Friday, September 18, 2009
Understanding the Massachusetts Open Meeting Law
[Ed note: The following article is based on one printed in the Mosquito on September 14, 2007.]
Ever wonder whether town boards can use email to work between meetings? Or why residents are allowed to attend some town government meetings but are excluded from others? The Massachusetts Open Meeting Law affects us all by defining the framework for interaction between the public and Carlisle’s many town boards, committees and commissions.
Middlesex District Attorney Gerard Leone, Jr. is responsible for enforcement, and his office has issued a set of Open Meeting Guidelines. This article will attempt to summarize the Law and Guidelines.
Government in the open
All meetings of government entities are to be held in public, except under a limited set of circumstances. Public notice must be given for all but emergency meetings, and accurate minutes are to be taken and made available to the public.
Massachusetts General Law Chapter 39, Section 23B, known as the Open Meeting Law, was first written in 1958 and has been amended several times over the years. Town Clerk Charlene Hinton says that during 2009 the state legislature has been considering a new revision. She expects the changes will not involve major deletions, but rather clarifications and “some requirements will be expanded.” The topic will be discussed at a Massachusetts Town Clerks conference that she plans to attend next week.
The current Guidelines state, “The requirements of the Open Meeting Law grow out of the idea that the democratic process depends on the public having knowledge about the considerations underlying governmental action, for without that knowledge people are not able to judge the merits of action taken by their representatives.”
The law covers government meetings of “every board, commission, committee or subcommittee of any district, city, region or town...” For example, an advisory subcommittee making recommendations to another board would fall under the Open Meeting Law. (Excluded is the special case of a subcommittee that simply reviews compliance with state and federal regulations.) The law does not relate to staff meetings called by a town or department administrator.
The Open Meeting Law applies whenever a majority, or quorum, of a committee meets and discusses business of the committee. In the case of a subcommmittee, the quorum requirement applies to the subcommittee members, not how many members of the parent committee attend the subcommittee meeting. The law does not apply to project site inspections.
Social gatherings or chance meetings are allowed at which business may be mentioned, as long as no decisions are made. However, “The Law specifically states that chance or social meetings are not to be used to circumvent the letter or spirit of the Law.” The Guidelines give a hypothetical example, “Two days after a so-called chance or social meeting at which members of a school committee discussed the closing of a school, the school committee convened in an open meeting and without discussion ratified a determination about the closing that had been reached at the earlier “chance” meeting. These facts suggest that the chance or social meeting may have been used in circumvention of the requirements of the law.”
Notice of meetings
Meeting notices are to be filed with the Town Clerk, and notice must be posted at least 48 hours before the meeting (including Saturdays but not Sundays or legal holidays). Since regional school districts involve multiple towns, their committee meetings are to be filed with each Town Clerk.
Notices are to contain the time, date, and place of the meeting. Posting a proposed agenda is optional.
The Guidelines define an emergency as “a sudden, generally unexpected occurrence or set of circumstances demanding immediate action.” The emergency must relate to the functions of the governmental entity, not people involved in the meeting. For example, it would not qualify as an emergency if delay in granting a requested permit might jeopardize an applicant’s property sale. A valid emergency would be a selectmen’s meeting called to respond to flooding after severe rainstorms.
“While emergency meetings do not have the 48-hour posting requirement, the guidelines state that government bodies “should give as much public notice as is possible in the circumstances.”
“If it becomes necessary to adjourn or extend a meeting to another time,” the Guidelines state, “the District Attorney has interpreted the Open Meeting Law’s notice requirements to apply to the adjourned or extended meeting.” Unless the adjourned meeting qualifies as an emergency meeting, it must be delayed until it can be posted for 48 hours. However, if a group knows ahead of time that they will need to adjourn, they may post notice for both the initial and adjourned meetings simultaneously.
The Open Meeting Law requires groups to take minutes of all their meetings. The minutes — and even draft minutes and notes — are public property, as the Guidelines explain: “In general, the minutes of a meeting become public records from the moment they are created. This is true regardless of the form in which they may first appear, i.e., stenographic notes, handwritten notes, or tape recordings. The governmental body may not require that it vote to adopt or approve for release open session minutes before they may be released to the public, even though the minutes may be only in draft form at the time of the request.”
However, the guidelines allow the notes or tape to be destroyed once the permanent written minutes are available.
Public requests for minutes “must be honored promptly, but no later than ten days from the date of the request.” Minutes may be inspected or copied for the public, and boards can charge a copying fee.
Anyone attending a public meeting can openly, but not secretly, tape it. The Guidelines state that anyone taping should “advise the chairperson in advance.” The law allows video as well as audio recording, but recording devices must be kept in fixed locations and avoid “active interference with the conduct of the meeting.”
Use of phone
Limitations on how board members can communicate by phone or e-mail without violating the Open Meeting Law are spelled out in the Guidelines: “Discussions by telephone among a quorum of members of a governmental body on an issue of public business within the jurisdiction of the body are a violation of the law. This is true even where individual telephone conversations involving a quorum occur in serial fashion.”
Use of email
“Despite the convenience and speed of communication by email,” the Guidelines state, “its use by members of a governmental body carries a high risk of violating the law.”
E-mails about meeting cancellations, scheduling, or to place topics on the agenda are allowed. However, other topics are discouraged: “The utmost care should be taken not to utilize such communications to poll board members or otherwise engage in deliberations or substantive discussion on a matter within the governmental body’s jurisdiction.”
“Additionally, whenever a member of a governmental body sends or receives an email message, the District Attorney recommends that a hard copy be created and immediately placed in a central file, where it can be provided as a public record on request.”
Just as serial phone conversations can become a de facto quorum, “Members of governmental bodies should also be cautious about communicating via e-mail one-on-one. This is because private, serial conversations may reach a quorum of members without the knowledge of all participants. Private, serial discussions of public business involving a quorum violate the law regardless of the knowledge or intent of the parties.”
When privacy is allowed -
The law recognizes a limited set of circumstances when a board or committee is allowed to hold closed-door “executive” sessions. Before holding such a secret session, a board must first convene an open meeting, take a roll-call vote to enter executive session, give a reason for the executive session, and announce whether the group will reconvene in an open meeting after the executive session.
Nine reasons for secrecy
The legal reasons for executive sessions are:
1. Reputation. “To discuss the reputation, character, physical condition or mental health rather than the professional competence of an individual.”
The guidelines admit that “it is difficult, for example, to draw any bright lines between ‘professional competence’ on the one hand, and ‘reputation’ or ‘character’ on the other.” However, it says that discussion during routine performance evaluations and applications for a professional job “would center on ‘professional competence’ and could not be conducted in an executive session on the basis of this exemption.”
Similarly, written performance evaluations by committee members are “part of the deliberative process” and are part of the public record of the meeting “and should be appended to the minutes.”
2. Complaints. “To consider the discipline or dismissal of, or to hear complaints or charges brought against, a public officer, employee, staff member, or individual.”
3. Negotiating strategy.” To discuss strategy with respect to collective bargaining or litigation if any open meeting may have a detrimental effect on the bargaining or litigating position of the governementatl body, to conduct strategy sessions in preparation for negotiations with non-union personnel, to conduct collective bargaining sessions or contract negotiations with non-union personnel.”
The guidelines reiterate, “Routine performance evaluations may not be conducted during an executive session held for the purpose of negotiating a contract.”
If the executive session is held to discuss strategy during litigation, the minutes are to be released once the litigation ends.
4. Security.” To discuss the deployment of security personnel or devices.”
5. Criminal charges. “To investigate charges of criminal misconduct or to discuss the filing of criminal complaints.”
6. Purchase negotiations. “To consider the purchase, exchange, lease or value of real property, if such discussions may have a detrimental effect on the negotiating position of the governmental body and a person, firm or corporation.”
According to the guidelines, “Once the purchase, exchange, lease, or other transaction is concluded, the minutes must be released.”
7. Other laws. To comply with the provisions of any general or special law or federal grant-in-aid requirements.
8. Preliminary job screening. “To consider and interview applicants for employment by a preliminary screening committee.”
If a board does not use a preliminary screening subcommittee, then it may discuss applications in executive session prior to the semi-finalist stage. From that point on, the guidelines state that discussions are to be in open meetings, “since the public’s right to know who is being considered for a high-ranking public position increases as the list of applicants is narrowed.”
“Other matters such as the hiring process, criteria for selecting candidates, or recruiting strategies must be discussed publicly,” according to the District Attorney’s Guidelines.
9. Mediation. “To meet or confer with a mediator, as defined in Section 23C of Chapter 233, with respect to any litigation or decision on any public business within its jurisdiction involving another party, group or body, provided that: a) any decision to participate in mediation shall be made in open meeting session and the parties, issues involved and purpose of the mediation shall be disclosed; and b) no action shall be taken by any governmental body with respect to those issues which are the subject of the mediation without deliberation and approval for such action at an open meeting after such notice as may be required in this section.”
Minutes of secret meetings
The law requires that minutes be taken of executive sessions, just as for open meetings, and are to include: the meeting time, date, place, members present or absent, and actions taken. Unlike open meetings, all votes taken during executive session must be by roll-call and must be recorded in the minutes.
When to let go of the secrets?
The law states: “the records of any executive session may remain secret as long as publication may defeat the lawful purposes of the executive session, but no longer.”
Weighing the public’s rights to information against the needs for confidentiality can be difficult, and the guidelines recommend boards “adopt a policy requiring the periodic review of unreleased executive session minutes. Such a policy will help ensure that closed session minutes are kept secret only as long as needed and as authorized under the law. The burden to show a continuing need for secrecy, based on the original, lawful purposes of the executive session, rests with the governmental body.”
A copy of the guidelines, which also contains the text of the Open Meeting Law, can be found online at: www.carlislemosquito.org (click on “Resources”). More information is available on-line at: www.mass.gov/legis/laws/mgl/39-23b.htm and www.middlesexda.com. The Middlesex District Attorney’s Office can also be reached at 1-781-897-8300. ∆
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