THE MASSACHUSETTS OPEN MEETING LAW Mary Jo Hollender, Esquire Hollender & Carey, L.L.P November 8, 2007

OVERVIEW Purpose of Open Meeting Law:  To eliminate secrecy surrounding the deliberative and decision-making processes of government.  With the Public Records Law, to require governmental bodies to maintain accurate records of their meetings.

THREE OPEN MEETING LAWS  G.L. c. 30A, §§11A, 11A½ Applies to the state  G.L. c. 34, §§9F, 9G and 10 Applies to counties  G.L. c. 39, §§23A, 23B, 23C and 24 Applies to municipalities

GOVERNMENTAL BODY  “... the governing board or body of any authority established by the general court to serve a public purpose in the commonwealth or any part thereof...” G.L. c. 30A, §11A

BODIES INCLUDED  Subcommittees and special committees of a governmental body are covered, even if their authority is limited. Nigro v. Conservation Commission of Canton, 17 Mass. App. Ct. 433, 436 (1984).

BODIES EXCLUDED  Individual school officials are not covered; therefore, committees established to assist such school officials are not covered. Connelly v. School Committee of Hanover, 409 Mass. 232, (1991).

 A single member of a governmental body is not a subcommittee, even if acting on behalf of the body. Pearson v. Board of Selectmen of Longmeadow, 49 Mass. App. Ct. 119 (2000).

MEETINGS  “Any corporal convening and deliberation of a governmental body, for which a quorum is required in order to make a decision, at which any public policy matter over which the governmental body has supervision, control, jurisdiction or advisory power is discussed or considered...” G.L. c. 30A, §11A

QUORUM  “A simple majority of a governmental body unless otherwise defined by constitution, charter, rule or law applicable to such governmental body.” G.L. c. 30A, §11A

DELIBERATIONS  “A verbal exchange between a quorum of members of a governmental body attempting to arrive at a decision on any public business within its jurisdiction.” G.L. c. 30A, §11A, District Attorney v. Selectmen of Middleborough, 395 Mass. 629 (1985).

 Governmental body that interviewed candidates for employment engaged in “deliberations,” even though members only asked questions of the candidates and did not speak among themselves. Gerstein v. Superintendent Search Screening Committee, 405 Mass. 465, (1989).

CHANCE OR SOCIAL MEETINGS  Chance meetings or social meetings are not covered, even if official business is discussed, so long as no final agreement is reached and meeting is not used to circumvent the spirit or requirements of the law.

NOTICE  Must be filed with Secretary of State and posted in the Office of Executive Office of Administration and Finance.  Must be filed at least forty-eight hours, including Saturdays but not Sundays and legal holidays, prior to the time of the meeting.

 Must include date, time and place of meeting.  Is responsibility of officer calling meeting.

EMERGENCY  “A sudden, generally unexpected occurrence or set of circumstances demanding immediate attention.” G.L. c. 30A, §11A; Pentecost v. Town of Spencer, 29 Mass. App. Ct. 991 (1990).

 Emergency must relate directly to functions and responsibilities of governmental body;  Convenience or needs of a party (e.g., scheduling conflicts) does not create emergency;  Circumstances must be such that meeting cannot be delayed for 48 hours.

CONDUCT OF PUBLIC MEETING  Must be open to the public, unless a validly convened executive session.  Must be held in a location that is accessible to disabled persons.  Should be held in a location that is large enough to accommodate the number of people who reasonably are expected to attend.

RECORDING OF MEETINGS  Public meetings may be recorded by tape recorder or any other means of sonic reproduction, provided that such recording does not actively interfere with the conduct of the meeting.  G.L. c. 39, §23B was amended in 1987 to allow use of video recording equipment; G.L. c. 30A, §11A½ was not.

AUTHORITY OF PRESIDING OFFICER  Must give permission before member of public is entitled to speak.  May take necessary steps to maintain order at meetings, including requiring disorderly persons to leave meeting.

RECORD-KEEPING REQUIREMENTS  Governmental bodies must prepare minutes of meetings; however, verbatim transcripts of public or executive sessions are not required. Perryman v. School Committee of Boston, 17 Mass. App. Ct. 346 (1983).

 Records of governmental bodies must be put into written form and preserved indefinitely.  Tapes may not be used as permanent records of meetings. Until erased, however, they are public records that must be made available for inspection and copying, upon request, unless protected by executive session considerations.

CONTENT OF RECORDS  Must include the following information: Date, time and place of meeting; Members present and members absent; Subjects discussed; and Record of votes and official actions taken.

 Meeting records must be made available to the public, upon request, at reasonable times and in a reasonable place.

EXECUTIVE SESSION PROCEDURES  Reasons for meeting in private are specific and limited.  The decision to convene in executive session must be approved in public session by a recorded roll-call vote, with a majority in the affirmative.

 The motion to convene in executive session should be specific as to the purpose for the executive session, and should reference all applicable exemptions. See, Witwicki v. Beverly School Committee, Essex Supr. Ct., January 14, (Assistant superintendent's contract invalidated, because it was adopted during executive session called to discuss "collective bargaining strategy" rather than "contract negotiations with nonunion personnel").

 Before the vote is taken, the presiding officer must indicate whether the governmental body will reconvene in open session at the conclusion of the executive session.

EXECUTIVE SESSION PURPOSES 1 AND 2 1.To discuss the reputation, character, physical condition or mental health of a particular individual. 2.To consider the discipline or dismissal of, or to hear complaints or charges brought against, an individual.

INDIVIDUAL RIGHTS Under Purposes 1 and 2, an individual who is the subject of discussion has the following rights, which may be waived:  To receive 48-hours notice of the executive session;  To attend the meeting during discussions or considerations involving him/her;

 To speak in his/her own behalf;  To be accompanied by counsel or another representative, who may advise the individual but has no right to participate in the meeting; and  To insist that the meeting be conduct in open session, rather than executive session.

EXECUTIVE SESSION PURPOSE 3 3.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 governmental body, and to conduct collective bargaining session.

 This exemption applies only to pending litigation or litigation that is clearly and imminently threatened. It is not enough that another party is represented by counsel and takes a position adverse to the governmental body’s position. Perryman v. School Committee of Boston, 17 Mass. App. Ct. 346 (1983).

 Collective bargaining negotiations include grievance hearings conducted under a collective bargaining agreement.

EXECUTIVE SESSION PURPOSES 4 AND 5 4.To discuss the deployment of security personnel or devices. 5.To investigate charges of criminal misconduct or to discuss the filing of criminal complaints.

EXECUTIVE SESSION PURPOSES 6 AND 7 6.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. 7.To comply with the provisions of any general or special law or federal grant-in- aid requirements.

Unlike G.L. c. 39, §23B, G.L. c. 30A, §11A½ does not allow executive sessions for the following purposes:  To conduct strategy sessions in preparation for negotiations with non-union personnel.  To conduct contract negotiations with non- union personnel.  To consider and interview applicants for employment by a preliminary screening committee or a subcommittee appointed by a governmental body.

EXECUTIVE SESSION RECORDS  Minutes of executive session must be prepared and maintained.  There is no requirement that executive sessions be taped, or that verbatim transcripts be prepared. Perryman v. School Committee of Boston, 17 Mass. App. Ct. 346 (1983).

RELEASE OF EXECUTIVE SESSION RECORDS  Executive session records may remain secret as long as their release may defeat the lawful purpose of the executive session, but no longer.  Release of a portion of an executive session record may be required, while other portions properly may be redacted.

 Governmental bodies should review executive session records from time to time to determine whether they can be released to the public.  Governmental bodies have the burden of establishing the need for secrecy of executive session records.

ENFORCEMENT  The Attorney General enforces G.L. c. 30A, §11A½.  The Attorney General, the District Attorney for the district in which the governmental body is located, or three or more registered voters may seek judicial remedies in the form of injunctive, declaratory, or other appropriate relief.

 Relief may include orders invalidating or rescinding past actions by a governmental body, or requiring public records to be maintained and released to the public.  There is no provision for civil fines under G.L. c. 30A, §11A½, unlike G.L. c. 39, §23B.  Relief under the Open Meeting Law is in addition to other available relief.