Boston Disability Commission Ltr to AG re: Remote Participation
City of Boston Commission for Persons with Disabilities
Kristen McCosh, Commissioner
Boston City Hall, Room 966
Boston, MA 02201
December 7, 2011
John Kelly, Chair
Carl Richardson, Vice-Chair
Arnold Berry, Treasurer
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
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.
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