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Boston Disability Commission Ltr to AG re: Remote Participation


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Boston Disability Commission Ltr to AG re: Remote Participation

  1. 1. City of Boston Commission for Persons with Disabilities Kristen McCosh, Commissioner Boston City Hall, Room 966 Boston, MA 02201 Phone: 617-635-2522 December 7, 2011 Commission Members: John Kelly, Chair Carl Richardson, Vice-Chair Arnold Berry, Treasurer Eileen Brewster David Estrada Suzanne Leveille Janice Ward Heather Watkins John Winske The Hon. Martha Coakley Attorney General, Massachusetts One Ashburton Place Boston, MA 02108 Dear Attorney General Coakley: The Boston Commission for Persons with Disabilities would like to follow up on our letter to you dated May 1, 2011, in which we requested that under the State's Open Meeting Law (OML) you permit remote participation, with all the rights and responsibilities of members present, for people with disabilities who would otherwise be unable to attend Commission meetings. Our request is based on Title II of the Americans with Disabilities Act, 28 CFR 36.302(a), Modifications in Policies, Practices, or Procedures. A reasonable modification to the regulations would foster participation by people with disabilities without fundamentally altering policies and procedures under the OML. Since then, we have received from your office no written or formal response. We therefore enclose the original letter. Over the summer, we learned that all remote participation had been suspended pending release of the regulations. The suspension in itself was a hardship, and prevented crucial participation by members unable to physically attend commission meetings. When 940 CMR 29 was released in September 2011, we were disappointed by two sections. First, that remote participation would be not allowed except with a physical quorum already present. 940 CMR 29.10 (4) (b). Second, that each request for remote participation would require the chair to reach determinations on a case-by-case basis 940 CMR 29.10(5) (b), and to announce publicly the justification for each participant's absence. 940 CMR 29.10 (7) (b) In the first instance, the regulations take no account of the special circumstances that often face people with disabilities. As we wrote in our letter of May 1: But disabled commission members face unique structural barriers to participation throughout the State of Massachusetts. Examples of common barriers include sidewalks uncleared of snow, broken down wheelchairs, lack of reliable or accessible transportation, and health conditions that disproportionately affect members of our community. In addition, weather and extreme outdoor temperatures in our region can at times prevent disabled people from simply going outside Our argument was that people with disabilities face structural barriers to community participation, including discriminatory barriers maintained by government entities themselves. We described the unfortunate irony of not achieving quorum at a winter commission meeting because snow-clogged sidewalks prevented members from reaching City Hall. The top item on the agenda: the continuing
  2. 2. emergency of uncleared sidewalks preventing people with disabilities (and many elderly people, also) from accessing the sidewalks of the city. Therefore, please respond in writing, explaining to us how remote participation by persons with disabilities will "defeat the central goal of the open meeting laws, namely promoting transparency with regard to deliberations and decisions on which public policy is based." 940 CMR 29.10(1) We also request that you explain how modifying policies and procedures in order to promote participation by persons with disabilities in the business of Disability Commissions would fundamentally alter the program known as the Open Meeting Law. In the second instance, we believe that 940 CMR 29.10(5) is discriminatory in its specification of permissible reasons for not physically attending a commission meeting. Each of the reasons listed -personal illness, personal disability, emergency, military service, and geographic distance -- attribute absence to individual causes alone. A central tenet of the disability rights movement is the broad recognition that there are barriers to our participation that go beyond individual experience. For example, it is not the use of a wheelchair which prevents attendance at a commission meeting, it is the failure of the sundry responsible entities to clear the sidewalks that the wheelchair user has the civil right to use. We therefore request an exemption from the following requirements: 1) that remote participants identify a specific reason for their absence, 2) that chairs get to pass judgment on whether absences are reasonable, and 3) that chairs must announce the reasons for all physical absences at the beginning of the meeting. If you would like to keep specific reasons for not physically attending a commission meeting, please consider adding an additional justification for being physically absent from a meeting. Proposed: 940 CMR 29.10 (5) (f) Discrimination Disabilities do not prevent civic participation, but discriminatory regulations do. We look forward to your written response. Thank you, John Kelly Chair Carl Richardson Vice chair CC: Amy Nable, Director, Division of Open Government, AG office Maura Healey, Assistant Attorney General, Chief Civil Rights Division, AG office Ron Marlow, Assistant Secretary for Access and Opportunity, Administration and Finance Myra Berloff, Director, Mass Office on Disability Kristen McCosh, Commissioner, Boston Commission for Persons with Disabilities ENC: Boston Disability Commission to AG Coakley on remote participation May 1 2011.doc