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Open Meeting Law
Town of Hanson
March 28, 2012Presented by Gregg J. Corbo
All materials © Copyright 2012 Kopelman and Paige, P.C. All rights reserved.
PurposePurpose
““The open meeting law is designed to The open meeting law is designed to eliminate much of the secrecy eliminate much of the secrecy surrounding the deliberations and surrounding the deliberations and decisions on which public policy is decisions on which public policy is based.”based.”
GhiglioneGhiglione v. v. School Committee of School Committee of SouthbridgeSouthbridge, , 376 Mass. 70, 72 (1978)376 Mass. 70, 72 (1978)
IntroductionIntroduction
Overview of the Revised Open Meeting LawOverview of the Revised Open Meeting Law Important Statutory DefinitionsImportant Statutory Definitions Requirements for Meeting NoticesRequirements for Meeting Notices Requirements for Meeting MinutesRequirements for Meeting Minutes Executive SessionsExecutive Sessions Administrative MattersAdministrative Matters EnforcementEnforcement
Chapter 28 of the Acts of 2009Chapter 28 of the Acts of 2009
Newly codified Open Meeting Law [OML] effective July 1, Newly codified Open Meeting Law [OML] effective July 1, 20102010
Repealed G.L. c.39, Repealed G.L. c.39, §§23A-23C§§23A-23C
Revised OML codified at G.L. c.30A, §§18-25Revised OML codified at G.L. c.30A, §§18-25
Regulations codified at 940 CMR 29.00Regulations codified at 940 CMR 29.00
Attorney General Decisions, updated daily at Attorney General Decisions, updated daily at http://www.mass.gov/ago/government-resources/open-meeting-law/
Overview of the Revised Open Overview of the Revised Open Meeting Law [OML]Meeting Law [OML]
Centralizes enforcement in Attorney Centralizes enforcement in Attorney General’s OfficeGeneral’s Office
Alters important statutory definitionsAlters important statutory definitions Imposes new requirements for: Imposes new requirements for:
notices, minutes, executive sessions, notices, minutes, executive sessions, exemptions, member participation and exemptions, member participation and related administrative mattersrelated administrative matters
Alters Important Statutory Alters Important Statutory DefinitionsDefinitions
DeliberationDeliberation MeetingMeeting Governmental bodyGovernmental body
DeliberationDeliberation
““[o]ral or written communication [o]ral or written communication through any medium, through any medium, including including electronic mailelectronic mail, between or among , between or among a quorum of a public body on any a quorum of a public body on any public business within its public business within its jurisdiction…,” with certain jurisdiction…,” with certain express exceptions.express exceptions.
Deliberation (cont.)Deliberation (cont.)
Specifically includes e-mail communicationsSpecifically includes e-mail communications
Provided that no opinions of the governmental Provided that no opinions of the governmental body are expressedbody are expressed, specifically , specifically excludesexcludes:: Distribution of meeting agendaDistribution of meeting agenda Scheduling informationScheduling information Distribution of other procedural meeting Distribution of other procedural meeting
materials, reports or documents that may materials, reports or documents that may be discussedbe discussed
Deliberation (cont.)Deliberation (cont.) The Attorney General has interpreted this The Attorney General has interpreted this
exception very narrowly.exception very narrowly.
For example, the Attorney General found For example, the Attorney General found that an e-mail to a quorum of members that an e-mail to a quorum of members stating the reasons for scheduling a meeting stating the reasons for scheduling a meeting violated the Open Meeting Law.violated the Open Meeting Law.
Therefore, when scheduling meetings or Therefore, when scheduling meetings or preparing agendas, care must be taken to preparing agendas, care must be taken to limit the communication to dates and times limit the communication to dates and times only.only.
Even before new OML was adopted, nearly unanimous opinion among district attorneys that e-mail exchange among a quorum of members, or a serial e-mail exchange among a quorum, was a violation of OML. Now e-mail is explicitly addressed.
E.g., OML 2011-14 (Wakefield) prohibits exchange of e-mail in which members express opinions about substantive matters, even where such distribution is intended to be discussed at a future meeting; such “opinions” may be as limited as, “I suggest we go with this version based on Joe’s feedback.”
Over the past few years, alternative electronic communications have also become more prevalent, including the use of instant messaging, blogging, and social networking such as Facebook, Linkedin and Twitter.
Communications among a quorum on these types of services also appear to implicate the OML.
E-mail Potential transactions that could lead to a
violation: An e-mail, voicemail, instant messaging, posting, or
blog originally addressed to one member of a public body subsequently forwarded to, or reviewed by a quorum of members;
An e-mail, voicemail, instant messaging, posting or blog sent to a quorum of members of a public body; and
A web-based discussion group, chat room or social networking site where a quorum is participating, whether contemporaneously or in serial fashion.
MeetingMeeting
““[A] deliberation by a public body [A] deliberation by a public body with respect to any matter within with respect to any matter within the body’s jurisdiction…,” with the body’s jurisdiction…,” with certain express exceptions.certain express exceptions.
Meeting (cont.)Meeting (cont.)
Specifically excludes:Specifically excludes: A quorum at an on-site inspectionA quorum at an on-site inspection Attendance by a quorum at a Attendance by a quorum at a
conference or training program or a conference or training program or a media, social or other eventmedia, social or other event
Attendance by a quorum at meeting of Attendance by a quorum at meeting of another governmental body another governmental body
A meeting of a quasi-judicial board held A meeting of a quasi-judicial board held for the sole purpose of making a for the sole purpose of making a decision in an adjudicatory proceedingdecision in an adjudicatory proceeding
Public BodyPublic Body
““[A] multiple-member board, commission, [A] multiple-member board, commission, committee or subcommittee within the committee or subcommittee within the executive or legislative branch or within any executive or legislative branch or within any county, district, city, region or town, however county, district, city, region or town, however created, elected, appointed or otherwise created, elected, appointed or otherwise constituted, established to serve a public constituted, established to serve a public purpose; …and provided further, that a purpose; …and provided further, that a subcommittee shall include any multiple-subcommittee shall include any multiple-member body created to advise or make member body created to advise or make recommendations to a public body.”recommendations to a public body.”
Public Body (cont.)Public Body (cont.)
““Governmental body” now “Public Governmental body” now “Public body”body”
Includes subcommittees, which include Includes subcommittees, which include any multiple-member body created to any multiple-member body created to advise or make recommendations to a advise or make recommendations to a public bodypublic body
EmergencyEmergency
Definition unchanged; threat to public health and Definition unchanged; threat to public health and safetysafety
Now requires posting as soon as reasonably possible.Now requires posting as soon as reasonably possible. Practical recommendations:Practical recommendations:
Limit its deliberations to the emergency matterLimit its deliberations to the emergency matter Take minutes of its meeting, and review and Take minutes of its meeting, and review and
include with minutes of next regularly scheduled include with minutes of next regularly scheduled meeting. meeting.
When posting emergency meeting, consider When posting emergency meeting, consider posting a regular meeting as well, to allow body to posting a regular meeting as well, to allow body to ratify the action taken at emergency meeting.ratify the action taken at emergency meeting.
New Requirements and New Requirements and Additional RegulationAdditional Regulation
NoticeNotice Minutes and documents used at Minutes and documents used at
meetingsmeetings Executive sessionsExecutive sessions Exemptions to OMLExemptions to OML Participation by membersParticipation by members Related administrative mattersRelated administrative matters
NoticeNotice
Shall include “a listing of topics that the Shall include “a listing of topics that the chair reasonably anticipates will be chair reasonably anticipates will be discussed at the meeting”discussed at the meeting”
NoticeNotice
Notice must include Notice must include particular detailsparticular details of of matters to be discussed by body that the matters to be discussed by body that the Chair reasonably anticipates at least 48 Chair reasonably anticipates at least 48 hours prior theretohours prior thereto
E.g., OML 2011-15 (Melrose) – AG E.g., OML 2011-15 (Melrose) – AG concluded that School Committee violated concluded that School Committee violated law by failing to include the name of non-law by failing to include the name of non-union personnel with whom it would be union personnel with whom it would be negotiating in the meeting notice.negotiating in the meeting notice.
NoticeNotice
E.g., OML 2011-7 (Natick) –AG concluded E.g., OML 2011-7 (Natick) –AG concluded that School Committee violated law by failing that School Committee violated law by failing to include specific details of proposed vote to include specific details of proposed vote on Town Meeting warrant articles where item on Town Meeting warrant articles where item simply listed “Town Meeting Update”simply listed “Town Meeting Update”
Recommended that notice should have said, Recommended that notice should have said, “Discussion of Town Meeting Warrant “Discussion of Town Meeting Warrant Articles 1, 9, 10, 18, 32, 33 and 35. The Articles 1, 9, 10, 18, 32, 33 and 35. The School Committee may vote to recommend School Committee may vote to recommend action on these articles at Town Meeting.”action on these articles at Town Meeting.”
NoticeNotice
E.g., OML 2011-11 (Freetown) – AG E.g., OML 2011-11 (Freetown) – AG concluded that notice for Soil Board hearing concluded that notice for Soil Board hearing was deficient where it listed “Renewal of Fall was deficient where it listed “Renewal of Fall Soil Permits”, as it reasonably anticipated that Soil Permits”, as it reasonably anticipated that particular permits would be considered and “it particular permits would be considered and “it should take the additional step of listing into should take the additional step of listing into the meeting notice the details of those the meeting notice the details of those specific permits, including the name of the specific permits, including the name of the applicant and the location under applicant and the location under consideration.”consideration.”
NoticeNotice
E.g., OML 5-4-11 (Southbridge) AG stated that E.g., OML 5-4-11 (Southbridge) AG stated that although Board of Selectmen did not violate although Board of Selectmen did not violate law by discussing matter not listed on meeting law by discussing matter not listed on meeting notice (matter was raised by member of public notice (matter was raised by member of public and not reasonably anticipated), body was and not reasonably anticipated), body was “strongly encourag[ed] . . . not to consider “strongly encourag[ed] . . . not to consider topics that may be controversial or of particular topics that may be controversial or of particular interest to the public until the topic has been interest to the public until the topic has been properly listed in a meeting notice in advance properly listed in a meeting notice in advance of a meeting.”of a meeting.”
NoticeNotice
Must be posted in manner Must be posted in manner conspicuously visible to the public conspicuously visible to the public at at all hoursall hours in or on municipal building in or on municipal building housing the clerk’s office; regulations housing the clerk’s office; regulations allow posting on website allow posting on website
Requires posting 48 hours in advance Requires posting 48 hours in advance of meeting excluding of meeting excluding SaturdaysSaturdays, , Sundays and legal holidaysSundays and legal holidays
MinutesMinutes
Must include:Must include: Date; time; place; members present Date; time; place; members present andand
absent, and action taken at each meetingabsent, and action taken at each meeting A summary of the discussions on each A summary of the discussions on each
subjectsubject The decisions made and “action taken,” The decisions made and “action taken,”
including a record of all votesincluding a record of all votes A list of documents and other exhibits used A list of documents and other exhibits used
by the body at the meetingby the body at the meeting The documents and other exhibits used are The documents and other exhibits used are
“official record” of meeting, in addition to “official record” of meeting, in addition to minutes minutes
Minutes (cont.)Minutes (cont.)
Open meeting minutes shall not be withheld Open meeting minutes shall not be withheld under any of the exemptions to the Public under any of the exemptions to the Public Records Law, except:Records Law, except: The following materials shall be exempt as The following materials shall be exempt as
personnel information: personnel information: materials used in a performance evaluation of an materials used in a performance evaluation of an
individual bearing on his professional competence that individual bearing on his professional competence that were not created by members of the body for purposes were not created by members of the body for purposes of the evaluation; andof the evaluation; and
materials used in deliberations about employment or materials used in deliberations about employment or appointment of individuals, including applications and appointment of individuals, including applications and supporting materials and excluding resumessupporting materials and excluding resumes
New Executive Session New Executive Session RequirementRequirement Before going into the executive session, the chair must Before going into the executive session, the chair must
state the purpose for the session, “stating all subjects state the purpose for the session, “stating all subjects that may be revealed without compromising the that may be revealed without compromising the purpose for which the executive session was called”.purpose for which the executive session was called”.
For example, if entering executive session to discuss For example, if entering executive session to discuss pending litigation, the vote should include the name of pending litigation, the vote should include the name of the case.the case.
If entering executive session to discuss employee If entering executive session to discuss employee discipline, however, name of employee does not have discipline, however, name of employee does not have to be disclosed.to be disclosed.
Executive SessionsExecutive Sessions
Combines previous exemptions (1) and (2), Combines previous exemptions (1) and (2), as follows:as follows: ““(1) To discuss the reputation, character, (1) To discuss the reputation, character,
physical condition or mental health, rather than physical condition or mental health, rather than professional competence, of an individual, or to professional competence, of an individual, or to discuss the discipline or dismissal of, or discuss the discipline or dismissal of, or complaints or charges brought against, a public complaints or charges brought against, a public officer, employee, staff member or individual. …”officer, employee, staff member or individual. …”
Adds right of individual to create Adds right of individual to create independent record of session at own costindependent record of session at own cost
Executive Sessions (cont.)Executive Sessions (cont.)
Divides previous exemption (3) into two:Divides previous exemption (3) into two: ““2. To conduct strategy sessions in 2. To conduct strategy sessions in
preparation for negotiations with nonunion preparation for negotiations with nonunion personnel or to conduct collective bargaining personnel or to conduct collective bargaining sessions or contract negotiations with sessions or contract negotiations with nonunion personnel;nonunion personnel;
3. To discuss strategy with respect to 3. To discuss strategy with respect to collective bargaining or litigation if an open collective bargaining or litigation if an open meeting may have a detrimental effect on meeting may have a detrimental effect on the bargaining or litigating position of the the bargaining or litigating position of the public body public body and the chair so declaresand the chair so declares …” …”
Executive Sessions (cont.)Executive Sessions (cont.) For purposes of discussing litigation strategy a For purposes of discussing litigation strategy a
public body may enter executive session to public body may enter executive session to discuss pending litigation.discuss pending litigation.
A public body may also enter executive session A public body may also enter executive session when it is reasonable to anticipate litigation in when it is reasonable to anticipate litigation in response to certain actions the public body may response to certain actions the public body may take and where it is necessary to discuss the take and where it is necessary to discuss the potential legal consequences of such actions.potential legal consequences of such actions.
See OML 2012-05 (Hardwick).See OML 2012-05 (Hardwick).
Executive Sessions (cont.)Executive Sessions (cont.) For purposes of discussing litigation strategy, For purposes of discussing litigation strategy,
the public body may invite Town employees the public body may invite Town employees and consultants to participate in the executive and consultants to participate in the executive session if such individuals are in a position to session if such individuals are in a position to assist the Body in its deliberations.assist the Body in its deliberations.
This includes the Town’s attorneys, expert This includes the Town’s attorneys, expert witnesses and other consultants.witnesses and other consultants.
The Body may also invite any other individuals The Body may also invite any other individuals who have particular information or expertise who have particular information or expertise useful to the board in conducting its useful to the board in conducting its deliberations.deliberations.
The Body may The Body may notnot invite opposing parties. invite opposing parties.
Executive Session MinutesExecutive Session Minutes
Must be disclosed when purpose of Must be disclosed when purpose of exemption has been met, unless otherwise exemption has been met, unless otherwise protectedprotected
Must be reviewed periodically by chair or Must be reviewed periodically by chair or public bodypublic body
Must be provided within 10 days in response Must be provided within 10 days in response to request, unless review not yet undertaken to request, unless review not yet undertaken (then by board’s next meeting or 30 days, (then by board’s next meeting or 30 days, whichever occurs first)whichever occurs first)
Executive Session Minutes (cont.)
Must also contain: The roll call vote of each member to go
into executive session; Cited statutory purpose of the executive
session; and Whether the governmental body will
return to public session after the executive session is concluded.
Administrative MattersAdministrative Matters
Allows remote participation in meetings in Allows remote participation in meetings in accordance with AG Regulations.accordance with AG Regulations.
Requires permission of chair to address Requires permission of chair to address meeting (no change).meeting (no change).
Certification of receipt of OML, regulations Certification of receipt of OML, regulations and AG educational materials; held by and AG educational materials; held by appointing authority, city/town clerk; must be appointing authority, city/town clerk; must be provided within 2 weeks of taking office. provided within 2 weeks of taking office.
Administrative Matters Administrative Matters (cont.)(cont.) Remote Participation is allowed under the following Remote Participation is allowed under the following
circumstances:circumstances: The Board of Selectmen votes to authorize remote The Board of Selectmen votes to authorize remote
participation for all public bodies of the Town;participation for all public bodies of the Town;
Telephone, internet or satellite enabled audio or video Telephone, internet or satellite enabled audio or video conferencing allowed. All persons in attendance must be conferencing allowed. All persons in attendance must be able to see and hear;able to see and hear;
A quorum of the body must be physically present and all A quorum of the body must be physically present and all votes are to be by roll call;votes are to be by roll call;
Reasons are limited-to personal illness, personal Reasons are limited-to personal illness, personal disability, emergency, military or geographic distance; anddisability, emergency, military or geographic distance; and
Member must notify the chair in advance and chair must Member must notify the chair in advance and chair must make announcement at beginning of meetingmake announcement at beginning of meeting..
Administrative Matters Administrative Matters (cont.)(cont.)
RecordingRecording Person seeking to record meeting must notify chair; Person seeking to record meeting must notify chair; Chair must notify meeting that it is being recorded;Chair must notify meeting that it is being recorded; Recording, including transmission through any Recording, including transmission through any
medium, is “subject to reasonable requirements of medium, is “subject to reasonable requirements of the chair as to the number, placement and the chair as to the number, placement and operation of equipment used so as not to interfere operation of equipment used so as not to interfere with the conduct of the meeting.”with the conduct of the meeting.”
Appears intended to address inconsistency between Appears intended to address inconsistency between former OML and so-called State Wiretap Statute, G.L. former OML and so-called State Wiretap Statute, G.L. c. 272, §99, which prohibits secret recordings of oral c. 272, §99, which prohibits secret recordings of oral communications. communications.
Public Records Law All e-mail or forms of electronic
communication related to municipal business is likely to be considered a public record.
Whether municipal-related e-mail or other electronic communication is created at Town Hall or on a person’s private computer, it is likely considered a public record subject to all requirements of the Public Records Law.
Public Records Law (cont.)
If a violation of the Open Meeting Law occurs as a result of such electronic communication, one remedy often required by the district attorneys was the production of the communication, and the placement of the same as an addendum to the minutes of a properly posted meeting or filed with the Town Clerk.
Role of the Attorney General’s Role of the Attorney General’s OfficeOffice
Oversight and enforcement of OMLOversight and enforcement of OML
May void action taken in violation of OMLMay void action taken in violation of OML
May reinstate employee if violation found May reinstate employee if violation found regarding employment actionregarding employment action
Promulgate rules and regulations, interpret Promulgate rules and regulations, interpret OML and issue written letter rulings or OML and issue written letter rulings or advisory opinionsadvisory opinions
EnforcementEnforcement
Filing ComplaintFiling Complaint Must first file written complaint with Must first file written complaint with public bodypublic body
within 30 days of alleged violationwithin 30 days of alleged violation
Public body must forward complaint to AG within Public body must forward complaint to AG within 14 days of receipt and inform AG of any 14 days of receipt and inform AG of any remedial action takenremedial action taken
Not less than 30 days after date complaint was Not less than 30 days after date complaint was filed with public body, complainant may file a filed with public body, complainant may file a complaint with AG.complaint with AG.
Enforcement (cont.)Enforcement (cont.)
Remedial action may include:Remedial action may include: Making minutes of improperly called or held Making minutes of improperly called or held
executive session public by including them executive session public by including them as an addendum to minutes at a properly as an addendum to minutes at a properly called meeting, or filing with Town Clerkcalled meeting, or filing with Town Clerk
Creating minutes if the same were not Creating minutes if the same were not properly createdproperly created
Providing for public debate and voting on Providing for public debate and voting on matters considered at an improperly called matters considered at an improperly called or held meetingor held meeting
Enforcement (cont.)Enforcement (cont.)
Cure - Consistent with prior case law, the Cure - Consistent with prior case law, the AG recognizes: “Public deliberation (at a AG recognizes: “Public deliberation (at a properly posted open meeting) effectively properly posted open meeting) effectively cured the private discussion which occurred cured the private discussion which occurred over email because it enabled the public to over email because it enabled the public to see the discussion that went into the see the discussion that went into the creation of the policy. To cure a violation of creation of the policy. To cure a violation of the Open Meeting Law, a public body must the Open Meeting Law, a public body must make an independent deliberative action, make an independent deliberative action, and to merely a ceremonial acceptance or and to merely a ceremonial acceptance or perfunctory ratification of a secret decision.” perfunctory ratification of a secret decision.” See In OML 2011-14 (Wakefield)See In OML 2011-14 (Wakefield)
Enforcement (cont.)Enforcement (cont.)
Review by the Attorney GeneralReview by the Attorney General
Whether there has been a violationWhether there has been a violation Must hold a hearing before imposing civil Must hold a hearing before imposing civil
penaltypenalty If a violation is determined to have If a violation is determined to have
occurred, the AG must determine occurred, the AG must determine whether the public body, or one or more whether the public body, or one or more of its members, or both, are responsible, of its members, or both, are responsible, and whether the violation was intentional and whether the violation was intentional or unintentionalor unintentional
Enforcement (cont.)Enforcement (cont.)
Upon the finding of a violation, the AG may issue an Upon the finding of a violation, the AG may issue an order to:order to:
Compel immediate and future compliance with OML;Compel immediate and future compliance with OML; Compel attendance at authorized training session;Compel attendance at authorized training session; Nullify in whole or in part any action taken at meeting;Nullify in whole or in part any action taken at meeting; Impose civil penalty upon public body of not more than Impose civil penalty upon public body of not more than
$1,000 for each $1,000 for each intentionalintentional violation; violation; Reinstate employee without loss of compensation, Reinstate employee without loss of compensation,
seniority, tenure or other benefits;seniority, tenure or other benefits; Compel that minutes, records or other materials be made Compel that minutes, records or other materials be made
public; orpublic; or Prescribe other appropriate action.Prescribe other appropriate action.
Enforcement (cont.)Enforcement (cont.)
Judicial Review of AG OrderJudicial Review of AG Order A public body or any member aggrieved A public body or any member aggrieved
by order may file certiorari action in by order may file certiorari action in Superior Court within 21 days of receipt Superior Court within 21 days of receipt of orderof order
AG order stayed pending judicial review AG order stayed pending judicial review If AG order nullifies action, public body If AG order nullifies action, public body
shall not implement actionshall not implement action
Enforcement (cont.)Enforcement (cont.)
ComplianceCompliance AG may file action in Superior Court to AG may file action in Superior Court to
compel compliance with order or payment compel compliance with order or payment of civil penaltyof civil penalty
Alternative procedureAlternative procedure AG or 3 or more registered voters may AG or 3 or more registered voters may
initiate civil action in Superior Court to initiate civil action in Superior Court to enforce OMLenforce OML
Enforcement (cont.)Enforcement (cont.)
Burden of proofBurden of proof Burden on public body to show by a Burden on public body to show by a
preponderance of the evidence that the preponderance of the evidence that the action complained of was in accordance action complained of was in accordance with and authorized by OMLwith and authorized by OML
Advice of counsel defense Advice of counsel defense Defense to imposition of civil penalty that Defense to imposition of civil penalty that
public body acted in good faith compliance public body acted in good faith compliance on advice of legal counselon advice of legal counsel
Resources
Attorney General’s Division of Open Government
http://www.mass.gov/?pageID=cagosubtopic&L=3&L0=Home&L1=Government&L2=The+Open+Meeting+Law&sid=Cago
Phone: (617) 963-2540
Resources
Secretary of the Commonwealth’s Public Records Division
http://www.sec.state.ma.us/pre/
Phone: (617) 727-2832
Contact InformationContact Information
Gregg J. Corbo, Esq.Gregg J. Corbo, Esq.
Kopelman and Paige, P.C.Kopelman and Paige, P.C.
101 Arch Street, 12101 Arch Street, 12thth Floor Floor
Boston, MA 02110Boston, MA 02110
(617) 556-0007(617) 556-0007
http://www.k-plaw.com
