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Franklin School Committee: Open Meeting Law Training - 2011

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The presentation to the Franklin School Committee on the MA Open Meeting Law. Presentation reviewed at the Dec 13, 2011 meeting.

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Franklin School Committee: Open Meeting Law Training - 2011

  1. 1. FRANKLIN SCHOOL COMMITTEEOPEN MEETING LAW WORKSHOP DECEMBER 13, 2011 Michelle Allaire McNulty, Esq. Murphy, Lamere & Murphy, P.C. 10 Forbes Rd West Braintree, MA 02185 781-848-1850
  2. 2. What Does The Law Require? All meetings of a public body must be open to the public, unless a valid reason for executive session exists.
  3. 3. What Is A Meeting? A “deliberation” by a public body with respect to any matter within the body’s jurisdiction.  Oral and written communication through any medium, including electronic mail  Between a quorum of a public body  On any public business within its jurisdiction Does not include:  Distribution of meeting agenda  Scheduling information or other procedural meeting  Distribution of reports or documents for a meeting  Provided No Opinion Is Expressed!
  4. 4. Exceptions To The OML Onsite inspection of a project or program, with no deliberation Attend conference, training program or event, with no deliberation Attend a meeting of another public body, provided they communicate only by open participation and with no deliberation Meetings of quasi-judicial boards or commissions held solely to make decisions in an adjudicatory proceeding Town Meeting
  5. 5. Notice Requirements At least 48 hours in advance, excluding Saturdays, Sundays, and legal holidays. Emergency Meetings–As soon as reasonably possible  a sudden, generally unexpected occurrence or set of circumstances demanding immediate action Filed with municipal clerk Posted so conspicuously available to public at all hours  Outside building  Website  Cable Television and Internet
  6. 6. What’s In The Notice Legible and easy to understand format Date, Time, Place List of Topics/Agenda  That, as of the time of posting, the Chair reasonably anticipates will be discussed  Is sufficiently specific to reasonably inform the public of the issues to be discussed.  Encouraged to revise notice if additional topics arise after posting but before meeting
  7. 7. Executive Session First convene in Open Session State reason for the executive session  Include all subjects that may be revealed without compromising the purpose for which the executive session was called State whether body will reconvene at end of executive session Roll call vote to enter executive session
  8. 8. Purposes for Executive Session Exception #1 To discuss reputation, character, physical condition or mental health, NOT professional competence, or To discuss complaints or charges brought against a public officer, employee, staff member or individual.  48 hours written notice, which may be waived  Individual may choose to have meeting in Open Session  Right to be present  To have counsel or representative of choosing present for advising, not active participation  To speak on own behalf  To cause independent recording to be made at own expense
  9. 9. Exception #2 To conduct strategy sessions in preparation for negotiations with non-union personnel; or To conduct collective bargaining session or contract negotiations with non-union personnel  Includes bargaining with unions and grievance hearings
  10. 10. Exception #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 public body and the chair so declares  Some meetings may require vote under Exception #2 (for actual participation in collective bargaining) and #3 (for strategy session)  Unlike Exception #2, requires Chair to make declaration at time of vote to enter into Executive Session  Ongoing litigation – Not potential litigation or meetings
  11. 11. Exceptions #4 and #5 #4 – To discuss the deployment of security personnel or devices #5 – To investigate charges of criminal misconduct or to consider the filing of criminal complaints
  12. 12. Exceptions #6 and #7 #6 – To consider the purchase, exchange, lease or value of real property if the chair declares that an open meeting may have a detrimental effect on the negotiating position of the public body #7 – To comply with, or act under the authority of, any general or special law or federal grant-in-aid requirements
  13. 13. Exception #8 Preliminary Screening Interviews  To consider or interview applicants for employment or appointment by a preliminary screening committee if the chair declares that an open meeting will have a detrimental effect in obtaining qualified applicants  Provided, will not apply to any meetings to consider and interview applicants who have passed a prior preliminary screening  Screening Committee must be less than a quorum  May contain non-members
  14. 14. Exception #9 To meet or confer with a mediator, as defined in M.G.L. c. 233, s. 23C, with respect to any litigation or decision on any public business within jurisdiction  The decision to participate in mediation must be made in open session  The parties, issues involved and purpose of mediation must be disclosed  No action shall be taken by the public body with respect to those issues that are subject of mediation without delberation and approval of such action in opens session
  15. 15. Exception #10 Municipal Energy Provider To discuss trade secrets or confidential, competitively-sensitive or other proprietary information, provided:  Acting as an energy supplier under c. 164, s. 1F  Acting as a municipal aggregator under c. 164, s. 134  Activities conducted by a cooperative of governmental bodies under c. 164, s. 134  Determination that disclosure will adversely affect ability to conduct business in relation to other entities making, selling or distributing electric power or energy
  16. 16. Remote Participation CEO must authorize  Majority vote of Town Council  Applies to all subsequent meetings of all local public bodies within municipality  Also determines amount and source of payment for any costs associated with remote participation Adoption may be revoked
  17. 17. Minimum Requirements for Remote Participation All persons present and remote member must be clearly audible to each other Quorum, including chair, must be physically present Remote members may vote and are not deemed absent If video technology used, remote member must be clearly visible to all persons present in the meeting location.
  18. 18. Permissible Reasons for Remote Participation Chair determines that one or more of the following factors makes the members’ physical attendance unreasonably difficult:  Personal illness  Personal disability  Emergency  Military service  Geographic distance
  19. 19. Technology for Remote Participation Acceptable methods:  Telephone, internet, satellite enabled audio, video conferencing  Any other technology that enables remote participation and all persons present at the meeting location to be clearly audible to one another Public Body determines which method to use Chair decides how to address technical difficulties  Encouraged to suspend discussions while reasonable corrective efforts are made  Disconnections noted in meeting minutes, including time
  20. 20. Procedures for Remote Participation Member who wishes to participate remotely notifies chair as soon as reasonably possible prior to meeting  Includes reason for request and facts supporting At start of meeting, chair announces name of member who will be participating remotely and reason Information recorded in minutes All votes taken are by roll call
  21. 21.  May participate in executive session  Must state no other person present or able to hear discussion, unless that person’s presence is approved by simple majority vote When feasible, in advance of meeting, chair distributes to remote participant copies of all documents/exhibits reasonably anticipates being used  If used, documents shall be part of official record of meeting, listed in meeting minutes, and retained per c. 30A, s. 22
  22. 22. Public Participation Allowed to attend all open sessions Allowed to make audio or video recording of open session  Notify chair  Comply with reasonable requirements regarding equipments established by chair so as not to interfere with meeting  Chair informs other attendees of recording at beginning of meeting May not address body without permission of chair May not disrupt meeting  After warning, chair may order person to leave  If fails to leave, chair may authorize constable or officer to remove
  23. 23. Minutes In General Created and approved in a timely manner Date, time, and place of meeting All members present or absent All decisions made and actions taken including a record of all votes Summary of discussions on each subject A list of documents and other exhibits used at the meeting Constitute public documents
  24. 24. Open Session Minutes Made available to public within 10 days upon request  Whether approved or in draft form  Including materials or exhibits (if requested) Exemptions to disclosure:  Materials (other than those created by members of the public body) used in a performance evaluation of an individual  Materials (other than a resume, which is always subject to disclosure) used in deliberations about employment or appointment of individuals, including applications and supporting materials Evaluation documents created by body are public
  25. 25. Executive Session Minutes Not required to disclose minutes, notes or materials used in executive session if would defeat purpose of meeting Once disclosure would no longer defeat purposes of executive session, all minutes, notes, materials must be disclosed unless otherwise exempt from public records law Period review of executive session minutes  To determine whether continued non-disclosure is warranted  Such determination must be included in subsequent meetings Requests – respond within 10 days  If haven’t reviewed yet, must do so prior to next meeting or within 30 days, whichever is sooner
  26. 26. Complaint Process Enforced through AGO’s office First file with body (with copy to Town Clerk)  Within 30 days of violation  Body has 14 days to respond With AGO  30 days after filed with public body  AGO will review complaint and any remedial action taken by body  May seek additional info from public body  Seek to resolve within 90 days  May hold hearings
  27. 27. AGO Enforcement Authority Upon finding of a violation, AGO may:  Compel immediate and future compliance with OML  Compel attendance at training sessions  Nullify in whole or in part any action taken at the meeting  Impose civil penalties of not more than $1000 for each intentional violation  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 actions

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