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MAPD 2010 - Open meeting
 

MAPD 2010 - Open meeting

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    MAPD 2010 - Open meeting MAPD 2010 - Open meeting Presentation Transcript

    • Overview of the New Open Meeting Law for State and Local Public Bodies June 23, 2010 Chapter 28 of the Acts of 2009, Comparison Corresponding Provisions of the Corresponding Provisions of the Sections 17 through 20 with the Existing Existing provisions of LOCAL Open Meeting Law STATE Open Meeting Law the Existing Open Meeting Law “=” Excerpts from the existing Open Meeting Excerpts from the existing Open Meeting NEW and OLD Law in this column are from G.L. c. 39, Law in this column are from G.L. c. 30A, provision are THE SAME Sections 23A & 23B (the “local” OML). Sections 11A & 11A-1/2AN ACT TO IMPROVE THELAWS RELATING TO “N” NEW provision is aCAMPAIGN FINANCE, ETHICS modification of orAND LOBBYING. change in the OLD provisionBe it enacted by the Senate and “>” For ease of reference: For ease of reference: NEW provision has noHouse of Representatives in General correspondingCourt assembled, and by the provision in the OLD c. 39 = Local Open Meeting Law [G.L. c. c. 39 = Local Open Meeting Law [G.L. c. OML 39, Sections 23A & 23B] 39, Sections 23A & 23B]authority of the same as follows: c. 30A = State Open Meeting Law [G.L. c. c. 30A = State Open Meeting Law [G.L. c. “<” OLD provision has no 30A, Sections 11 & 11A] 30A, Sections 11 & 11A] corresponding c. 34 = County Open Meeting Law [G.L. c. c. 34 = County Open Meeting Law [G.L. c. provision in the NEW 34, Sections 9F & 9G] 34, Sections 9F & 9G] OML 1
    • SECTION 17. Sections 11A and 11A½ of chapter 30A of the General Laws are hereby repealed. SECTION 18. Said chapter 30A is hereby amended by adding the following 8 sections:-Section 18: Definitions Section 23A. Definitions Section 11A: Definitions As used in this section and sections 19 to 25, inclusive, the following words shall, unless The following terms as used in sections The following terms as used in section eleven the context clearly requires otherwise, have twenty-three B and twenty-three C shall A 1/2 shall have the following meanings: the following meanings: have the following meanings:— “Deliberation”, an oral or written N “Deliberation”, a verbal exchange between “Deliberation”, a verbal exchange between communication through any medium, a quorum of members of a governmental a quorum of members of a governmental including electronic mail, between or among body attempting to arrive at a decision on body attempting to arrive at a decision on a quorum of a public body on any public any public business within its jurisdiction. any public business within its jurisdiction. business within its jurisdiction; provided, however, that “deliberation” shall not include the distribution of a meeting agenda, scheduling information or distribution of other procedural meeting or the distribution of reports or documents that may be discussed at a meeting, provided that no opinion of a member is expressed. “Emergency”, a sudden, generally = “Emergency”, a sudden, generally “Emergency”, a sudden, generally unexpected occurrence or set of unexpected occurrence or set of unexpected occurrence or set of circumstances demanding immediate action. circumstances demanding immediate action. circumstances demanding immediate action. “Executive session”, any part of a meeting = “Executive session”, any meeting of a “Executive session”, any meeting or part of of a public body closed to the public for governmental body which is closed to a meeting of a governmental body which is deliberation of certain matters. certain persons for deliberation on certain closed to certain persons for deliberation on matters. certain matters. “Intentional violation”, an act or omission > <Undefined> <Undefined> by a public body or a member thereof, in knowing by violating the open meeting law. “Meeting”, a deliberation by a public body N “Meeting”, any corporal convening and “Meeting”, any corporal convening and with respect to any matter within the body’s deliberation of a governmental body for deliberation of a governmental body for 2
    • jurisdiction; provided, however, “meeting” which a quorum is required in order to which a quorum is required in order toshall not include: make a decision at which any public make a decision at which any public policy business or public policy matter over which matter over which the governmental body(a) an on-site inspection of a project or the governmental body has supervision, has supervision, control, jurisdiction orprogram, so long as the members do not control, jurisdiction or advisory power is advisory power is discussed or considered;deliberate; discussed or considered; but shall not but shall not include any on-site inspection include any on-site inspection of any project of any project or program.(b) attendance by a quorum of a public or program.body at a public or private gathering, ---including a conference or training program ---or a media, social or other event, so long as This section shall not apply to any chancethe members do not deliberate; meeting or social meeting at which matters This section shall not apply to any chance meeting, or a social meeting at which relating to official business are discussed so(c) attendance by a quorum of a public body long as no final agreement is reached. No matters relating to official business areat a meeting of another public body that has discussed so long as no final agreement is chance meeting or social meeting shall becomplied with the notice requirements of the reached. No chance meeting or social used in circumvention of the spirit oropen meeting law, so long as the visiting requirements of this section to discuss or act meeting shall be used in circumvention ofmembers communicate only by open upon a matter over which the governmental the spirit or requirements of this section toparticipation in the meeting on those matters body has supervision, control, jurisdiction, discuss or act upon a matter over which theunder discussion by the host body and do or advisory power. governmental body has supervision, control,not deliberate; jurisdiction or advisory power.(d) a meeting of a quasi-judicial board orcommission held for the sole purpose ofmaking a decision required in anadjudicatory proceeding brought before it;or(e) a session of a town meeting convenedunder section 10 of chapter 39 which wouldinclude the attendance by a quorum of apublic body at any such session.“Minutes”, the written report of a meeting > <Undefined> <Undefined>created by a public body required bysubsection (a) of section 23 and section 5Aof chapter 66.“Open meeting law”, sections 18 to 25, > <Undefined> <Undefined> 3
    • inclusive.“Post notice”, to display conspicuously the > <Undefined> <Undefined>written announcement of a meeting either inhard copy or electronic format.“Preliminary screening”, the initial stage of > <Undefined> <Undefined>screening applicants conducted by acommittee or subcommittee of a public bodysolely for the purpose of providing to thepublic body a list of those applicantsqualified for further consideration orinterview.“Public body”, a multiple-member board, N “Governmental body”, every board, “Governmental body”, a state board,commission, committee or subcommittee commission, committee or subcommittee of committee, special committee,within the executive or legislative branch or any district, city, region or town, however subcommittee or commission, howeverwithin any county, district, city, region or elected, appointed or otherwise constituted, created or constituted within the executivetown, however created, elected, appointed or and the governing board of a local housing, or legislative branch of the commonwealthotherwise constituted, established to serve a redevelopment or similar authority; or the governing board or body of anypublic purpose; provided, however, that the provided, however, that this definition shall authority established by the general court togoverning board of a local housing, not include a town meeting. serve a public purpose in theredevelopment or other similar authority commonwealth or any part thereof, but shallshall be deemed a local public body; not include the general court or theprovided, further, that the governing board committees or recess commissions thereof,or body of any other authority established by or bodies of the judicial branch, or anythe general court to serve a public purpose in meeting of a quasi-judicial board orthe commonwealth or any part thereof shall commission held for the sole purpose ofbe deemed a state public body; provided, making a decision required in anfurther, that “public body” shall not include adjudicatory proceeding brought before it,the general court or the committees or recess nor shall it include the board of bankcommissions thereof, bodies of the judicial incorporation or the Policyholdersbranch or bodies appointed by a Protective Board.constitutional officer solely for the purposeof advising a constitutional officer and shallnot include the board of bank incorporationor the policyholders protective board; andprovided further, that a subcommittee shallinclude any multiple-member body createdto advise or make recommendations to a 4
    • public body.“Quorum”, a simple majority of the = “Quorum”, a simple majority of a “Quorum”, a simple majority of amembers of the public body, unless governmental body unless otherwise governmental body unless otherwiseotherwise provided in a general or special defined by constitution, charter, rule or law defined by constitution, charter, rule or lawlaw, executive order or other authorizing applicable to such governing body. applicable to such governing body.provision.<Undefined> < “Made public”, when the records of an “Made public”, when the records of an executive session have been approved by executive session have been approved by the members of the respective governmental the members of the respective governmental body attending such session for release to body attending such session for release to the public and notice of such approval has the public and notice of such approval has been entered in the records of such body. been entered in the records of such body.SECTION 19 Chapter 39: Section 23B. Open meetings Chapter 30A: Section 11A-1/2. Open of governmental bodies. meetings of governmental bodies. (a) There shall be in the department of the >attorney general a division of opengovernment under the direction of a directorof open government. The attorney generalshall designate an assistant attorney generalas the director of the open governmentdivision. The director may appoint andremove, subject to the approval of theattorney general, such expert, clerical andother assistants as the work of the divisionmay require. The division shall perform theduties imposed upon the attorney general bythe open meeting law, which may includeparticipating, appearing and intervening inany administrative and judicial proceedingspertaining to the enforcement of the openmeeting law. For the purpose of suchparticipation, appearance, intervention andtraining authorized by this chapter theattorney general may expend such funds asmay be appropriated therefor.(b) The attorney general shall create and >distribute educational materials and provide 5
    • training to public bodies in order to fosterawareness and compliance with the openmeeting law. Open meeting law trainingmay include, but shall not be limited to,instruction in:(1) the general background of the legalrequirements for the open meeting law;(2) applicability of sections 18 to 25,inclusive, to governmental bodies;(3) the role of the attorney general inenforcing the open meeting law; and(4) penalties and other consequences forfailure to comply with this chapter.(c) There shall be an open meeting law >advisory commission. The commissionshall consist of 5 members, 2 of whom shallbe the chairmen of the joint committee onstate administration and regulatoryoversight; 1 of whom shall be the presidentof the Massachusetts Municipal Associationor his designee; 1 of whom shall be thepresident of the Massachusetts NewspaperPublishers Association or his designee; and1 of whom shall be the attorney general orhis designee.The commission shall review issues relativeto the open meeting law and shall submit tothe attorney general recommendations forchanges to the regulations, trainings, andeducational initiatives relative to the openmeeting law as it deems necessary andappropriate.(d) The attorney general shall, not later than >January 31, file annually with thecommission a report providing informationon the enforcement of the open meeting lawduring the preceding calendar year. The 6
    • report shall include, but not be limited to:(1) the number of open meeting lawcomplaints received by the attorney general;(2) the number of hearings convened as theresult of open meeting law complaints bythe attorney general;(3) a summary of the determinations ofviolations made by the attorney general;(4) a summary of the orders issued as theresult of the determination of an openmeeting law violation by the attorneygeneral;(5) an accounting of the fines obtained bythe attorney general as the result of openmeeting law enforcement actions;(6) the number of actions filed in superiorcourt seeking relief from an order of theattorney general; and(7) any additional information relevant tothe administration and enforcement of theopen meeting law that the attorney generaldeems appropriate.SECTION 20(a) Except as provided in section 21, all N All meetings of a governmental body shall All meetings of a governmental body shallmeetings of a public body shall be open to be open to the public and any person shall be open to the public and any person shallthe public. be permitted to attend any meeting except be permitted to attend any meeting except as otherwise provided by this section. as otherwise provided by this section. No quorum of a governmental body shall No quorum of a governmental body shall meet in private for the purpose of deciding meet in private for the purpose of deciding on or deliberating toward a decision on any on or deliberating toward a decision on any matter except as provided by this section. matter except as provided by this section.(b) Except in an emergency, in addition to N Except in an emergency, a notice of every Except in an emergency, a notice of everyany notice otherwise required by law, a meeting of any governmental body shall be meeting of a governmental body subject topublic body shall post notice of every filed with the clerk of the city or town in this section shall be filed with the secretarymeeting at least 48 hours prior to such which the body acts, and the notice or a of state, and a copy thereof posted in themeeting, excluding Saturdays, Sundays and copy thereof shall, at least forty-eight hours, office of the executive office forlegal holidays. In an emergency, a public including Saturdays but not Sundays and administration and finance at least forty- 7
    • body shall post notice as soon as reasonably legal holidays, prior to such meeting, be eight hours, including Saturdays but notpossible prior to such meeting. Notice shall publicly posted in the office of such clerk or Sundays and legal holidays, prior to thebe printed in a legible, easily understandable on the principal official bulletin board of time of such meeting. The notice shall beformat and shall contain the date, time and such city or town. printed in easily readable type and shallplace of such meeting and a listing of topics include the date, time and place of suchthat the chair reasonably anticipates will be meeting. Such filing and posting shall bediscussed at the meeting. the responsibility of the officer calling such meetings.(c) For meetings of a local public body, N The secretary of a regional school districtnotice shall be filed with the municipal clerk committee shall be considered to be its clerkand posted in a manner conspicuously and he shall file the notice of meetings ofvisible to the public at all hours in or on the the committee with the clerk of each city ormunicipal building in which the clerk’s town within such district and each suchoffice is located. clerk shall post the notice in his office or onFor meetings of a regional or district public the principal official bulletin board of thebody, notice shall be filed and posted in city or town and such secretary shall posteach city or town within the region or such notice in his office or on the principaldistrict in the manner prescribed for local official bulletin board of the district. If thepublic bodies. For meetings of a regional meeting shall be of a regional or districtschool district, the secretary of the regional governmental body, the officer calling theschool district committee shall be meeting shall file the notice thereof with theconsidered to be its clerk and shall file clerk of each city and town within suchnotice with the clerk of each city or town region or district, and each such clerk shallwithin such district and shall post the notice post the notice in his office or on thein the manner prescribed for local public principal official bulletin board of the citybodies. For meetings of a county public or town. The notice shall be printed inbody, notice shall be filed in the office of the easily readable type and shall contain thecounty commissioners and a copy of the date, time and place of such meeting. Suchnotice shall be publicly posted in a manner filing and posting shall be the responsibilityconspicuously visible to the public at all of the officer calling such meeting.hours in such place or places as the countycommissioners shall designate for thepurpose.For meetings of a state public body, noticeshall be filed with the attorney general byposting on a website in accordance withprocedures established for this purpose. 8
    • The attorney general shall have the authorityto prescribe or approve alternative methodsof notice where the attorney generaldetermines such alternative will afford moreeffective notice to the public.(d) The attorney general may by regulation >or letter ruling, authorize remoteparticipation by members of a public bodynot present at the meeting location;provided, however, that the absent membersand all persons present at the meetinglocation are clearly audible to each other;and provided, further, that a quorum of thebody, including the chair, are present at themeeting location. Such authorized membersmay vote and shall not be deemed absent forthe purposes of section 23D of chapter 39.(e) After notifying the chair of the public N A meeting of a governmental body may be A meeting of a governmental body may bebody, any person may make a video or audio recorded by any person in attendance by recorded by any person in attendance byrecording of an open session of a meeting of means of a tape recorder or any other means means of a tape recorder or any other meansa public body, or may transmit the meeting of sonic reproduction or by means of of sonic reproduction except when athrough any medium, subject to reasonable videotape equipment fixed in one or more meeting is held in executive session;requirements of the chair as to the number, designated locations determined by the provided, that in such recording there is noplacement and operation of equipment used governmental body except when a meeting active interference with the conduct of theso as not to interfere with the conduct of the is held in executive session; provided, that meeting.meeting. At the beginning of the meeting in such recording there is no activethe chair shall inform other attendees of any interference with the conduct of thesuch recordings. meeting.(f) No person shall address a meeting of a N G.L. c. 39,§ 23(C): G.L. c. 39,§ 23(C):public body without permission of the chair,and all persons shall, at the request of the Section 23C. No person shall address a Section 23C. No person shall address achair, be silent. No person shall disrupt the public meeting of a governmental body public meeting of a governmental bodyproceedings of a meeting of a public body. without permission of the presiding officer without permission of the presiding officerIf, after clear warning from the chair, a at such meeting, and all persons shall, at the at such meeting, and all persons shall, at theperson continues to disrupt the proceedings, request of such presiding officer, be silent. request of such presiding officer, be silent.the chair may order the person to withdraw If, after warning from the presiding officer, If, after warning from the presiding officer,from the meeting and if the person does not a person persists in disorderly behavior, said a person persists in disorderly behavior, said 9
    • withdraw, the chair may authorize a officer may order him to withdraw from the officer may order him to withdraw from theconstable or other officer to remove the meeting, and, if he does not withdraw, may meeting, and, if he does not withdraw, mayperson from the meeting. order a constable or any other person to order a constable or any other person to remove him and confine him in some remove him and confine him in some convenient place until the meeting is convenient place until the meeting is adjourned. adjourned.(g) Within 2 weeks of qualification for N Upon qualification for office following an Upon qualification for office following anoffice, all persons serving on a public body appointment or election to a governmental appointment or election to a governmentalshall certify, on a form prescribed by the body, as defined in this section, the member body, a member shall be furnished by theattorney general, the receipt of a copy of the shall be furnished by the city or town clerk state secretary with a copy of this section.open meeting law, regulations promulgated with a copy of this section. Each such Each member shall sign a writtenpursuant to section 25 and a copy of the member shall sign a written acknowledgment that he has been providededucational materials prepared by the cknowledgement that he has been provided with such a copy.attorney general explaining the open with such a copy.meeting law and its application pursuant tosection 19. Unless otherwise directed orapproved by the attorney general, theappointing authority, city or town clerk orthe executive director or other appropriateadministrator of a state or regional body, ortheir designees, shall obtain suchcertification from each person upon enteringservice and shall retain it subject to theapplicable records retention schedule wherethe body maintains its official records. Thecertification shall be evidence that themember of a public body has read andunderstands the requirements of the openmeeting law and the consequences ofviolating it.SECTION 21 (a) A public body may meet in executive = Nothing except the limitation contained in Nothing except the limitations contained insession only for the following purposes: this section shall be construed to prevent the this section shall be construed to prevent the(1) To discuss the reputation, character, governmental body from holding an governmental body from holding anphysical condition or mental health, rather executive session after an open meeting has executive session after an open meeting hasthan professional competence, of an been convened and a recorded vote has been been convened and after a recorded vote hasindividual, or to discuss the discipline or taken to hold an executive session. been taken to hold an executive session. 10
    • dismissal of, or complaints or charges Executive sessions may be held only for the Executive sessions may be held only for thebrought against, a public officer, employee, following purposes: following purposes:staff member or individual. The individualto be discussed in such executive session (1) To discuss the reputation, character, (1) To discuss the reputation, character,shall be notified in writing by the public physical condition or mental health rather physical condition or mental health ratherbody at least 48 hours prior to the proposed than the professional competence of an than the professional competence of anexecutive session; provided, however, that individual, provided that the individual individual, provided that the individual tonotification may be waived upon written involved in such executive session has been be discussed in such executive session hasagreement of the parties. A public body shall notified in writing by the governmental been notified in writing by thehold an open session if the individual body, at least forty-eight hours prior to the governmental body, at least forty-eightinvolved requests that the session be open. If proposed executive session. Notification hours prior to the proposed executivean executive session is held, such individual may be waived upon agreement of the session. Notification may be waived uponshall have the following rights: parties. A governmental body shall hold an agreement of the parties. A governmentali. to be present at such executive session open meeting if the individual involved body shall hold an open meeting if theduring deliberations which involve that requests that the meeting be open. If an individual involved requests that theindividual; executive session is held, such individual meeting be open. If an executive session is ii. to have counsel or a representative of shall have the following rights: held, such individual shall have thehis own choosing present and attending for following rights:the purpose of advising the individual and (a) to be present at such executive sessionnot for the purpose of active participation in (a) to be present at such executive session during discussions or considerations whichthe executive session; involve that individual. during discussions or considerations which iii. to speak on his own behalf; and involve that individual. (b) to have counsel or a representative of his iv. to cause an independent record to be (b) to have counsel or a representative of his own choosing present and attending for thecreated of said executive session by audio- own choosing present and attending for the purpose of advising said individual and notrecording or transcription, at the individual’s purpose of advising said individual and not for the purpose of active participation inexpense. said executive session. for the purpose of active participation inThe rights of an individual set forth in this (c) to speak in his own behalf. said executive session.paragraph are in addition to the rights that he (c) to speak in his own behalf.may have from any other source, including,but not limited to, rights under any laws or (2) To consider the discipline or dismissal (2) To consider the discipline or dismissalcollective bargaining agreements and the of, or to hear complaints or charges brought of, or to hear complaints or charges broughtexercise or non-exercise of the individual against, a public officer, employee, staff against, a public officer, employee, staffrights under this section shall not be member, or individual, provided that the member, or individual, provided that theconstrued as a waiver of any rights of the individual involved in such executive individual involved in such executiveindividual. session pursuant to this clause has been session has been notified in writing by the notified in writing by the governmental governmental body at least forty-eight hours body at least forty-eight hours prior to the prior to the proposed executive session. 11
    • proposed executive session. Notification Notification may be waived upon agreement may be waived upon agreement of the of the parties. A governmental body shall parties. A governmental body shall hold an hold an open meeting if the individual open meeting if the individual involved involved requests that the meeting be open. requests that the meeting be open. If an If an executive session is held, such executive session is held, such individual individual shall have the following rights: shall have the following rights: (a) to be present at such executive session (a) to be present at such executive session during discussions or considerations which during discussions or considerations which involve that individual. involve that individual. (b) to have counsel or a representative of his (b) to have counsel or a representative of his own choosing present and attending for the own choosing present and attending for the purpose of advising said individual and not purpose of advising said individual and not for the purpose of active participation in for the purpose of active participation. said executive session. (c) to speak in his own behalf. (c) to speak in his own behalf.2. To conduct strategy sessions in = (3) [To discuss strategy with respect topreparation for negotiations with nonunion collective bargaining or litigation if an openpersonnel or to conduct collective meeting may have a detrimental effect onbargaining sessions or contract negotiations the bargaining or litigating position of thewith nonunion personnel; governmental body], to conduct strategy sessions in preparation for negotiations with nonunion personnel, to conduct collective bargaining sessions or contract negotiations with nonunion personnel.3. To discuss strategy with respect to = (3) To discuss strategy with respect to (3) To discuss strategy with respect tocollective bargaining or litigation if an open collective bargaining or litigation if an collective bargaining or litigation if an openmeeting may have a detrimental effect on open meeting may have a detrimental meeting may have a detrimental effect onthe bargaining or litigating position of the effect on the bargaining or litigating the bargaining or litigating position of thepublic body and the chair so declares; position of the governmental body, [to governmental body, and to conduct conduct strategy sessions in preparation for collective bargaining sessions. negotiations with nonunion personnel, to conduct collective bargaining sessions or contract negotiations with nonunion personnel].4. To discuss the deployment of security = (4) To discuss the deployment of security (4) To discuss the deployment of securitypersonnel or devices, or strategies with personnel or devices. personnel or devices. 12
    • respect thereto;5. To investigate charges of criminal = (5) To investigate charges of criminal (5) To investigate charges of criminalmisconduct or to consider the filing of misconduct or to discuss the filing of misconduct or to discuss the filing ofcriminal complaints; criminal complaints. criminal complaints.6. To consider the purchase, exchange, = (6) To consider the purchase, exchange, (6) To consider the purchase, exchange,lease or value of real property if the chair lease or value of real property, if such lease or value of real property, if suchdeclares that an open meeting may have a discussions may have a detrimental effect discussions may have a detrimental effectdetrimental effect on the negotiating on the negotiating position of the on the negotiating position of theposition of the public body; governmental body and a person, firm or governmental body and a person, firm or corporation. corporation.7. To comply with, or act under the = (7) To comply with the provisions of any (7) To comply with the provisions of anyauthority of, any general or special law or general or special law or federal grant-in- general or special law or federal grant-in-federal grant-in-aid requirements; aid requirements. aid requirements.8. To consider or interview applicants for = (8) To consider and interview applicantsemployment or appointment by a for employment by a preliminary screeningpreliminary screening committee if the chair committee or a subcommittee appointed bydeclares that an open meeting will have a a governmental body if an open meetingdetrimental effect in obtaining qualified will have a detrimental effect in obtainingapplicants; provided, however, that this qualified applicants; provided, however,clause shall not apply to any meeting, that this clause shall not apply to anyincluding meetings of a preliminary meeting, including meetings of ascreening committee, to consider and preliminary screening committee or ainterview applicants who have passed a prior subcommittee appointed by a governmentalpreliminary screening; body, to consider and interview applicants who have passed a prior preliminary screening.9. To meet or confer with a mediator, as = (9) To meet or confer with a mediator, asdefined in section 23C of chapter 233, with defined in section twenty-three C of chapterrespect to any litigation or decision on any two hundred and thirty-three, with respectpublic business within its jurisdiction to any litigation or decision on any publicinvolving another party, group or entity, business within its jurisdiction involvingprovided that: another party, group or body, provided that:(i) any decision to participate in mediation (a) any decision to participate in mediationshall be made in an open session and the shall be made in open meeting session andparties, issues involved and purpose of the the parties, issues involved and purpose ofmediation shall be disclosed; and the mediation shall be disclosed; and (b) no 13
    • (ii) no action shall be taken by any public action shall be taken by any governmentalbody with respect to those issues which are body with respect to those issues which arethe subject of the mediation without the subject of the mediation withoutdeliberation and approval for such action at deliberation and approval for such action atan open session; or an open meeting after such notice as may be required in this section.10. to discuss trade secrets or confidential, = (10) To discuss trade secrets or confidential,competitively-sensitive or other proprietary competitively-sensitive or other proprietaryinformation provided in the course of information provided in the course ofactivities conducted by a governmental body activities conducted by a governmentalas an energy supplier under a license granted body as an energy supplier under a licenseby the department of public utilities pursuant granted by the department of public utilitiesto section 1F of chapter 164, in the course of pursuant to section 1F of chapter 164, in theactivities conducted as a municipal course of activities conducted as aaggregator under section 134 of said chapter municipal aggregator under section 134 of164 or in the course of activities conducted said chapter 164 or in the course ofby a cooperative consisting of governmental activities conducted by a cooperativeentities organized pursuant to section 136 of consisting of governmental entitiessaid chapter 164, when such governmental organized pursuant to section 136 of saidbody, municipal aggregator or cooperative chapter 164, when such governmental body,determines that such disclosure will municipal aggregator or cooperativeadversely affect its ability to conduct determines that such disclosure willbusiness in relation to other entities making, adversely affect its ability to conductselling or distributing electric power and business in relation to other entities making,energy. selling or distributing electric power and energy.(b) A public body may meet in closed N No executive session shall be held until the No executive session shall be held until thesession for 1 or more of the purposes governmental body has first convened in an governmental body has first convened in anenumerated in subsection (a) provided that: open session for which notice has been open session for which notice has been1. the body has first convened in an open given, a majority of the members have given, a majority of the members of thesession pursuant to section 21; voted to go into executive session and the governmental body have voted to go into2. a majority of members of the body have vote of each member is recorded on a roll executive session and the vote of eachvoted to go into executive session and the call vote and entered into the minutes, the member is recorded on a roll call vote andvote of each member is recorded by roll call presiding officer has cited the purpose for entered into the minutes, the presidingand entered into the minutes; an executive session, and the presiding officer has cited the purpose for an3. before the executive session, the chair officer has stated before the executive executive session, and the presiding officershall state the purpose for the executive session if the governmental body will has stated before the executive session if the 14
    • session, stating all subjects that may be reconvene after the executive session. governmental body will reconvene after therevealed without compromising the purpose executive session.for which the executive session was called; The rights of an individual set forth in this4. the chair shall publicly announce whether section relative to his appearance before a The rights of an individual set forth in thisthe open session will reconvene at the meeting in an executive or open session, are section relative to his appearance before aconclusion of the executive session; and in addition to the rights that an individual meeting in an executive or open session, are5. accurate records of the executive session may have from any other source, including, in addition to the rights that an individualshall be maintained pursuant to section 23. but not limited to, rights under any laws or may have from any other source, including, collective bargaining agreements, and the but not limited to rights under any laws or exercise or nonexercise of the individual collective bargaining agreements, and the rights under this section shall not be exercise or nonexercise of the individual construed as a waiver of any rights of the rights under this section shall not be individual. construed as a waiver of any rights of the individual.SECTION 22 (a) A public body shall create and maintain N A governmental body shall maintain A governmental body shall maintainaccurate minutes of all meetings, including accurate records of its meetings, setting accurate records of its meetings, settingexecutive sessions, setting forth the date, forth the date, time, place, members present forth the date, time, place, members presenttime and place, the members present or or absent and action taken at each meeting, or absent and action taken at each meeting,absent, a summary of the discussions on including executive sessions. including executive sessions.each subject, a list of documents and otherexhibits used at the meeting, the decisionsmade and the actions taken at each meeting,including the record of all votes.(b) No vote taken at an open session shall = All votes taken in executive sessions shall All votes taken in executive sessions shallbe by secret ballot. Any vote taken at an be recorded roll call votes and shall become be recorded roll call votes and shall becomeexecutive session shall be recorded by roll a part of the record of said executive a part of the record of said executivecall and entered into the minutes. sessions. No votes taken in open session sessions. No votes taken in open session shall be by secret ballot. shall be by secret ballot.(c) Minutes of all open sessions shall be Ncreated and approved in a timely manner.The minutes of an open session, if they existand whether approved or in draft form, shallbe made available upon request by anyperson within 10 days.(d) Documents and other exhibits, such as N 15
    • photographs, recordings or maps, used bythe body at an open or executive sessionshall, along with the minutes, be part of theofficial record of the session.(e) The minutes of any open session, the N The records of each meeting shall become a The records of each meeting shall become anotes, recordings or other materials used in public record and be available to the public; public record and be available to the public;the preparation of such minutes and all provided, however, that the records of any provided, however, that the records of anydocuments and exhibits used at the session, executive session may remain secret as long executive session may remain secret as longshall be public records in their entirety and as publication may defeat the lawful as publication may defeat the lawfulnot exempt from disclosure pursuant to any purposes of the executive session, but no purposes of the executive session, but noof the exemptions under clause Twenty- longer. longer.sixth of section 7 of chapter 4.Notwithstanding this paragraph, thefollowing materials shall be exempt fromdisclosure to the public as personnelinformation: (1) materials used in aperformance evaluation of an individualbearing on his professional competence,provided they were not created by themembers of the body for the purposes of theevaluation; and (2) materials used indeliberations about employment orappointment of individuals, includingapplications and supporting materials;provided, however, that any resumesubmitted by an applicant shall not beexempt.(f) The minutes of any executive session, >the notes, recordings or other materials usedin the preparation of such minutes and alldocuments and exhibits used at the session,may be withheld from disclosure to thepublic in their entirety under subclause (a)of clause Twenty-sixth of section 7 ofchapter 4, as long as publication may defeatthe lawful purposes of the executive session,but no longer; provided, however, that the 16
    • executive session was held in compliancewith section 21.When the purpose for which a validexecutive session was held has been served,the minutes, preparatory materials anddocuments and exhibits of the session shallbe disclosed unless the attorney-clientprivilege or 1 or more of the exemptionsunder said clause Twenty-sixth of saidsection 7 of said chapter 4 apply to withholdthese records, or any portion thereof, fromdisclosure.For purposes of this subsection, if anexecutive session is held pursuant to clause(2) or (3) of subsections (a) of section 21,then the minutes, preparatory materials anddocuments and exhibits used at the sessionmay be withheld from disclosure to thepublic in their entirety, unless and until suchtime as a litigating, negotiating orbargaining position is no longer jeopardizedby such disclosure, at which time they shallbe disclosed unless the attorney-clientprivilege or 1 or more of the exemptionsunder said clause Twenty-sixth of saidsection 7 of said chapter 4 apply to withholdthese records, or any portion thereof, fromdisclosure.(g)(1) The public body, or its chair or >designee, shall, at reasonable intervals,review the minutes of executive sessions todetermine if the provisions of this subsectionwarrant continued non-disclosure. Suchdetermination shall be announced at thebody’s next meeting and suchannouncement shall be included in theminutes of that meeting. 17
    • (2) Upon request by any person to inspector copy the minutes of an executive sessionor any portion thereof, the body shallrespond to the request within 10 daysfollowing receipt and shall release any suchminutes not covered by an exemption undersubsection (f); provided, however, that if thebody has not performed a review pursuant toparagraph (1), the public body shall performthe review and release the non-exemptminutes, or any portion thereof, not laterthan the body’s next meeting or 30 days,whichever first occurs. A public body shallnot assess a fee for the time spent in itsreview.SECTION 23(a) Subject to appropriation, the attorney N The district attorney of the county in which The attorney general shall enforce thegeneral shall interpret and enforce the open the violation occurred shall enforce the provisions of this section.meeting law. provisions of this section.(b) At least 30 days prior to the filing of a >complaint with the attorney general, thecomplainant shall file a written complaintwith the public body, setting forth thecircumstances which constitute the allegedviolation and giving the body an opportunityto remedy the alleged violation; provided,however, that such complaint shall be filedwithin 30 days of the date of the allegedviolation. The public body shall, within 14business days of receipt of a complaint, senda copy of the complaint to the attorneygeneral and notify the attorney general ofany remedial action taken. Any remedialaction taken by the public body in responseto a complaint under this subsection shallnot be admissible as evidence against thepublic body that a violation occurred in any 18
    • later administrative or judicial proceedingrelating to such alleged violation. Theattorney general may authorize an extensionof time to the public body for the purpose oftaking remedial action upon the writtenrequest of the public body and a showing ofgood cause to grant the extension.(c) Upon the receipt of a complaint by any >person, the attorney general shall determine,in a timely manner, whether there has been aviolation of the open meeting law. Theattorney general may, and before imposingany civil penalty on a public body shall,hold a hearing on any such complaint.Following a determination that a violationhas occurred, the attorney general shalldetermine whether the public body, 1 ormore of the members, or both, areresponsible and whether the violation wasintentional or unintentional. Upon thefinding of a violation, the attorney generalmay issue an order to:(1) compel immediate and futurecompliance with the open meeting law;(2) compel attendance at a training sessionauthorized by the attorney general;(3) nullify in whole or in part any actiontaken at the meeting;(4) impose a civil penalty upon the publicbody of not more than $1,000 for eachintentional violation;(5) reinstate an employee without loss ofcompensation, seniority, tenure or otherbenefits;(6) compel that minutes, records or othermaterials be made public; or(7) prescribe other appropriate action. 19
    • (d) A public body or any member of a body Naggrieved by any order issued pursuant tothis section may, notwithstanding anygeneral or special law to the contrary, obtainjudicial review of the order only through anaction in superior court seeking relief in thenature of certiorari; provided, however, thatnotwithstanding section 4 of chapter 249,any such action shall be commenced insuperior court within 21 days of receipt ofthe order. Any order issued under thissection shall be stayed pending judicialreview; provided, however, that if the ordernullifies an action of the public body, thebody shall not implement such actionpending judicial review.(e) If any public body or member thereof >shall fail to comply with the requirementsset forth in any order issued by the attorneygeneral, or shall fail to pay any civil penaltyimposed within 21 days of the date ofissuance of such order or within 30 daysfollowing the decision of the superior courtif judicial review of such order has beentimely sought, the attorney general may filean action to compel compliance. Suchaction shall be filed in Suffolk superior courtwith respect to state public bodies and, withrespect to all other public bodies, in thesuperior court in any county in which thepublic body acts or meets. If such body ormember has not timely sought judicialreview of the order, such order shall not beopen to review in an action to compelcompliance.(f) As an alternative to the procedure in > Upon proof of failure by any governmental Upon proof of failure by any governmentalsubsection (b), the attorney general or 3 or body or by any member or officer thereof to body or by any member or officer thereof to 20
    • more registered voters may initiate a civil carry out any of the provisions for public carry out any of the provisions of thisaction to enforce the open meeting law. notice or meetings, for holding open section, any justice of the supreme judicialAny action under this subsection shall be meetings, or for maintaining public records court or any justice of the superior courtfiled in Suffolk superior court with respect thereof, any justice of the supreme judicial sitting in the county in which theto state public bodies and, with respect to all court or the superior court sitting within and governmental body customarily meets or inother public bodies, in the superior court in for the county in which such governmental the absence of such sitting of court then anyany county in which the public body acts or body acts shall issue an appropriate order justice of the superior court sitting inmeets. requiring such governmental body or Suffolk county shall issue an appropriateIn any action filed pursuant to this member or officer thereof to carry out such order requiring such governmental body orsubsection, in addition to all other remedies provisions at future meetings. Such order member or officer thereof to carry out suchavailable to the superior court, in law or in may be sought by complaint of three or provision at future meetings. Any suchequity, the court shall have all of the more registered voters, by the attorney order may be sought by complaint of threeremedies set forth in subsection (b). general, or by the district attorney of the or more registered voters, by the attorneyIn any action filed under this subsection, the county in which the city or town is located. general, or by the district attorney for theorder of notice on the complaint shall be The order of notice on the complaint shall district in which the governmental body isreturnable not later than 10 days after the be returnable no later than ten days after the located. The order of notice on thefiling and the complaint shall be heard and filing thereof and the complaint shall be complaint shall be heard no later than tendetermined on the return day or on such day heard and determined on the return day or days after the filing thereof or on such dayas the court shall fix, having regard to the on such day thereafter as the court shall fix, thereafter as the court shall fix, havingspeediest possible determination of the having regard to the speediest possible regard to the speediest possiblecause consistent with the rights of the determination of the cause consistent with determination of the cause consistent withparties; provided, however, that orders may the rights of the parties; provided, however, the rights of the parties; provided, however,be issued at any time on or after the filing of that orders with respect to any of the that orders with respect to any of thethe complaint without notice when such matters referred to in this section may be matters referred to in this section may beorder is necessary to fulfill the purposes of issued at any time on or after the filing of issued at any time on or after the filing ofthe open meeting law. In the hearing of any the complaint without notice when such the complaint without notice when suchaction under this subsection, the burden order is necessary to fulfill the purposes of order is necessary to fulfill the purposes ofshall be on the respondent to show by a this section. In the hearing of such this section. In the hearing of suchpreponderance of the evidence that the complaints the burden shall be on the complaint the burden shall be on theaction complained of in such complaint was respondent to show by a preponderance of respondent to show by a preponderance ofin accordance with and authorized by the the evidence that the action complained of the evidence that the actions complained ofopen meeting law; provided, however, that in such complaint was in accordance with in such complaint were in accordance withno civil penalty may be imposed on an and authorized by section eleven A 1/2 of and authorized by this section, by sectionindividual absent proof that the action chapter thirty A, by section nine G of nine G of chapter thirty-four or by sectioncomplained of violated the open meeting chapter thirty-four or by this section. All twenty-three B of chapter thirty-nine. Alllaw. processes may be issued from the clerk’s processes may be issued from the clerks office in the county in which the action is office in the county in which the action is 21
    • brought and, except as aforesaid, shall be brought and, except as aforesaid, shall be returnable as the court orders. returnable as the court orders. Such order may invalidate any action taken Such order may invalidate any action taken at any meeting at which any provision of at any meeting at which any provision of this section has been violated, provided that this section has been violated, provided that such complaint is filed within twenty-one such complaint is filed within twenty-one days of the date when such action is made days of the date when such action is made public. public. Any such order may also, when appropriate, Any such order may also, when appropriate, require the records of any such meeting to require the records of any such meeting to be made public, unless it shall have been be made public, unless it shall have been determined by such justice that the determined by such justice that the maintenance of secrecy with respect to such maintenance of secrecy with respect to such records is authorized. The remedy created records is authorized. The remedy created hereby is not exclusive, but shall be in hereby is not exclusive, but shall be in addition to every other available remedy. addition to every other available remedy. Such order may also include reinstatement without loss of compensation, seniority, tenure or other benefits for any employee discharged at a meeting or hearing held in violation of the provisions of this section. Such order may also include a civil fine against the governmental body in an amount no greater than one thousand dollars for each meeting held in violation of this section.(g) It shall be a defense to the imposition of >a penalty that the public body, after fulldisclosure, acted in good faith compliancewith the advice of the public body’s legalcounsel.(h) Payment of civil penalties under this > 22
    • section paid to or received by the attorneygeneral shall be paid into the general fund ofthe commonwealth.SECTION 24 (a) Whenever the attorney general has >reasonable cause to believe that a person,including any public body and any otherstate, regional, county, municipal or othergovernmental official or entity, has violatedthe open meeting law, the attorney generalmay conduct an investigation to ascertainwhether in fact such person has violated theopen meeting law. Upon notification of aninvestigation, any person, public body orany other state, regional, county, municipalor other governmental official or entity whois the subject of an investigation, shall makeall information necessary to conduct suchinvestigation available to the attorneygeneral. In the event that the person, publicbody or any other state, regional, county,municipal or other governmental official orentity being investigated does notvoluntarily provide relevant information tothe attorney general within 30 days ofreceiving notice of the investigation, theattorney general may: (1) take testimonyunder oath concerning such alleged violationof the open meeting law; (2) examine orcause to be examined any documentarymaterial of whatever nature relevant to suchalleged violation of the open meeting law;and (3) require attendance during suchexamination of documentary material of anyperson having knowledge of thedocumentary material and take testimonyunder oath or acknowledgment in respect of 23
    • any such documentary material. Suchtestimony and examination shall take placein the county where such person resides orhas a place of business or, if the partiesconsent or such person is a nonresident orhas no place of business within thecommonwealth, in Suffolk county.(b) Notice of the time, place and cause of >such taking of testimony, examination orattendance shall be given by the attorneygeneral at least 10 days prior to the date ofsuch taking of testimony or examination.(c) Service of any such notice may be made >by: (1) delivering a duly-executed copy tothe person to be served or to a partner or toany officer or agent authorized byappointment or by law to receive service ofprocess on behalf of such person; (2)delivering a duly-executed copy to theprincipal place of business in thecommonwealth of the person to be served;or (3) mailing by registered or certified maila duly-executed copy addressed to theperson to be served at the principal place ofbusiness in the commonwealth or, if saidperson has no place of business in thecommonwealth, to his principal office orplace of business.(d) Each such notice shall: (1) state the time >and place for the taking of testimony or theexamination and the name and address ofeach person to be examined, if known and, ifthe name is not known, a general descriptionsufficient to identify him or the particularclass or group to which he belongs; (2) statethe statute and section thereof, the allegedviolation of which is under investigation and 24
    • the general subject matter of theinvestigation; (3) describe the class orclasses of documentary material to beproduced thereunder with reasonablespecificity, so as fairly to indicate thematerial demanded; (4) prescribe a returndate within which the documentary materialis to be produced; and (5) identify themembers of the attorney general’s staff towhom such documentary material is to bemade available for inspection and copying.(e) No such notice shall contain any >requirement which would be unreasonableor improper if contained in a subpoenaduces tecum issued by a court of thecommonwealth or require the disclosure ofany documentary material which would beprivileged, or which for any other reasonwould not be required by a subpoena ducestecum issued by a court of thecommonwealth.(f) Any documentary material or other >information produced by any personpursuant to this section shall not, unlessotherwise ordered by a court of thecommonwealth for good cause shown, bedisclosed to any person other than theauthorized agent or representative of theattorney general, unless with the consent ofthe person producing the same; provided,however, that such material or informationmay be disclosed by the attorney general incourt pleadings or other papers filed incourt.(g) At any time prior to the date specified in >the notice, or within 21 days after the noticehas been served, whichever period is shorter, 25
    • the court may, upon motion for good causeshown, extend such reporting date or modifyor set aside such demand or grant aprotective order in accordance with thestandards set forth in Rule 26(c) of theMassachusetts Rules of Civil Procedure. Themotion may be filed in the superior court ofthe county in which the person servedresides or has his usual place of business orin Suffolk county. This section shall not beapplicable to any criminal proceeding norshall information obtained under theauthority of this section be admissible inevidence in any criminal prosecution forsubstantially identical transactions.Section 25 (a) The attorney general shall have the >authority to promulgate rules andregulations to carry out enforcement of theopen meeting law.(b) The attorney general shall have theauthority to interpret the open meeting lawand to issue written letter rulings or advisoryopinions according to rules establishedunder this section.SECTION 19. Sections 9F and 9G >of chapter 34 of the General Lawsare hereby repealed.SECTION 20. Sections 23A to23C, inclusive, of chapter 39 of theGeneral Laws are hereby repealed.rev 6/14/10 26
    • EnforcementWithin 30 days of the alleged violation, the complainant must first file complaint with thepublic body.Public body has 14 days to send copy to AG and notify of any remedial action taken.After 30 days from the filing of the complaint with the public body the complainant mayfile complaint with the AG.Upon receipt of complaint, AG shall determine if violation “in timely manner.”AG may conduct investigation to determine if a violation has occurred.Upon notification, public body shall provide all info requested by AG within 30 daysAG may conduct hearing.AG may take testimony under oath, examine documentary material, and may requireattendance of person(s) with knowledge of materials with 10 day notice according torules same as/similar to subpoena under Mass.R.Civ.P.Materials so obtained not public records “shall not be disclosed to any person”Following determination, AG shall determine if public body, 1 or more of members, orboth, are responsible and whether intentional or unintentional.Upon finding a violation, AG may issue an order to (one or more):- Compel immediate and future compliance with the open meeting law- Compel attendance at a training session authorized by the attorney general- Nullify in whole or in part any action taken at the meeting- Impose a civil penalty upon the public body of not more than $1000 for each intentional violation (paid to the General Fund)- Reinstate an employee without loss of compensation, seniority, tenure, or other benefits- Compel that minutes, records or other materials be made public- Prescribe other appropriate actionIf aggrieved by order, public body or member may obtain judicial review only bycertiorari in superior court within 21 days of receiving order.If public body or member fails within 21 days to comply with requirements of AG orderor pay civil penalty, or within 30 days of court decision if judicial review timely sought,then AG can commence action to compel.Alternative to complaint process, AG or 3 (or more) registered voters may initiate civilaction in superior court to compel compliance.
    • Intersection with Public Records Law Minutes defined further Documents and exhibits used at meetings included as part of the “official record” Public records status of open meeting minutes, documents, and other defined materials fully explained (“shall be public records in their entirety and not exempt from disclosure”) Public records status of certain materials specifically used in performance evaluations or deliberations concerning employment or appointment exempt from disclosure under Public Records Law (PRL) Time frames for approval of open meeting minutes and disclosure in response to request Public records status and timing of executive session minutes, documents, and other defined materials fully explained Public records status of certain materials specifically used in executive sessions entered into under Reasons 2 or 3 = exempt from disclosure if one or more of exemptions under Public Records Law (PRL) and/or attorney/client privilege continues to keep from disclosure Detailed approval process and time frames for approval of executive session minutes and disclosure in response to request New OML Old OMLSome teeth No teethOne statute for all levels of government Three separate statutes: state, county, localInterpretation and enforcement consolidated Interpretation and enforcement distributed among the District AttorneysConsistency in interpretation and enforcement Divergent viewpoints in interpretation and enforcementAdministrative enforcement options available Judicial enforcement onlyNotice provisions made more contemporary Notice requirements weak, ineffectiveTraining and education a core ingredient Training minimum: delivery of copy of OMLClearer interface with the Public Records Law OML and PRL non-congruentRemedies and appellate review more robust Remedies inadequateCompatible with contemporary technologies Written before modern communication options 1-22-10
    • Interim State Public Body Notice Posting RequirementsUnder the Open Meeting Law set to take effect July 1, 2010, state public bodies arerequired, except in emergencies, to a post meeting notices at least 48 hours in advance ofa meeting, not including Saturdays, Sundays or legal holidays. The notice must includethe date, time, and location of the meeting, as well as a listing of topics that the chairreasonably anticipates will be discussed. The new law requires that for meetings of astate public body, notice shall be posted on a website in accordance with proceduresestablished for this purpose. The new law can be found at G. L. c. 30A § 18-25.Every state public body will be responsible for posting meeting notices on a website andinforming the Division of Open Government at the Attorney General’s Office of thelocation of the website on which the state public body will be posting its notices. TheAttorney General’s Office is working with the state Information Technology Division ofthe Executive Office of Administration and Finance to develop streamlined proceduresfor state public bodies to meet these new requirements. In the interim, state public bodiesmust continue to provide a copy of meeting notices to the Executive Office ofAdministration and Finance. State public bodies need not send a copy of meeting noticesto the Attorney General or file with the Secretary of State.For state public bodies subject to the Open Meeting Law, please send the name of thepublic body, the name and contact information for the individual responsible for postingmeeting notices, and the website location on which the public body will be posting itsmeeting notices to openmeeting@state.ma.us.Should the implementation of the new Open Meeting Law be delayed beyond July 1,2010 as is now being considered by the Legislature, then state public bodies mustcontinue to follow the procedures under the old law, G. L. c. 30A § 11A½, until the newimplementation date. Under the prior state Open Meeting Law, G. L. c. 30A § 11A½, anotice of every meeting of a governmental body was to be filed with the Secretary ofState, and a copy posted in office of the Executive Office for Administration and Financeat least 48 hours, including Saturdays but not Sundays and legal holidays, prior to thetime of such meeting.