Transcript Open Meeting Law

Open Meeting Law
All underlined text in this presentation is
drawn from Emergency Regulations, which
are still subject to revision by the Attorney
General before becoming final regulations.
In Sum: the underlined text is subject to
change after the notice & comment
period, scheduled to end at 5:00 p.m. on
August 18, 2010.
Open Meeting Law
M.G.L. c. 30A §§ 18-25
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Presentation Outline:
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Definitions
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Before an Open Meeting
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During an Open Meeting
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Executive Session
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After the Open Meeting
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Enforcement
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Summary
Today’s Question
What can you do to ensure the Public Body’s
deliberations are OPEN to the public
Before, During, & After a meeting?
Definitions Under OML
Meetings &
Deliberations
What is a Meeting?
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The Law’s Definition:
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A deliberation by a public body with
respect to any matter within the body’s
jurisdiction
Definition: Deliberation
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Oral, written or email communications
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On public business
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Between or among a quorum of a public
body
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Quorum: Majority of members
Subcommittees: included in definition of
public body (multiple-member body created to
advise or make recommendations)
Gathering is Not a Meeting IF:
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The Members Do Not Deliberate
AND
The gathering is
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An on-site inspection of a project or program
A public or private gathering, including a
conference or training program or a media, social, or
other event
The attendance by a quorum at a meeting of
another public body that complied with open
meeting law
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If the visiting members communicate only by open
participation in the meeting on those matters discussed by
the host body
Special Exclusions
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Distributing meeting agenda
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Distributing schedule Info
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Distributing reports or documents that
may be discussed at the meeting
Deciding scheduling
Recent SJC Guidance
The Technicalities of “Deliberation”
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May not avoid OML requirements to defeat
fundamental purpose of the law.
Governmental bodies may not circumvent…the
open meeting law by conducting deliberations
via private messages, whether
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electronically
in person
over the telephone
or in any other form
Before the Open Meeting
Posting Notice
Notice Must Include:
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Date & Time
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Of the meeting
Of the posting
Place
Topics the chair anticipates discussing:
with sufficient specificity to reasonably
advise the public of the issues to be
discussed at the meeting
Posting Requirements
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Hard Copy
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48 hours prior to meeting
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Attorney General May Approve Electronic
Format
Excluding Saturdays, Sundays & legal holidays
Emergency Exception: sudden, generally
unexpected occurrence or set of circumstances
demanding immediate action. Post as soon as
reasonably possible
Conspicuous, Legible, &
Easily- Understandable Format
Where to Post Notice
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Local Public Body: File with municipal clerk,
and post where conspicuously visible to the
public at all hours inside or on clerk’s office’s
building
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County Public Body: File in the office of
the county commissioners and post where
commissioners designate
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Regional or District Public Body: File
and post in each city or town within the
Emergency Regs: Notice
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Municipal Clerk files written notice with
Attorney General of the municipality’s
posting method and any changes to it
If Posting Is Not Visible at All Hours:
post description of alternative method
at main and handicapped entrances to
municipal clerk’s building
Emergency Regs: 1st Alternative
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Website:
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Post notice on municipal website AND post
notice or provide internet access in an alternate
municipal building where notice is accessible at
all hours
Emergency Regs: 2nd Alternative
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Cable T.V.:
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Post notice of meetings on cable television AND
post notice or provide cable television access in
an alternate municipal building where the notice
is accessible at all hours
Emergency Regs: 3rd Alternative
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Newspaper:
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Post notice in a newspaper of general circulation
in the municipality AND post notice or a copy of
the newspaper containing notice at an alternate
municipal building where the notice is accessible
at all hours
Emergency Regs: 4th Alternative
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Computer Monitor:
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Place a computer monitor or electronic or
physical bulletin board displaying meeting notices
on or in a door, window, or near the entrance of
the municipal building in which the clerk’s office
is located in such a manner as to be visible to the
public from outside the building
Emergency Regs: 5th Alternative
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Audio Recording:
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Provide an audio recording of meeting notices,
available to the public by telephone at all hours
During the Open Meeting
Access & Participation
During the Open Meeting
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Remote participation if A.G. approves it
Recording (chair must inform attendees of
any recordings)
Addressing the meeting (requires
permission of chair)
Executive Session
Purposes & Procedures
10 Purposes: M.G.L. c. 30A §
21(a)
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§ 21(a)(1): To discuss an individual, public
officer, employee or staff member’s
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Reputation
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Character
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Physical condition, or
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Mental health
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Discipline or dismissal, complaints or
charges against the individual
Discussing Individuals
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Open Session
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Professional competence
At individual’s request
Executive Session
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Reputation, character, physical condition, mental
health
Discipline or dismissal, complaints or charges against,
employee
Performance Evaluations
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New Definition of Personnel
Information Excludes Materials Used
in a Performance Evaluation:
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Bearing on an individual’s professional
competence
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If created by members of the public body
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For the purposes of the evaluation
Evaluations Open to Scrutiny
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Simply put, under the new law:
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The public may access any evaluations created
by members of the public body
The public is allowed to scrutinize the
board’s judgment of the people it evaluates
Individual’s Rights
in Executive Session
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To receive written notice at least 48 hours prior
to executive session
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To be present
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To speak on his own behalf
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To create an independent record by audio
recording or transcription
To have Counsel or Representative present for
purpose of advising (not for participation)
10 Purposes: (cont’d)
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§ 21(a)(2): Strategy session for negotiations,
collective bargaining sessions, or contract
negotiations with nonunion personnel
§ 21(a)(3): Strategy session respecting
collective bargaining or litigation if an
open meeting will hurt Committee’s bargaining
or litigating position AND the chair so declares
§ 21(a)(4): Security personnel or device
deployment or strategy
10 Purposes: (cont’d)
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§ 21(a)(5): Investigate charges of criminal
misconduct or consider filing criminal complaints
§ 21(a)(6): Consider purchase, exchange, lease
or value of real estate if open discussion would
hurt Committee’s negotiating position
§ 21(a)(7): Comply with any general law,
special law, or federal grant-in-aid requirements
10 Purposes: (cont’d)
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§ 21(a)(8): Consider or interview applicants
by a preliminary screening committee
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If chair declares an open meeting will have a detrimental
effect in obtaining qualified applicants
Not if applicants have already passed an initial
screening committee
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§ 21(a)(9): Meet or confer with mediator
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§ 21(a)(10): Discuss trade secrets
Procedure
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Convene an open session first
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Vote to enter executive session
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Roll call vote
Majority of all committee members (regardless of attendance
at the meeting)
Votes entered into minutes
Chair states executive session’s purpose, including
everything that may be revealed without
compromising executive session’s purpose
Chair announces whether open session will reconvene
After the Open Meeting
Minutes & Public Records
Minutes Include:
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Date, Time, Place
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Members Present/Absent
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List of All Documents Used at Meeting
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(Full copies need NOT be part of minutes, but they ARE part of
the record and must be kept for public access.)
Discussion Summary
of Each & Every Topic
Record of All Votes
Decisions Made
& Actions Taken
After the Open Meeting
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Make Minutes Available on Request
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Draft form or approved
Including photos, recordings, maps used
at meeting
Within 10 days of request
Public Record Includes:
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Minutes
Notes, Recordings, & Other Materials
Used to Prepare Minutes
All Documents and Exhibits Used at
Meeting
Public Record &
Applicants for Hire
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Materials used in deliberations about
hiring of individuals
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Applications and supporting materials
are excluded from public record
Resumes are included in the public
record
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Indefinitely Withheld from
Public:
Personnel files
Medical files & employee personal materials if
disclosure would be an invasion of personal
privacy
Attorney-client privileged communications
Information and records acquired by the Office of
the Child Advocate
Law Enforcement’s investigatory materials that, if
disclosed, would prejudice enforcement of the law
Executive Session Minutes
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Same Content Requirement as Open
Session Minutes
May Withhold Only Until Release No
Longer Defeats the Purpose of the Executive
Session
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Must have been proper executive session:
purpose and procedure
May be withheld in their entirety
After the Executive Session
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Must Respond within 10 days of request
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Release if the committee has reviewed and
minutes are no longer exempt
-OR-
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Review at next committee meeting or in 30
days, whichever is shorter
Release entire non-exempt minutes or
portions thereof
Enforcement
Prosecution & Defense
Enforcing Open Meeting Law
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Administrative Decision: decided by A.G.
after considering body’s remedial actions
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File complaint on OML complaint form with municipal
clerk or public body within 30 days
Public body forwards complaint to AG along with
description of remedial actions within 14 days unless AG
grants an extension. Notify complainant the public
body forwarded complaint to AG
AG holds hearing before imposing civil penalty
Superior Court Alternative: 3 registered
voters or A.G. brings civil action
Remedies
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Nullify all or part of any action taken at the meeting
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Compel immediate and future compliance
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Compel minutes to be made public
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Reinstate an employee with back pay
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Compel attendance at training session
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Impose a civil penalty up to $1,000 for each intentional
violation
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Other appropriate action
Enforcing Open Meeting Law
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Defense:
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after full disclosure
the public body acted in good faith
compliance
with advice of the public body’s legal
counsel.
Summary
Quick Review
Summary
Before the Open Meeting
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Meeting
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Doesn’t include: distributing agenda,
schedules, or documents that may be
discussed at the meeting
Notice must be posted 48 hours prior to
meeting & must include: date, time, place,
& topics the chair anticipates discussing
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Exception: EMERGENCY
Summary
During the Open Meeting
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Deliberations of the public body must be
open to the public.
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The public does not have a right to participate
at will
The public must be able to know what
happened
There are specified purposes for executive
session
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Must follow proper procedure to enter executive
session
Summary
After the Open Meeting
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Minutes of Open Sessions & Executive
Sessions must be equally thorough
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Include date, time, place, members
present/absent, list of documents used at
meeting, discussion summary of every topic,
decisions made & actions taken, record of all
votes
Summary
After the Open Meeting
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Entirety of a Meeting’s Record:
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minutes, notes, recordings, other materials
used to prepare minutes, & all
documents and exhibits used at
meeting
Respond to all Public Records
Requests under Open Meeting Law
within 10 days
Summary
After the Closed Meeting
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Request for Executive Session
Minutes:
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Release upon committee’s review and
determination the minutes are no longer
exempt
www.dwboston.com
(617) 951-2300
THANK YOU.
QUESTIONS?
Comment on emergency regulations by emailing
open [email protected] or by mailing comments to
Office of the Attorney General
Division of Open Government
One Ashburton Place, 20th Fl.
Boston, MA 02108