Friday, June 25, 2010
Town boards alerted to changes in Open Meeting Law
Since first written in 1958, the Massachusetts Open Meeting Law has governed how town boards and committees conduct their business. Members of various Carlisle boards and committees came together on June 9 to learn about recent revisions to the law scheduled to take effect on July 1. The information left some members perplexed.
Normally the law is clarified through guidelines, however a new set of guidelines have not yet been released. Responsibility for the oversight of the Open Meeting Law is being transferred from county district attorneys’ offices to the Attorney General Martha M. Coakley’s Office under a newly created Division of Open Government.
The gist of the Open Meeting Law remains the same – all meetings of town bodies are to be held in public, except under a limited set of circumstances. Public notice of meetings must be given and minutes taken and made available to the public.
Highlights of the revisions were described by Beth Friel and Lou Ross, two representatives from Carlisle’s legal counsel, Deutch, Williams, Brooks, DeRensis, and Holland, P.C. Because of feedback received by the state, there is a possibility that implementation of the changes may be delayed until November, Friel said.
Meetings posted in round-the-clock spots
One of the significant changes involves expanded requirements for posting notice of public meetings. The posting must be in a place which is accessible to the public 24 hours a day. All public meetings must be posted 48 hours before a meeting, and Saturdays, Sundays and legal holidays cannot be counted. The notice must include the agenda, or a list of the topics that the chair “reasonably anticipates” will be discussed, said Friel.
Social functions vs deliberations
The updated law clarifies when a quorum of board members may gather together. The bottom line, Friel said, is that if members of a public body (a board, committee or commission) are discussing topics relating to their function, the meeting must be publically posted. A quorum may gather at a social function or perform on-site inspections without posting a meeting notice as long as no deliberations take place. If deliberations are anticipated to be held, then the gathering must be posted as a public meeting.
“Deliberation” is defined as “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,” or, in other words, said Friel, not just a decision but a conversation that is based on the business of the public body.
She said this rule applies to subcommittees as well as committees. Friel explained the law may not be circumvented by discussions on the phone, through email or any other form. There are a few special exclusions to the rule. For instance, she said that email may be used to distribute agendas, scheduling, and documents. An audience member told Friel his committee holds offsite strategy meetings in members’ homes. Friel discouraged this, saying all meetings must be accessible to the public.
Where to store all the documents?
Friel said the new requirements specify meeting minutes must contain more detailed information. Citizens may request a copy of minutes, even in draft form, and the public body has ten days to respond. One audience member suggested that citizens should attend the meetings if they want to know more details. Friel admitted that some of the updates to the law could be “irritating.” She added that this change was less burdensome than it might appear, because while the minutes must note all materials used at each meeting including documents, recordings, photos, and letters, the law requires just a list of the materials.
Members of one group explained that they record their meetings and type the minutes later. Friel explained that audio recordings must also be kept. Town Clerk Charlene Hinton asked if the materials had to be simply listed, or physically kept in the Town Hall, or another location. Friel explained that the documents must be kept as part of the official record of the meeting, and must be produced when a member of the public requests a copy. She said guidance on where the materials must be kept will come from the state.
The law allows public bodies to post meetings for less than 48 hours only if a legitimate emergency arises, Friel explained. Conservation Commission members, who said their committee had used email discussions when a situation required immediate action, asked for clarification on email use in emergencies, such as when a wetlands is about to be compromised. Friel suggested that public bodies avoid all use of email except for the recognized exceptions.
Closed-door, executive sessions
Friel reminded the audience that a public body which intends to hold an executive session must post the meeting and begin in open session. Before asking the public to leave, she explained, the chair must state the executive session’s purpose, including “everything that may be revealed without compromising the executive session’s purpose.” The chair must also announce whether the open session will reconvene.
A roll call is held of members, she said. A majority of the members must be present and all votes must be entered by roll call into the minutes. Meeting minutes must be as detailed as the those of public meetings. Citizens can request minutes of executive sessions after the meeting is held and the public body has ten days to respond to the request. Minutes that have not been reviewed by the public body must be done so either at the next scheduled meeting or within 30 days, which ever is shorter.
Ten reasons for secrecy
There are now ten reasons allowed for meeting in private, said Friel.
1. Reputation or dismissal. “To discuss the reputation, character, physical condition or mental health rather than the 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.” The individual has the right to be present and to request the meeting be an open session. After July 1 the individual has the right to record the meeting and to have counsel present for the purpose of advising the individual. The professional competence of the individual must be discussed in open session.
2. Contract negotiating strategy.
3. Collective bargaining. “To discuss strategy with respect to collective bargaining or litigation if an open meeting may have a detrimental effect on the bargaining or litigating position of the public body and the chair so declares.”
At the time the public body enters into executive session the chair must explicitly state that holding the discussion in open session would hurt the committee’s bargaining or litigating position.
4. Security issues.
5. Criminal charges. “To investigate charges of criminal misconduct or to consider the filing of criminal complaints.”
6. Purchase negotiations. “To consider the purchase, exchange, lease or value of real property.” The chair must explicitly state that holding the discussion in open session would be detrimental. The public body cannot allow a firm with whom they are negotiating to attend the executive session.
7. To comply with other laws.
8. Preliminary job screening. To consider and interview applicants by a preliminary screening committee if the chair explicitly states that holding the discussion in open session would be detrimental.
9. Mediation. “To meet or confer with a mediator...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 public body with respect to those issues which are the subject of the mediation without deliberation and approval for such action at an open session.
10. (New) To discuss trade secrets or proprietary information by a governmental body acting as an energy supplier under a license granted by the department of public utilities when disclosure would harm its ability to make, sell or distribute energy.
Evaluations – the Wayland decision
Friel discussed evaluations of public officials and gave the audience background information on a legal decision based on the methods used by the Wayland School Committee, called “The Wayland Decision.” The Wayland committee chair asked members, by email, to send their own reflections on the person being evaluated. The chair then created the public evaluation. This is not allowed under the current law, explained Friel, and will also not be allowed under the new law. Instead, she said, members should meet in open session “to discuss the professional competence of the individual.”
She said a draft of the evaluation should not be created before the meeting. The public body would then deliberate in open session until it “reaches the state of deliberations where the preparation and drafting of the written performance evaluation is imminent.” After July 1, the evaluation must be created in public session (before July 1, when members have reached that point they may adjourn to executive session to draft the evaluation).
“Simply put,” she said, “the public will have access to any evaluations created by members of the public body.” If material from a non-member relating to the evaluation is provided to the public body, the material may be kept from public view.
Complaints first handled locally
Citizens have 30 days after an alleged violation of the Open Meeting Law to file a complaint with the board or committee. A copy of the complaint must be sent to the Attorney General within 14 days, including any remedial action taken. Friel said the Attorney General “holds a hearing before imposing a civil penalty.” Remedies to a violation may include a civil penalty of up to $1,000 for each intentional violation.
Hinton said that she will include the new information in the Committee Member Handbook which is given to each new committee or board member.∆
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