Monday, June 21, 2010

Mark Cerel: Analysis of Open Meeting Law

This was the document shared by Mark Cerel during the Town Council Meeting of June 16th on the revisions to the Open Meeting Law.


1.              OVERVIEW

·       Starting July 1, 2010
·       New law enhances a public body's ability to attend meeting of other public bodies and otherwise to meet and communicate without deliberating
·       New notice and posting requirements
·       Changes to conduct of meeting
(a)              New duties of Chairman
(b)              Executive Session
·       Minutes and documents – Also impacts public records law


·       New definition of "Deliberate":  "Deliberation", an oral or written communication through any medium, including electronic mail, between or among a quorum of a public body on any public business within its jurisdiction.
(a)              Exceptions: Not "Deliberation":  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.
·       New definition of "Meeting":  "Meeting", a deliberation by a public body with respect to any matter within the body's jurisdiction.
(a)              Exceptions, i.e. not a meeting provided, however, "meeting" shall not include:
              -              an on-site inspection of a project or program, so long as the members do not deliberate;
              -              attendance by a quorum of a public body at a public or private gathering, including a conference or training program or a media, social or other event, so long as the members do not deliberate;
              -              attendance by a quorum of a public body at a meeting of another public body that has complied with the notice requirements of the open meeting law, so long as the visiting members communicate only by open participation in the meeting on those matters under discussion by the host body and do not deliberate;
              -              a meeting of a quasi-judicial board or commission held for the sole purpose of making a decision required in an adjudicatory proceeding brought before it;
·       New definition of "Public Body":
(a)              a multiple-member board, commission, committee or subcommittee
(b)              within the executive or legislative branch or within any county, district, city, region or town,
(c)              however created, elected, appointed or otherwise constituted,
(d)              established to serve a public purpose;
(e)              provided, however, that the governing board of a local housing, redevelopment or other similar authority shall be deemed a local public body;
(f)              provided, further, that the governing board or body of any other authority established by the general court to serve a public purpose in the commonwealth or any part thereof shall be deemed a state public body;
(g)              provided, further, that "public body" shall not include the general court or the committees or recess commissions thereof, bodies of the judicial branch or bodies appointed by a constitutional officer solely for the purpose of advising a constitutional officer
(h)              and shall not include the board of bank incorporation or the policyholder's protective board;
(i)              and provided further, that a subcommittee shall include any multiple-member body created to advise or make recommendations to a public body.


·       Still 48 hours – but now cannot include Saturdays; Saturday, Sunday and holidays not included in count
·       Chair must include in notice a listing of topics that the Chair "reasonably anticipates will be discussed at meeting"
·       NOTE:  Notice requirement are not necessarily same as agenda
·       Emergency meetings – post as soon as possible prior to the meeting
·       Posting must be "conspicuously visible to the public at all hours in or on the municipal building"
(a)              Options being considered by AG
              -              bulletin board
              -              other location
              -              computer monitor
              -              telephone message

4.              CONDUCT OF MEETING

·       Chair must announce at beginning if anyone is making a video or audio recording
·       Person can "transmit" meeting through any medium, subject to reasonable requirements of the Chair; person needs to notify Chair re: recording
·       Still need permission of Chair to speak
·       Pending approval of AG, may be able to have electronic remote participation (physical quorum must still be present)

5.              EXECUTIVE SESSIONS

·       Statute still contains same substantive exemptions from Open Session, but:
(a)              exemptions no. 1 (discuss health, reputation, character) and no. 2 now combined and new right provided for the person who is the subject of the meeting to make an independent record" of the ES
·       Chair needs to state the purpose of the ES and "all subjects which may be revealed without compromising the purpose for which the ES was called"
·       For ES for litigation/collective bargaining, real estate, and interviewing applicants, Chair must state that OS will be detrimental
·       Important to be sure Chair does this – include reminder in motion for ES

6.              NEW DUTIES OF CHAIR

·       Chair must list in notice topics which Chair "reasonably anticipates will be discussed at meeting"
·       Practice Tip – include in "notice" phrase: "The listing of matters are those reasonably anticipated by the Chair which may be discussed at the meeting.  Not all items listed may in fact be discussed and other items not listed may also be brought up for discussion to the extent permitted by law".
·       Announce at beginning if anyone is making a video or audio recording
·       Chair needs to state the purpose of the ES and "all subjects which may be revealed without compromising the purpose for which the ES was called"
·       Must state whether body is returning to Open Session or not.  (If you fail to so state, cannot go back to OS.)
·       Although tasks can be done by others, Chair should be sure that someone is keeping track of documents used at meeting; likely to be Clerk member or administrative staff person.
(a)              list of documents
(b)              copies of documents
·       Chair or designee review ES minutes at reasonable intervals
·       To see if continued non-disclosure is still warranted under the exemptions


·       Still important part of Open Meeting Law
·       Minutes remain key public record of meeting
·       Minutes now must:
(a)     Provide "summary of the discussion on each subject"
(b)     Include list of document and exhibits "used by the body" at the meeting
(c)  Documents used at meeting (OS) are not shielded under the Public Records Law exemptions, except:
    evaluation material
    -  employment application materials
(d)  be made available within ten days of request, whether approved or in draft form
·       For Executive Sessions (ES)
(a)  Documents not public until purpose of ES has expired, and documents can still remain not subject to disclosure:
       -  are covered by the attorney-client privilege; or
if publication will defeat lawful purpose of ES and ES was lawfully held; or
        - if one or more Public Records exemptions apply
- if ES for collective bargaining or litigation and release would jeopardize position of body (& then only for so long as needed) (unless attorney-client privilege or Public Records exemption)
·       Any document or exhibit "used" at meeting is now part of the official record of the meeting and must be maintained as such
·       What is meant by "used"?  (Conflict between Section 22(d) and (e):
(a)              Section 22(d): used by body
(b)              Section 22(e): used at the session

8.              MINUTES OF MEETINGS

·       All minutes – for both OS and ES – must be:
(a)   Accurate
(b)   Include date, time and place
(c)   Members present or absent
(d)   Summary of discussion on each subject
(e)   List of all document/exhibits used
(f)    Decisions made
(g)   Actions taken
·       Created and approved w/l timely manner
·       For OS minutes, to be made available within 10 days, even if in draft form, to anyone requesting same
·       Documents and exhibits used, along with minutes, now public records and part of the official record of meeting
·       Review and release
(a)    At "reasonable intervals", Public body, Chair or designee reviews minutes of ES
(b)  To see if continued non-disclosure is still warranted under the exemptions
(c)  Determination announced at next meeting and determination to be included in meeting minutes
(d)  10-day response period still in effect
(e)  If body has not already reviewed executive session minutes and there is a request, body is to review minutes and release non-exempt minutes no later than body's next meeting or within 30 days, which ever first; cannot assess fee for time body spent in review

Franklin, MA

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