All underlined textin this presentationis drawn from Emergency Regulations, which are still subject to revision by the Attorney General before becoming final regulations.In Sum: the underlined text is subject to change after the notice & comment period, scheduled to end at 5:00 p.m. on August 18, 2010. .
Open Meeting Law M.G.L. c. 30A §§ 18-25 Presentation Outline: Definitions Before an Open Meeting During an Open Meeting Executive Session After the Open Meeting Enforcement Summary .
Today’s Question What can you do to ensure the Public Body’s deliberations are OPEN to the public Before, During, & After a meeting?
Definitions Under OML Meetings & Deliberations
What is a Meeting? The Law’s Definition: A deliberation by a public body with respect to any matter within the body’s jurisdiction .
Definition: Deliberation Oral, written or email communications On public business Between or among a quorum of a public body Quorum: Majority of members Subcommittees: included in definition of public body (multiple-member body created to advise or make recommendations) .
Gathering is Not a Meeting IF: The Members Do Not Deliberate AND The gathering is An on-site inspection of a project or program A public or private gathering, including a conference or training program or a media, social, or other event The attendance by a quorum at a meeting of another public body that complied with open meeting law If the visiting members communicate only by open participation in the meeting on those matters discussed by the host body A meeting of a quasi-judicial board or commissionheld for the sole purpose of making a decision required in an adjudicatory proceeding brought before it A session of a town meeting .
Special Exclusions Distributing meeting agenda Distributing schedule Info Distributing reports or documents that may be discussed at the meeting Deciding scheduling .
Recent SJC Guidance The Technicalities of “Deliberation” • May not avoid OML requirements to defeat fundamental purpose of the law. • Governmental bodies may not circumvent…the open meeting law by conducting deliberations via private messages, whether • electronically • in person • over the telephone • or in any other form .
Before the Open Meeting Posting Notice
Notice Must Include: Date & Time Of the meeting Of the posting Place Topics the chair anticipates discussing: with sufficient specificity to reasonably advise the public of the issues to be discussed at the meeting .
Posting Requirements Hard Copy Attorney General May Approve ElectronicFormat 48 hours prior to meeting Excluding Saturdays, Sundays & legal holidays Emergency Exception: sudden, generally unexpected occurrence or set of circumstances demanding immediate action. Post as soon as reasonably possible Conspicuous, Legible, & Easily- Understandable Format .
Where to Post Notice Local Public Body: File with municipal clerk, and post where conspicuously visible to the public at all hours inside or on clerk’s office’s building County Public Body: File in the office of the county commissioners and post where commissioners designate Regional or District Public Body: File and post in each city or town within the district in the same manner as local bodies in that city or town .
Emergency Regs: Notice • Municipal Clerk files written notice with Attorney General of the municipality’s posting method and any changes to it • If Posting Is Not Visible at All Hours: post description of alternative method at main and handicapped entrances to municipal clerk’s building
Emergency Regs: 1st Alternative • Website: • Post notice on municipal website AND post notice or provide internet access in an alternate municipal building where notice is accessible at all hours
Emergency Regs: 2nd Alternative • Cable T.V.: • Post notice of meetings on cable television AND post notice or provide cable television access in an alternate municipal building where the notice is accessible at all hours
Emergency Regs: 3rd Alternative • Newspaper: • Post notice in a newspaper of general circulation in the municipality AND post notice or a copy of the newspaper containing notice at an alternate municipal building where the notice is accessible at all hours
Emergency Regs: 4th Alternative • Computer Monitor: • Place a computer monitor or electronic or physical bulletin board displaying meeting notices on or in a door, window, or near the entrance of the municipal building in which the clerk’s office is located in such a manner as to be visible to the public from outside the building
Emergency Regs: 5th Alternative • Audio Recording: • Provide an audio recording of meeting notices, available to the public by telephone at all hours
During the Open Meeting Access & Participation
During the Open Meeting Remote participation if A.G. approves it Recording (chair must inform attendees of any recordings) Addressing the meeting (requires permission of chair) .
Executive Session Purposes & Procedures
10 Purposes: M.G.L. c. 30A § 21(a) § 21(a)(1): To discuss an individual, public officer, employee or staff member’s Reputation Character Physical condition, or Mental health Discipline or dismissal, complaints or charges against the individual .
Discussing Individuals Open Session Professional competence At individual’s request Executive Session Reputation, character, physical condition, mental health Discipline or dismissal, complaints or charges against, employee .
Performance Evaluations • New Definition of Personnel Information Excludes Materials Used in a Performance Evaluation: • Bearing on an individual’s professional competence • If created by members of the public body • For the purposes of the evaluation .
Evaluations Open to Scrutiny • Simply put, under the new law: • The public may access any evaluations created by members of the public body • The public is allowed to scrutinize the board’s judgment of the people it evaluates .
Individual’s Rights in Executive Session To receive written notice at least 48 hours prior to executive session To be present To speak on his own behalf To create an independent record by audio recording or transcription To have Counsel or Representative present for purpose of advising (not for participation) .
10 Purposes: (cont’d) • § 21(a)(2): Strategy session for negotiations, collective bargaining sessions, or contract negotiations with nonunion personnel • § 21(a)(3): Strategy session respecting collective bargaining or litigation if an open meeting will hurt Committee’s bargaining or litigating position AND the chair so declares • § 21(a)(4):Security personnel or device deployment or strategy . .
10 Purposes: (cont’d) • § 21(a)(5):Investigate charges of criminal misconduct or consider filing criminal complaints • § 21(a)(6): Consider purchase, exchange, lease or value of real estate if open discussion would hurt Committee’s negotiating position • § 21(a)(7): Comply with any general law, special law, or federal grant-in-aid requirements .
10 Purposes: (cont’d) • § 21(a)(8):Consider or interview applicants by a preliminary screening committee • If chair declares an open meeting will have a detrimental effect in obtaining qualified applicants • Not if applicants have already passed an initial screening committee • § 21(a)(9): Meet or confer with mediator • § 21(a)(10): Discuss trade secrets .
Procedure Convene an open session first Vote to enter executive session Roll call vote Majority of all committee members (regardless of attendance at the meeting) Votes entered into minutes Chair states executive session’s purpose, including everything that may be revealed without compromisingexecutive session’s purpose Chair announces whether open session will reconvene .
After the Open Meeting Minutes & Public Records
Minutes Include: Date, Time, Place Members Present/Absent ListofAll Documents Used at Meeting (Full copies need NOT be part of minutes, but they ARE part of the record and must be kept for public access.) Discussion Summary of Each & Every Topic Record of All Votes Decisions Made & Actions Taken .
After the Open Meeting Make Minutes Available on Request Draft form or approved Including photos, recordings, maps used at meeting Within 10 days of request .
Public Record Includes: Minutes Notes, Recordings, & Other Materials Used to Prepare Minutes All Documents and Exhibits Used at Meeting .
Public Record & Applicants for Hire Materials used in deliberations abouthiring of individuals Applications and supporting materials areexcluded from public record Resumesare includedin the public record .
Indefinitely Withheld from Public: Personnel files Medical files & employee personal materials if disclosure would be an invasion of personal privacy Attorney-client privileged communications Information and records acquired by the Office of the Child Advocate Law Enforcement’s investigatory materials that, if disclosed, would prejudice enforcement of the law .
Executive Session Minutes Same Content Requirement as Open Session Minutes May Withhold Only Until ReleaseNo Longer Defeats the Purpose of the Executive Session Must have been proper executive session: purpose and procedure May be withheld in their entirety .
After the Executive Session Must Respond within 10 days of request Release if the committee has reviewed and minutes are no longer exempt -OR- Review at next committee meeting or in 30 days, whichever is shorter Release entire non-exempt minutes or portions thereof
Enforcement Prosecution & Defense
Enforcing Open Meeting Law • Administrative Decision: decided by A.G. after considering body’s remedial actions • File complaint on OML complaint form with municipal clerk or public body within 30 days • Public body forwards complaint to AG along with description of remedial actions within 14 days unless AG grants an extension. Notify complainant the public body forwarded complaint to AG • AG holds hearing before imposing civil penalty • Superior Court Alternative:3 registered voters or A.G. brings civil action
Remedies • Nullify all or part of any action taken at the meeting • Compel immediate and future compliance • Compel minutes to be made public • Reinstate an employee with back pay • Compel attendance at training session • Impose a civil penalty up to $1,000 for each intentional violation • Other appropriate action
Enforcing Open Meeting Law • Defense: • after full disclosure • the public body acted in good faith compliance • with advice of the public body’s legal counsel.
Summary Quick Review
SummaryBefore the Open Meeting Meeting Doesn’t include: distributing agenda, schedules, or documents that may be discussed at the meeting Notice must be posted 48 hours prior to meeting & must include: date, time, place, & topics the chair anticipates discussing Exception: EMERGENCY .
SummaryDuring the Open Meeting Deliberations of the public body must be open to the public. The public does not have a right to participate at will The public must be able to know what happened There are specified purposes for executive session Must follow proper procedure to enter executive session .
SummaryAfter the Open Meeting Minutes ofOpen Sessions & Executive Sessions must be equally thorough Include date, time, place, members present/absent, list of documents used at meeting, discussion summary of every topic, decisions made & actions taken, record of all votes .
Summary After the Open Meeting Entirety of a Meeting’s Record: minutes, notes, recordings, other materials used to prepare minutes, & all documents and exhibits used at meeting Respond to all Public Records Requests under Open Meeting Law within 10 days .
SummaryAfter the Closed Meeting Request for Executive Session Minutes: Release upon committee’s review and determination the minutes are no longer exempt .