback, and are subject to normal deductions. I. Exit Interview - For consideration in providing feedback to the Town separating employees may be asked to complete an exit interview, as near as possible to the close of the last day of work, prior to the issuance of the employee’s final paycheck. The objectives of the exit interview to be conducted by the Human Resources Assistant are: 1. To give the employee an opportunity to further explain reasons for their resignation 2. To discover any criticisms the employee may have about the efficiency or Effectiveness performed within the department in order that positive action(s) may be undertaken 3. To discover any miscommunications the employee may have had about their job or with their Department Head in order that positive measure(s) may be undertaken 4. To retain the goodwill of the employee toward the Town 5. To review administrative details with the employee such as benefits continuation rights and conversion privileges, if any, final pay, re-employment policy, and employment compensation and 6. To arrange for the return of any Town of Templeton property that has not already been returned to the Department Head. A record of the exit interview will be maintained in the employee’s personnel file. I very much doubt this policy was followed. The Accountant was not a contracted employee therfore her separation is governed by the personell [sic] policy. . . . Are we still paying . . .? What is the time frame if we are? Whose idea on means of seperation [sic]!

Adam D. Lamontagne SPR24/2586 Page 3 September 19, 2024 Claiming to not yet have received responsive records, Mr. May petitioned this office and this appeal, SPR24/2586, was opened as a result. Subsequently, the Town provided a response on September 16, 2024. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The Town’s September 16th Response In its September 16, 2024 response, the Town stated, “I do not see a request for a document; however, he wants an answer to a question. This is an ongoing HR matter that I have no comment on at this time.” No Duty to Answer Questions Mr. May is advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Pursuant to the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Where Mr. May submitted questions to the Town, I find the Town has no duty under the Public Records Law to answer such questions. Conclusion Accordingly, I will consider this administrative appeal closed.

Adam D. Lamontagne SPR24/2586 Page 4 September 19, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Robert T. May