HomeMy WebLinkAbout2020-05-20 Select Board PacketOpen Meeting Law
Guide
Commonwealth of Massachusetts
Office of Attorney General
Maura HealeyCOMMON
W
EALTH OF M A S S A CH USETTSOctober 6, 2017
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Dear Massachusetts Residents:
One of the most important functions of the Attorney General’s Office is to promote
openness and transparency in government. Every resident of Massachusetts should be able to
access and understand the reasoning behind the government policy decisions that affect our
lives. My office is working to achieve that goal through fair and consistent enforcement of the
Open Meeting Law, along with robust educational outreach about the law’s requirements.
The Open Meeting Law requires that most meetings of public bodies be held in public,
and it establishes rules that public bodies must follow in the creation and maintenance of
records relating to those meetings. Our office is dedicated to providing educational materials,
outreach and training sessions to ensure that members of public bodies and citizens
understand their rights and responsibilities under the law.
Whether you are a town clerk or town manager, a member of a public body, or a
concerned citizen, I want to thank you for taking the time to understand the Open Meeting
Law. If you would like additional guidance on the law, I encourage you to contact my Division
of Open Government at (617) 963-2540 or visit our website at
www.mass.gov/ago/openmeeting for more information.
Sincerely,
Maura Healey
Massachusetts Attorney General
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TABLE OF CONTENTS
Contents
Overview ................................................................................................................................................. 1
Certification .................................................................................................................................... 1
Meetings of Public Bodies ...................................................................................................................... 2
What constitutes a public body? .................................................................................................... 2
What constitutes a deliberation? ................................................................................................... 3
Notice ..................................................................................................................................................... 5
Executive Session.................................................................................................................................... 8
The Ten Purposes for Executive Session ........................................................................................ 8
Remote Participation ............................................................................................................................ 13
Public Participation ............................................................................................................................... 15
Minutes................................................................................................................................................. 16
Open Session Meeting Records .................................................................................................... 16
Executive Session Meeting Records ............................................................................................. 17
Open Meeting Law Complaints ............................................................................................................ 17
Open Meeting Law complaint procedure .................................................................................... 18
Will the Attorney General’s Office provide training on the Open Meeting Law? ................................ 20
Contacting the Attorney General ......................................................................................................... 21
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Attorney General’s Open Meeting Law Guide
Overview
Purpose of the Law
The purpose of the Open Meeting Law is to ensure transparency in the
deliberations on which public policy is based. Because the democratic process depends
on the public having knowledge about the considerations underlying governmental
action, the Open Meeting Law requires, with some exceptions, that meetings of public
bodies be open to the public. It also seeks to balance the public’s interest in witnessing
the deliberations of public officials with the government’s need to manage its
operations efficiently.
Attorney General’s Authority
The Open Meeting Law was revised as part of the 2009 Ethics Reform Bill, and
now centralizes responsibility for statewide enforcement of the law in the Attorney
General’s Office. G.L. c. 30A, § 19(a). To help public bodies understand and comply with
the law, the Attorney General has created the Division of Open Government. The
Division of Open Government provides training, responds to inquiries, investigates
complaints, and when necessary, makes findings and orders remedial action to address
violations of the law. The purpose of this Guide is to inform elected and appointed
members of public bodies, as well as the interested public, of the basic requirements of
the law.
Certification
Within two weeks of a member’s election or appointment or the taking of the
oath of office, whichever occurs later, all members of public bodies must complete the
attached Certificate of Receipt of Open Meeting Law Materials certifying that they have
received these materials, and that they understand the requirements of the Open
Meeting Law and the consequences of violating it. The certification must be retained
where the public body maintains its official records. All public body members should
familiarize themselves with the Open Meeting Law, the Attorney General’s regulations,
this Guide, and Open Meeting Law determinations issued to the member’s public body
within the last five years in which the Attorney General found a violation of the law.
In the event a Certificate has not yet been completed by a presently serving
member of a public body, the member should complete and submit the Certificate at
the earliest opportunity to be considered in compliance with the law. A public body
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member must sign a new Certificate upon reelection or reappointment to the public
body but need not sign a Certificate when joining a subcommittee.
Open Meeting Law Website
This Guide is intended to be a clear and concise explanation of the Open Meeting
Law’s requirements. The complete law, as well as the Attorney General’s regulations,
training materials, and determinations and declinations as to complaints can be found
on the Attorney General’s Open Meeting website, www.mass.gov/ago/openmeeting.
Members of public bodies, other local and state government officials, and the public are
encouraged to visit the website regularly for updates on the law and the Attorney
General’s interpretations of it.
Meetings of Public Bodies
What meetings are covered by the Open Meeting Law?
With certain exceptions, all meetings of a public body must be open to the
public. A meeting is generally defined as “a deliberation by a public body with respect
to any matter within the body’s jurisdiction.” As explained more fully below, a
deliberation is a communication between or among members of a public body.
These four questions will help determine whether a communication constitutes
a meeting subject to the law:
1) is the communication between or among members of a public body;
2) if so, does the communication constitute a deliberation;
3) does the communication involve a matter within the body’s jurisdiction; and
4) if so, does the communication fall within an exception listed in the law?
What constitutes a public body?
While there is no comprehensive list of public bodies, any multi-member board,
commission, committee or subcommittee within the executive or legislative branches1
of state government, or within any county, district, city, region or town, if established to
serve a public purpose, is subject to the law. The law includes any multi-member body
created to advise or make recommendations to a public body, and also includes the
governing board of any local housing or redevelopment authority, and the governing
board or body of any authority established by the Legislature to serve a public purpose.
The law excludes the Legislature and its committees, bodies of the judicial branch, and
Although the Legislature itself is not a public body subject to the Open Meeting Law, certain
legislative commissions must follow the Law’s requirements.
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bodies appointed by a constitutional officer solely for the purpose of advising a
constitutional officer.
Boards of selectmen and school committees (including those of charter schools)
are certainly subject to the Open Meeting Law, as are subcommittees of public bodies,
regardless of whether their role is decision-making or advisory. Individual government
officials, such as a town manager or police chief, and members of their staff are not
subject to the law, and so they may meet with one another to discuss public business
without needing to comply with Open Meeting Law requirements. This exception for
individual officials to the general Open Meeting Law does not apply where such officials
are serving as members of a multiple-member public body that is subject to the law.
Bodies appointed by a public official solely for the purpose of advising the official
on a decision that individual could make alone are not public bodies subject to the Open
Meeting Law. For example, a school superintendent appoints a five-member advisory
body to assist her in nominating candidates for school principal, a task the
superintendent could perform herself. That advisory body would not be subject to the
Open Meeting Law.2
What constitutes a deliberation?
The Open Meeting Law defines deliberation as “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.” Distribution of a
meeting agenda, scheduling or procedural information, or reports or documents that
may be discussed at a meeting is often helpful to public body members when preparing
for upcoming meetings. These types of communications generally will not constitute
deliberation, provided that, when these materials are distributed, no member of the
public body expresses an opinion on matters within the body’s jurisdiction. Additionally,
certain communications that may otherwise be considered deliberation are specifically
exempt by statute from the definition of deliberation (for example, discussion of the
recess and continuance of a Town Meeting pursuant to G.L. c. 39, § 10A(a) is not
deliberation).
To be a deliberation, the communication must involve a quorum of the public
body. A quorum is usually a simple majority of the members of a public body. Thus, a
communication among less than a quorum of the members of a public body will not be
a deliberation, unless there are multiple communications among the members of the
public body that together constitute communication among a quorum of members.
Courts have held that the Open Meeting Law applies when members of a public body
communicate in a serial manner in order to evade the application of the law.
2 See Connelly v. School Committee of Hanover, 409 Mass. 232 (1991).
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Note that the expression of an opinion on matters within the body’s jurisdiction
to a quorum of a public body is a deliberation, even if no other public body member
responds. For example, if a member of a public body sends an email to a quorum of a
public body expressing her opinion on a matter that could come before that body, this
communication violates the law even if none of the recipients responds.
What matters are within the jurisdiction of the public body?
The Open Meeting Law applies only to the discussion of any “matter within the
body’s jurisdiction.” The law does not specifically define “jurisdiction.” As a general
rule, any matter of public business on which a quorum of the public body may make a
decision or recommendation is considered a matter within the jurisdiction of the public
body. Certain discussions regarding procedural or administrative matters may also
relate to public business within a body's jurisdiction, such as where the discussion
involves the organization and leadership of the public body, committee assignments, or
rules or bylaws for the body. Statements made for political purposes, such as where a
public body’s members characterize their own past achievements, generally are not
considered communications on public business within the jurisdiction of the public
body.
What are the exceptions to the definition of a meeting?
There are five exceptions to the definition of a meeting under the Open Meeting
Law.
1. Members of a public body may conduct an on-site inspection of a project or
program; however, they may not deliberate at such gatherings;
2. Members of a public body may attend a conference, training program or event;
however, they may not deliberate at such gatherings;
3. Members of a public body may attend a meeting of another public body
provided that they communicate only by open participation; however, they may
not deliberate at such gatherings;
4. Meetings of quasi-judicial boards or commissions held solely to make decisions
in an adjudicatory proceeding are not subject to the Open Meeting Law; and
5. Town Meetings, which are subject to other legal requirements, are not governed
by the Open Meeting Law. See, e.g. G.L. c. 39, §§ 9, 10 (establishing procedures
for Town Meeting).
The Attorney General interprets the exemption for “quasi-judicial boards or
commissions” to apply only to certain state “quasi-judicial” bodies and a very limited
number of public bodies at other levels of government whose proceedings are
specifically defined as “agencies” for purposes of G.L. c. 30A.
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We have received several inquiries about the exception for Town Meeting and
whether it applies to meetings outside of a Town Meeting session by Town Meeting
members or Town Meeting committees or to deliberation by members of a public body
– such as a board of selectmen – during a session of Town Meeting. The Attorney
General interprets this exemption to mean that the Open Meeting Law does not reach
any aspect of Town Meeting. Therefore, the Attorney General will not investigate
complaints alleging violations in these situations. Note, however, that this is a matter of
interpretation and future Attorneys General may choose to apply the law in such
situations.
Notice
What are the requirements for posting notice of meetings?
Except in cases of emergency, a public body must provide the public with notice
of its meeting 48 hours in advance, excluding Saturdays, Sundays, and legal holidays.
Notice of emergency meetings must be posted as soon as reasonably possible prior to
the meeting. Also note that other laws, such as those governing procedures for public
hearings, may require additional notice.
What are the requirements for filing and posting meeting notices for local public
bodies?
For local public bodies, meeting notices must be filed with the municipal clerk
with enough time to permit posting of the notice at least 48 hours in advance of the
public meeting. Notices may be posted on a bulletin board, in a loose-leaf binder, or on
an electronic display (e.g. television, computer monitor, or an electronic bulletin board),
provided that the notice is conspicuously visible to the public at all hours in, on, or near
the municipal building in which the clerk’s office is located. In the event that meeting
notices posted in the municipal building are not visible to the public at all hours, then
the municipality must either post notices on the outside of the building or adopt the
municipal website as the official method of notice posting.
Prior to utilizing the municipal website, the Chief Executive Officer of the
municipality must authorize or vote to adopt such website as the official method of
posting notice. The clerk of the municipality must inform the Division of Open
Government of its notice posting method and must inform the Division of any future
changes to that posting method. Public bodies must consistently use the most current
notice posting method on file with the Division. A description of the website, including
directions on how to locate notices on the website, must also be posted on or adjacent
to the main and handicapped accessible entrances to the building where the clerk’s
office is located. Note that meeting notices must still be available in or around the
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clerk’s office so that members of the public may view the notices during normal
business hours.
What are the requirements for posting notices for regional, district, county and state
public bodies?
For regional or district public bodies and regional school districts, meeting
notices must be filed and posted in the same manner required of local public bodies in
each of the communities within the region or district. As an alternative method of
notice, a regional or district public body may post a meeting notice on the regional or
district public body’s website. The regional school district committee must file and post
notice of the website address, as well as directions on how to locate notices on the
website, in each city and town within the region or district. A copy of the notice must
be filed and kept by the chair of the public body or the chair’s designee.
County public bodies must file meeting notices in the office of the county
commissioners and post notice of the meeting in a manner conspicuously visible to the
public at all hours at a place or places designated by the county commissioners for
notice postings. As an alternative method of notice, a county public body may post
notice of meetings on the county public body’s website. The county public body must
file and post notice of the website address, as well as directions on how to locate
notices on the website, in the office of the county commissioners. A copy of the notice
shall be filed and kept by the chair of the county public body or the chair’s designee.
State public bodies must post meeting notices on the website of the public body
or its parent agency. The chair of a state public body must notify the Attorney General
in writing of the specific webpage location where notices will be posted and of any
subsequent changes to that posting location. A copy of each meeting notice must also
be sent to the Secretary of State’s Regulations Division and should be forwarded to the
Executive Office of Administration and Finance, which maintains a listing of state public
body meetings.
Where a public body adopts a website as the official method of posting notices,
it must make every effort to ensure that the website is accessible at all hours. If a
website becomes inaccessible within 48 hours of a meeting, not including Saturdays,
Sundays or legal holidays, the website must be restored within six business hours of the
discovery. If the website is not restored within six business hours, the public body must
re-post notice of its meeting to another date and time, in accordance with the
requirements of the Open Meeting Law.
A note about accessibility
Public bodies are subject to all applicable state and federal laws that govern
accessibility for persons with disabilities. These laws include the Americans with
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Disabilities Act, the federal Rehabilitation Act of 1973, and state constitutional
provisions. For instance, public bodies that adopt website posting as an alternative
method of notice must ensure that the website is readily accessible to people with
disabilities, including individuals who use screen readers. All open meetings of public
bodies must be accessible to persons with disabilities. Meeting locations must be
accessible by wheelchair, without the need for special assistance. Also sign language
interpreters for deaf or hearing-impaired persons must be provided, subject to
reasonable advance notice.3 The Attorney General’s Disability Rights Project is available
to answer questions about accessibility and may be reached at
(617) 963-2939.
What information must meeting notices contain?
Meeting notices must be posted in a legible, easily understandable format;
contain the date, time, and place of the meeting; and list all topics that the chair
reasonably anticipates, 48 hours in advance, will be discussed at the meeting. The list of
topics must be sufficiently specific to reasonably inform the public of the issues to be
discussed at the meeting. Where there are no anticipated topics for discussion in open
session other than the procedural requirements for convening an executive session, the
public body should list “open session” as a topic, in addition to the executive session, so
the public is aware that it has the opportunity to attend and learn the basis for the
executive session.
Meeting notices must also indicate the date and time that the notice was posted,
either on the notice itself or in a document or website accompanying the notice. If a
notice is revised, the revised notice must also conspicuously record both the date and
time the original notice was posted as well as the date and time the last revision was
posted. Recording the date and time enables the public to observe that public bodies
are complying with the Open Meeting Law’s notice requirements without requiring
constant vigilance. Additionally, in the event of a complaint, it provides the Attorney
General with evidence of compliance with those requirements.
If a discussion topic is proposed after a meeting notice is posted, and it was not
reasonably anticipated by the chair more than 48 hours before the meeting, the public
body should update its posting to provide the public with as much notice as possible of
what subjects will be discussed during the meeting. Although a public body may
consider a topic that was not listed in the meeting notice if it was not anticipated, the
Attorney General strongly encourages public bodies to postpone discussion and action
on topics that are controversial or may be of particular interest to the public if the topic
was not listed in the meeting notice.
3 The Massachusetts Commission for the Deaf and Hard of Hearing will assist with arrangements for a
sign language interpreter. The Commission may be reached at 617-740-1600 VOICE and 617-740-
1700 TTY.
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Executive Session
When can a public body meet in executive session?
While all meetings of public bodies must be open to the public, certain topics
may be discussed in executive, or closed, session. Before going into an executive
session, the chair of the public body must first:
• Convene in open session;
• State the reason for the executive session, stating all subjects that may be
revealed without compromising the purpose for which the executive session was
called;
• State whether the public body will reconvene in open session at the end of the
executive session; and
• Take a roll call vote of the body to enter executive session.
Where a public body member is participating in an executive session remotely,
the member must state at the start of the executive session that no other person is
present or able to hear the discussion at the remote location. The public body may
authorize, by a simple majority vote, the presence and participation of other individuals
at the remote participant’s location.
While in executive session, the public body must keep accurate records, all votes
taken must be recorded by roll call, and the public body may only discuss matters for
which the executive session was called.
The Ten Purposes for Executive Session
The law states ten specific purposes for which an executive session may be held,
and emphasizes that these are the only reasons for which a public body may enter
executive session.
The ten purposes for which a public body may vote to hold an executive session
are:
1. To discuss the reputation, character, physical condition or mental health,
rather than professional competence, of an individual, or to discuss the
discipline or dismissal of, or complaints or charges brought against, a public
officer, employee, staff member or individual. The individual to be discussed
in such executive session shall be notified in writing by the public body at least
48 hours prior to the proposed executive session; provided, however, that
notification may be waived upon written agreement of the parties.
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This purpose is designed to protect the rights and reputation of
individuals. Nevertheless, where a public body is discussing an employee
evaluation, considering applicants for a position, or discussing the qualifications
of any individual, these discussions should be held in open session to the extent
that the discussion deals with issues other than the reputation, character,
health, or any complaints or charges against the individual. An executive session
called for this purpose triggers certain rights for the individual who is the subject
of the discussion. The individual has the right to be present, though he or she
may choose not to attend. The individual who is the subject of the discussion
may also choose to have the discussion in an open meeting, and that choice
takes precedence over the right of the public body to go into executive session.
While the imposition of disciplinary sanctions by a public body on an
individual fits within this purpose, this purpose does not apply if, for example,
the public body is deciding whether to lay off a large number of employees
because of budgetary constraints.
2. To conduct strategy sessions in preparation for negotiations with nonunion
personnel or to conduct collective bargaining sessions or contract negotiations
with nonunion personnel;
Generally, a public body must identify the specific non-union personnel
or collective bargaining unit with which it is negotiating before entering into
executive session under Purpose 2. A public body may withhold the identity of
the non-union personnel or bargaining unit if publicly disclosing that information
would compromise the purpose for which the executive session was called.
While we generally defer to public bodies’ assessment of whether the inclusion
of such details would compromise the purpose for an executive session, a public
body must be able to demonstrate a reasonable basis for that claim if
challenged.
While a public body may agree on terms with individual non-union
personnel in executive session, the final vote to execute such agreements must
be taken by the public body in open session. In contrast, a public body may
approve final terms and execute a collective bargaining agreement in executive
session, but should promptly disclose the agreement in open session following
its execution.
Collective Bargaining Sessions: These include not only the bargaining
sessions, but also include grievance hearings that are required by a collective
bargaining agreement.
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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;
Generally, a public body must identify the collective bargaining unit with
which it is negotiating or the litigation matter it is discussing before entering into
executive session under Purpose 3. A public body may withhold the identity of
the collective bargaining unit or name of the litigation matter if publicly
disclosing that information would compromise the purpose for which the
executive session was called. While we generally defer to public bodies’
assessment of whether the inclusion of such details would compromise the
purpose for an executive session, a public body must be able to demonstrate a
reasonable basis for that claim if challenged.
Collective Bargaining Strategy: Discussions with respect to collective
bargaining strategy include discussion of proposals for wage and benefit
packages or working conditions for union employees. The public body, if
challenged, has the burden of proving that an open meeting might have a
detrimental effect on its bargaining position. The showing that must be made is
that an open discussion may have a detrimental effect on the collective
bargaining process; the body is not required to demonstrate a definite harm that
would have arisen. At the time the executive session is proposed and voted on,
the chair must state on the record that having the discussion in an open session
may be detrimental to the public body’s bargaining or litigating position.
Litigation Strategy: Discussions concerning strategy with respect to
ongoing litigation obviously fit within this purpose but only if an open meeting
may have a detrimental effect on the litigating position of the public body.
Discussions relating to potential litigation are not covered by this exemption
unless that litigation is clearly and imminently threatened or otherwise
demonstrably likely. That a person is represented by counsel and supports a
position adverse to the public body’s does not by itself mean that litigation is
imminently threatened or likely. Nor does the fact that a newspaper reports a
party has threatened to sue necessarily mean imminent litigation.
Note: For the reasons discussed above, a public body’s discussions with
its counsel do not automatically fall under this or any other purpose for holding
an executive session.
4. To discuss the deployment of security personnel or devices, or strategies with
respect thereto;
5. To investigate charges of criminal misconduct or to consider the filing of
criminal complaints;
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This purpose permits an executive session to investigate charges of
criminal misconduct and to consider the filing of criminal complaints. Thus, it
primarily involves discussions that would precede the formal criminal process in
court. Purpose 1 is related, in that it permits an executive session to discuss
certain complaints or charges, which may include criminal complaints or charges,
but only those that have already been brought. However, Purpose 1 confers
certain rights of participation on the individual involved, as well as the right for
the individual to insist that the discussion occur in open session. Purpose 5 does
not require that the same rights be given to the person who is the subject of a
criminal complaint. To the limited extent that there is overlap between Purposes
1 and 5, a public body has discretion to choose which purpose to invoke when
going into executive session.
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;
Generally, a public body must identify the specific piece of property it
plans to discuss before entering into executive session under Purpose 6. A public
body may withhold the identity of the property if publicly disclosing that
information would compromise the purpose for which the executive session was
called. While we generally defer to public bodies’ assessment of whether the
inclusion of such details would compromise the purpose for an executive
session, a public body must be able to demonstrate a reasonable basis for that
claim if challenged.
Under this purpose, as with the collective bargaining and litigation
purpose, an executive session may be held only where an open meeting may
have a detrimental impact on the body’s negotiating position with a third party.
At the time that the executive session is proposed and voted on, the chair must
state on the record that having the discussion in an open session may be
detrimental to the public body’s negotiating position.
7. To comply with, or act under the authority of, any general or special law or
federal grant-in-aid requirements;
There may be provisions in state statutes or federal grants that require or
specifically allow a public body to consider a particular issue in a closed session.
Before entering executive session under this purpose, the public body must cite
the specific law or federal grant-in-aid requirement that necessitates
confidentiality. A public body may withhold that information only if publicly
disclosing it would compromise the purpose for which the executive session was
called. While we generally defer to public bodies’ assessment of whether the
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inclusion of such details would compromise the purpose for an executive
session, a public body must be able to demonstrate a reasonable basis for that
claim if challenged.
8. 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,
however, that this clause shall not apply to any meeting, including meetings of
a preliminary screening committee, to consider and interview applicants who
have passed a prior preliminary screening;
This purpose permits a hiring subcommittee of a public body or a
preliminary screening committee to conduct the initial screening process in
executive session. This purpose does not apply to any stage in the hiring process
after the screening committee or subcommittee votes to recommend candidates
to its parent body. It may, however, include a review of résumés and multiple
rounds of interviews by the screening committee aimed at narrowing the group
of applicants down to finalists. At the time that the executive session is
proposed and voted on, the chair must state on the record that having the
discussion in an open session will be detrimental to the public body’s ability to
attract qualified applicants for the position. If the public body opts to convene a
preliminary screening committee, the committee must contain less than a
quorum of the members of the parent public body. The committee may also
contain members who are not members of the parent public body.
Note that a public body is not required to create a preliminary screening
committee to consider or interview applicants. However, if the body chooses to
conduct the review of applicants itself, it may not do so in executive session.
9. To meet or confer with a mediator, as defined in section 23C of chapter 233,
with respect to any litigation or decision on any public business within its
jurisdiction involving another party, group or entity, provided that:
(i) any decision to participate in mediation shall be made in an open
session and the parties, issues involved and purpose of the mediation
shall be disclosed; and
(ii) no action shall be taken by any public body with respect to those
issues which are the subject of the mediation without deliberation and
approval for such action at an open session.
10. To discuss trade secrets or confidential, competitively-sensitive or other
proprietary information provided:
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• in the course of activities conducted by a governmental body as an energy
supplier under a license granted by the department of public utilities
pursuant to section 1F of chapter 164;
• in the course of activities conducted as a municipal aggregator under section
134 of said chapter 164; or
• in the course of activities conducted by a cooperative consisting of
governmental entities organized pursuant to section 136 of said chapter 164;
• when such governmental body, municipal aggregator or cooperative
determines that such disclosure will adversely affect its ability to conduct
business in relation to other entities making, selling or distributing electric
power and energy.
Remote Participation
May a member of a public body participate remotely?
The Attorney General’s Regulations, 940 CMR 29.10, permit remote participation
in certain circumstances. However, the Attorney General strongly encourages members
of public bodies to physically attend meetings whenever possible. Members of public
bodies have a responsibility to ensure that remote participation in meetings is not used
in a way that would defeat the purposes of the Open Meeting Law, namely promoting
transparency with regard to deliberations and decisions on which public policy is based.
Note that the Attorney General’s regulations enable members of public bodies to
participate remotely if the practice has been properly adopted, but do not require that a
public body permit members of the public to participate remotely. If a public body
chooses to allow individuals who are not members of the public body to participate
remotely in a meeting, it may do so without following the Open Meeting Law’s remote
participation procedures.
How can the practice of remote participation be adopted?
Remote participation may be used during a meeting of a public body if it has first
been adopted by the chief executive officer of the municipality for local public bodies,
the county commissioners for county public bodies, or by a majority vote of the public
body for retirement boards, district, regional and state public bodies. The chief
executive officer may be the board of selectmen, the city council, or the mayor,
depending on the municipality. See G.L. c. 4, § 7.
If the chief executive officer in a municipality authorizes remote participation,
that authorization applies to all public bodies in the municipality. 940 CMR 29.10(2)(a).
However, the chief executive officer determines the amount and source of payment for
any costs associated with remote participation and may decide to fund the practice only
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for certain public bodies. See 940 CMR 29.10(6)(e). In addition, the chief executive
officer can authorize public bodies in that municipality to "opt out" of the practice
altogether. See 940 CMR 29.10(8).
Note about Local Commissions on Disability: Local commissions on disability
may decide by majority vote of the commissioners at a regular meeting to permit
remote participation during a specific meeting or during all commission meetings. G.L.
c. 30A, § 20(e). Adoption by the municipal adopting authority is not required.
What are the permissible reasons for remote participation?
Once remote participation is adopted, any member of a public body may
participate remotely only if physical attendance would be unreasonably difficult.
What are the acceptable means of remote participation?
Acceptable means of remote participation include telephone, internet, or
satellite enabled audio or video conferencing, or any other technology that enables the
remote participant and all persons present at the meeting location to be clearly audible
to one another. Text messaging, instant messaging, email and web chat without audio
are not acceptable methods of remote participation. Note that accommodations must
be made for any public body member who requires TTY service, video relay service, or
other form of adaptive telecommunications.
What are the minimum requirements for remote participation?
Any public body using remote participation during a meeting must ensure that the
following minimum requirements are met:
1. A quorum of the body, including the chair or, in the chair’s absence, the person
chairing the meeting, must be physically present at the meeting location;
2. Members of a public body who participate remotely and all persons present at
the meeting location must be clearly audible to each other; and
3. All votes taken during a meeting in which a member participates remotely must
be by roll call vote.
What procedures must be followed if remote participation is used at a meeting?
At the start of any meeting during which a member of a public body will
participate remotely, the chair must announce the name of any member who is
participating remotely; such information must also be recorded in the meeting
minutes. The chair’s statement does not need to contain any detail about the reason
for the member’s remote participation.
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Members of public bodies who participate remotely may vote and shall not be
deemed absent for purposes of G.L. c. 39, § 23D. In addition, members who participate
remotely may participate in executive sessions but must state at the start of any such
session that no other person is present or able to hear the discussion at the remote
location, unless the public body has approved the presence of that individual.
If technical difficulties arise as a result of utilizing remote participation, the chair
(or, in the chair’s absence, person chairing the meeting) may decide how to address the
situation. Public bodies are encouraged, whenever possible, to suspend discussion
while reasonable efforts are made to correct any problem that interferes with a remote
participant’s ability to hear or be heard clearly by all persons present at the meeting
location. If a remote participant is disconnected from the meeting, the minutes must
note that fact and the time at which the disconnection occurred.
Public Participation
What public participation in meetings must be allowed?
Under the Open Meeting Law, the public is permitted to attend meetings of
public bodies but is excluded from an executive session that is called for a valid purpose
listed in the law. While the public is permitted to attend an open meeting, an individual
may not address the public body without permission of the chair. An individual may not
disrupt a meeting of a public body, and at the request of the chair, all members of the
public shall be silent. If, after clear warning, a person continues to be disruptive, the
chair may order the person to leave the meeting. If the person does not leave, the chair
may authorize a constable or other officer to remove the person. Although public
participation is entirely within the chair’s discretion, the Attorney General encourages
public bodies to allow as much public participation as time permits.
Any member of the public may make an audio or video recording of an open
session of a public meeting. A member of the public who wishes to record a meeting
must first notify the chair and must comply with reasonable requirements regarding
audio or video equipment established by the chair so as not to interfere with the
meeting. The chair is required to inform other attendees of any such recording at the
beginning of the meeting. If someone arrives after the meeting has begun and wishes
to record a meeting, that person should attempt to notify the chair prior to beginning
recording, ideally in a manner that does not significantly disrupt the meeting in progress
(such as passing a note for the chair to the board administrator or secretary). The chair
should endeavor to acknowledge such attempts at notification and announce the fact of
any recording to those in attendance.
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Minutes
What records of public meetings must be kept?
Public bodies are required to create and maintain accurate minutes of all
meetings, including executive sessions. The minutes, which must be created and
approved in a timely manner, must include:
• the date, time and place of the meeting;
• the members present or absent;
• the decisions made and actions taken, including a record of all votes;
• a summary of the discussions on each subject;
• a list of all documents and exhibits used at the meeting; and
• the name of any member who participated in the meeting remotely.
While the minutes must include a summary of the discussions on each subject, a
transcript is not required. No vote taken by a public body, either in an open or in an
executive session, shall be by secret ballot. All votes taken in executive session must be
by roll call and the results recorded in the minutes. While public bodies must identify in
the minutes all documents and exhibits used at a meeting and must retain them in
accordance with the Secretary of the Commonwealth’s records retention schedule,
these documents and exhibits needn’t be attached to or physically stored with the
minutes.
Minutes, and all documents and exhibits used, are public records and a part of
the official record of the meeting. Records may be subject to disclosure under either
the Open Meeting Law or Public Records Law. The State and Municipal Record
Retention Schedules are available through the Secretary of the Commonwealth’s
website at: http://www.sec.state.ma.us/arc/arcrmu/rmuidx.htm.
Open Session Meeting Records
The Open Meeting Law requires public bodies to create and approve minutes in
a timely manner. A “timely manner” is considered to be within the next three public
body meetings or 30 days from the date of the meeting, whichever is later, unless the
public body can show good cause for further delay. The Attorney General encourages
minutes to be approved at a public body’s next meeting whenever possible. The law
requires that existing minutes be made available to the public within ten days of a
request, whether they have been approved or remain in draft form. Materials or other
exhibits used by the public body in an open meeting must also be made available to the
public within ten days of a request.
There are two exemptions to the open session records disclosure requirement:
1) materials (other than those that were created by members of the public body for the
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purpose of the evaluation) used in a performance evaluation of an individual bearing on
his professional competence, and 2) materials (other than any résumé submitted by an
applicant, which is subject to disclosure) used in deliberations about employment or
appointment of individuals, including applications and supporting materials. Documents
created by members of the public body for the purpose of performing an evaluation are
subject to disclosure. This applies to both individual evaluations and evaluation
compilations, provided the documents were created by members of the public body for
the purpose of the evaluation.
Executive Session Meeting Records
Public bodies are not required to disclose the minutes, notes, or other materials
used in an executive session if the disclosure of these records may defeat the lawful
purposes of the executive session. Once disclosure would no longer defeat the
purposes of the executive session, however, minutes and other records from that
executive session must be disclosed unless they fall within an exemption to the Public
Records Law, G.L. c. 4, § 7, cl. 26, or the attorney-client privilege applies. Public bodies
are also required to periodically review their executive session minutes to determine
whether continued non-disclosure is warranted. These determinations must be
included in the minutes of the body’s next meeting.
A public body must respond to a request to inspect or copy executive session
minutes within ten days of the request. If the public body has determined, prior to the
request, that the requested executive session minutes may be released, it must make
those minutes available to the requestor at that time. If the body previously
determined that executive session minutes should remain confidential because
publication would defeat the lawful purposes of the executive session, it should respond
by stating the reason the minutes continue to be withheld. And if, at the time of a
request, the public body has not conducted a review of the minutes to determine
whether continued nondisclosure is warranted, the body must perform such a review
and release the minutes, if appropriate, no later than its next meeting or within 30 days,
whichever occurs first. In such circumstances, the body should still respond to the
request within ten days, notifying the requestor that it is conducting this review.
Open Meeting Law Complaints
What is the Attorney General’s role in enforcing the Open Meeting Law?
The Attorney General’s Division of Open Government is responsible for enforcing
the Open Meeting Law. The Attorney General has the authority to receive and
investigate complaints, bring enforcement actions, issue advisory opinions, and
promulgate regulations.
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The Division of Open Government regularly seeks feedback from the public on
ways in which it can better support public bodies to help them comply with the law’s
requirements. The Division of Open Government offers periodic online and in-person
training on the Open Meeting Law and will respond to requests for guidance and
information from public bodies and the public.
The Division of Open Government will take complaints from members of the
public and will work with public bodies to resolve problems. While any member of the
public may file a complaint with a public body alleging a violation of the Open Meeting
Law, a public body need not, and the Division of Open Government will not, investigate
anonymous complaints.
What is the Open Meeting Law complaint procedure?
Step 1. Filing a Complaint with the Public Body
Individuals who allege a violation of the Open Meeting Law must first file a
complaint with the public body alleged to have violated the OML. The complaint must
be filed within 30 days of the date of the violation, or the date the complainant could
reasonably have known of the violation. The complaint must be filed on a Complaint
Form available on the Attorney General’s website, www.mass.gov/ago/openmeeting.
When filing a complaint with a local public body, the complainant must also file a copy
of the complaint with the municipal clerk.
Step 2. The Public Body’s Response
Upon receipt, the chair of the public body should distribute copies of the
complaint to the members of the public body for their review. The public body has 14
business days from the date of receipt to meet to review the complainant’s allegations,
take remedial action if appropriate, notify the complainant of the remedial action, and
forward a copy of the complaint and description of the remedial action taken to the
complainant. The public body must simultaneously notify the Attorney General that it
has responded to the complainant and provide the Attorney General with a copy of the
response and a description of any remedial action taken. While the public body may
delegate responsibility for responding to the complaint to counsel or another individual,
it must first meet to do so. A public body is not required to respond to unsigned
complaints or complaints not made on the Attorney General’s complaint form.
The public body may request additional information from the complainant
within seven business days of receiving the complaint. The complainant then has ten
business days to respond; the public body will then have an additional ten business days
after receiving the complainant’s response to review the complaint and take remedial
action. The public body may also request an extension of time to respond to the
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complaint. A request for an extension should be made within 14 business days of
receipt of the complaint by the public body. The request for an extension should be
made in writing to the Division of Open Government and should include a copy of the
complaint and state the reason for the requested extension.
Step 3. Filing a Complaint with the Attorney General’s Office
A complaint is ripe for review by the Attorney General 30 days after the
complaint is filed with the public body. This 30-day period is intended to provide a
reasonable opportunity for the complainant and the public body to resolve the initial
complaint. It is important to note that complaints are not automatically treated as filed
for review by the Attorney General upon filing with the public body. A complainant who
has filed a complaint with a public body and seeks further review by the Division of
Open Government must file the complaint with the Attorney General after the 30-day
local review period has elapsed but before 90 days have passed since the date of the
violation or the date that the violation was reasonably discoverable.
When filing the complaint with the Attorney General, the complainant must
include a copy of the original complaint and may include any other materials the
complainant feels are relevant, including an explanation of why the complainant is not
satisfied with the response of the public body. Note, however, that the Attorney
General will not review allegations that were not raised in the initial complaint filed with
the public body. Under most circumstances, complaints filed with the Attorney General,
and any documents submitted with the complaint, will be considered a public record
and will be made available to anyone upon request.
The Attorney General will review the complaint and any remedial action taken by
the public body. The Attorney General may request additional information from both
the complainant and the public body. The Attorney General will seek to resolve
complaints in a reasonable period of time, generally within 90 days of the complaint
becoming ripe for review by our office. The Attorney General may decline to investigate
a complaint that is filed with our office more than 90 days after the date of the alleged
violation.
May a public body request mediation to resolve a complaint?
If a complainant files five complaints with the same public body or within the
same municipality within 12 months, the public body may request mediation upon the
fifth or subsequent complaint in order to resolve the complaint. The public body must
request mediation prior to, or with, its response to the complaint, and will assume the
expense of such mediation. If the parties cannot come to an agreement after
mediation, the public body will have ten business days to respond to the complaint and
its resolution will proceed in the normal course.
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Mediation may occur in open session or in executive session under Purpose 9. In
addition, a public body may designate a representative to participate on behalf of the
public body. If mediation does not resolve the complaint to each party’s satisfaction,
the complainant may file the complaint with the Attorney General. The complaint must
be filed within 30 days of the last joint meeting with the mediator.
The mediator will be chosen by the Attorney General. If the complainant
declines to participate in mediation after a request by the public body, the Attorney
General may decline to review a complaint thereafter filed with our office. A public
body may always request mediation to resolve a complaint, but only mediation
requested upon a fifth or subsequent complaint triggers the requirement that the
complainant participate in the mediation before the Attorney General will review the
complaint.
Any written agreement reached in mediation must be disclosed at the public
body’s next meeting following execution of the agreement and will become a public
record.
When is a violation of the law considered “intentional”?
Upon finding a violation of the Open Meeting Law, the Attorney General may
impose a civil penalty upon a public body of not more than $1,000 for each intentional
violation. G.L. c. 30A, § 23(c)(4). An “intentional violation” is an act or omission by a
public body or public body member in knowing violation of the Open Meeting Law. G.L.
c. 30A, § 18. In determining whether a violation was intentional, the Attorney General
will consider, among other things, whether the public body or public body member 1)
acted with specific intent to violate the law; 2) acted with deliberate ignorance of the
law’s requirements; or 3) had been previously informed by a court decision or advised
by the Attorney General that the conduct at issue violated the Open Meeting Law. 940
CMR 29.02. If a public body or public body member made a good faith attempt at
compliance with the law but was reasonably mistaken about its requirements, its
conduct will not be considered an intentional violation of the Law. G.L. c. 30A, § 23(g);
940 CMR 29.02. A fine will not be imposed where a public body or public body member
acted in good faith compliance with the advice of the public body's legal counsel. G.L.
30A, § 23(g); 940 CMR 29.07.
Will the Attorney General’s Office provide training on the Open
Meeting Law?
The Open Meeting Law directs the Attorney General to create educational
materials and provide training to public bodies to foster awareness of and compliance
with the Open Meeting Law. The Attorney General has established an Open Meeting
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Law website, www.mass.gov/ago/openmeeting, on which government officials and
members of public bodies can find the statute, regulations, FAQs, training materials, the
Attorney General’s determination letters resolving complaints, and other resources.
The Attorney General offers periodic webinars and in-person regional training events for
members of the public and public bodies, in addition to offering a free online training
video.
Contacting the Attorney General
If you have any questions about the Open Meeting Law or anything contained in
this guide, please contact the Attorney General’s Division of Open Government. The
Attorney General also welcomes any comments, feedback, or suggestions you may have
about the Open Meeting Law or this guide.
Division of Open Government
Office of the Attorney General
One Ashburton Place
Boston, MA 02108
Tel: 617-963-2540
www.mass.gov/ago/openmeeting
OpenMeeting@state.ma.us