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Welcome to the Massachusetts Attorney General’s web training on the Open Meeting Law. During
this training, we’ll explain the requirements of the Open Meeting Law so that you as a member
of the public, the press, or a public body can understand and follow the law. Please
note that this presentation is current as of March 1, 2012. Please check with the Attorney
General’s office to ensure that a more recent presentation has not been published. You can
do so by visiting the Attorney General’s Open Meeting Law website at www.mass.gov/ago/openmeeting.
This training is divided into 6 parts. You can view the entire training by watching each
part in order, or you can skip to any particular part you’d like to review. The run time
for the entire presentation is approximately one hour.
The Open Meeting Law was revised as part of the Ethics Reform Act of 2009, and the Office
of the Attorney General assumed responsibility for enforcement of the law at all levels of
government on July 1, 2010. The Open Meeting Law tries to strike a balance
between government transparency and government efficiency. The law ensures transparency by
requiring public bodies to post notice of their meetings, conduct deliberations in public
view, and provide public access to their meetings and certain documents.
The law also enables the government to efficiently and effectively manage its operations by allowing
certain deliberations to take place in executive, or closed, session. Finally, the law permits
public bodies to maintain the confidentiality of certain executive session records.
The revised Open Meeting Law created the Division of Open Government within the Attorney General’s
Office. The Division is responsible for educating and training public officials and members
of public bodies on the requirements of the Open Meeting Law. The Division also has the
power to promulgate regulations to interpret and enforce the law. You can find the Attorney
General’s Open Meeting Law regulations on the Attorney General’s website.
The Division also provides guidance on the Open Meeting Law’s requirements through
the Attorney General’s website, as well as through a hotline that the public can call
with questions. The hotline number is 617-963-2540, and questions can also be emailed to the Division
at openmeeting@state.ma.us. Finally, the Division addresses Open Meeting
Law complaints filed against public bodies. The Division investigates complaints, makes
findings and, if necessary, brings enforcement actions. All of the Attorney General’s Open
Meeting Law determinations are available on the Attorney General’s website.
As an alternative to the traditional complaint process, three or more registered voters may
also file an Open Meeting Law complaint against a public body in superior court.
This presentation covers a number of aspects of the Open Meeting Law, however there are
some basic principles that we’d like you to keep in mind. First, whenever a public
body subject to the law holds a meeting, the public must be given proper notice of the
meeting. Second, all meetings must be open and accessible to the public, unless the public
body properly enters into executive, or closed, session.
Third, public bodies must create and maintain accurate minutes for all meetings, including
both open and executive sessions. Fourth, there’s a complaint process, whereby
a person may file a complaint alleging that a public body violated the Open Meeting Law.
This process requires that the complaint be filed first with the public body, and that
the public body have an opportunity to respond and take corrective action if appropriate
before the complaint can be filed with the Attorney General.
Finally, we note that all members of public bodies must sign the Attorney General’s
certification form stating that they’ve received and read the Open Meeting Law, the
Attorney General’s regulations, and the Attorney General’s Open Meeting Law Guide.
All of these materials are available on the Attorney General’s website.
The Open Meeting Law only applies to public bodies, and the question we are asked most
frequently is whether or not an entity is a public body. To make that determination,
the best place to start is with the Open Meeting Law’s definition of the term Public Body.
A public body is defined as a multiple-member board, commission, committee or sub-committee,
however created, elected, appointed, or otherwise constituted, that’s established to serve
a public purpose. This is a very broad definition, but it’s
important to note that a public body must have multiple members. An individual public
official cannot be a public body, therefore, and does not have to comply with the Open
Meeting Law. Also, note that a public body can be any type of multiple-member board,
regardless of what it’s called. It could be a committee, a task force, an ad-hoc committee,
or a working group, but if it meets this definition, it could be a public body.
Subcommittees are also public bodies. A subcommittee is a multiple member board created to advise
or make recommendations to a public body. Now there are several statutory exclusions
to the Open Meeting Law’s definition of public body. The Massachusetts state legislature
and its committees are not public bodies. Bodies of the judicial branch, such as judicial
panels or juries, are also not public bodies. Bodies created by one of the six constitutional
officers solely to advise that constitutional officer are also not public bodies. However,
this applies only to the Governor, the Lt. Governor, the Secretary of State, the Attorney
General, the State Auditor and the Treasurer. In addition, all bodies that are not established
to serve a public purpose are not public bodies for purposes of the Open Meeting Law. For
example, an office committee to plan a retirement party for a colleague will likely not be a
public body. Besides the statutory exclusions, there is
a judicially recognized exception to the definition of public body. This is the Connelly exception,
and it was created by the Supreme Judicial Court in the case of Connelly versus School
Committee of Hanover. The Connelly exception states that where an individual public official
creates a committee to advise that person on a decision that he or she has the sole
authority to make, that committee is not subject to the Open Meeting Law.
In the Connelly case, the superintendent of schools had the sole authority to recommend
a candidate for the position of principal to the school committee for confirmation.
The superintendent decided to create a committee to interview candidates and make recommendations
to him. This committee consisted of members of the public as well as school officials
and even some school committee members. And the Court found that because the committee
was created by the superintendent solely to advise the superintendent, and because the
superintendent could have interviewed and chosen a candidate without creating a committee,
the committee was not a public body and therefore was not subject to the Open Meeting Law.
Note however, that if it had been the school committee that had the power to choose the
new principal, and the school committee decided to create a committee to interview candidates,
the committee would have been a public body subject to the Open Meeting Law.
There are different types of public bodies: State, local, regional, district, and county.
These distinctions matter only for the process of filing meeting notices and authorizing
remote participation. State public bodies include bodies such as
the Open Meeting Law Advisory Commission, the state Board of Library Commissioners,
and the Board of Higher Education. Note also that charter school Boards of Trustees are
considered state public bodies, not local. Local public bodies can include the Board
of Selectmen, School Committee, and Planning Board. The governing board of a local housing
or redevelopment authority is also considered a local public body.
Regional or district public bodies are those with a jurisdiction that covers more than
one municipality. Regional school committees, water commissions, and planning commissions
are all examples of regional or district public bodies.
County public bodies may exist in areas that still have a county government. Boards of
County Commissioners, County Retirement Boards, and a County Charter Review Commission are
some examples of county public bodies.
Now here are some examples of entities that are not public bodies.
At the state level, the legislature is statutorily exempt from the Open Meeting Law. The Judicial
Nominating Commission is also not a public body because it’s a body created to advise
a constitutional officer, namely the Governor. The Massachusetts Municipal Association is
also not a public body because it’s a private, not-for-profit entity.
At the regional level, a regional high school boosters club is also a private organization,
so it’s not considered a public body. At the local level, neighborhood watch associations
and parent-teacher organizations are generally private organizations that are not created
by government, and therefore are not public bodies. Local political groups, Republican
and Democratic town committees, for instance, are political party committees, and are not
subject to the Open Meeting Law.
Once you’ve determined that a group is a public body, the next step in figuring out
whether the Open Meeting Law applies is to look at what the group is doing, specifically
whether it’s deliberating. Deliberation is defined 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.
This is also a very broad definition. It covers any communication, whether in person, over
the phone, or through email, between or among a quorum of a public body. For purposes of
the Open Meeting Law, a quorum is defined as a simple majority of the members of the
body, unless otherwise provided in a general or special law, executive order or other authorizing
provision. Fewer than a quorum of a body’s members
can discuss matters within that body’s jurisdiction without that communication being a deliberation.
So if three members of a seven-member committee, for instance, decide to meet to discuss committee
business, that would not be a deliberation, provided they’re not a subcommittee.
However, public body members should be careful to avoid serial communications between a quorum.
For example, if there’s a five member board, and member A calls member B, then member B
calls member C and relays what he just discussed with member A, this could constitute a deliberation,
because the communication has now reached a quorum. This is a particular problem with
conversations over email that are forwarded from one member to another, or on which a
quorum of the members are copied. Some activities are specifically exempt from
the definition of deliberation. Members of a public body may distribute a meeting agenda,
procedural or scheduling information, and generally that will not constitute deliberation.
Reports or documents to be discussed at a meeting can also be distributed to a quorum
of a public body without constituting deliberation. These exceptions only apply, though, if the
person distributing the agenda, document, or scheduling information doesn’t express
any opinion on matters within the body’s jurisdiction.
For instance, a public body member can email the rest of the members of the public body
a report generated by a consultant to be discussed at the next meeting. However, the distributor
cannot comment in the email the he or she agrees with the report and thinks the body
should approve it at the next meeting.
The next important definition is that of meeting. A “meeting” is a deliberation by a public
body with respect to any matter within the body’s jurisdiction. So, if a quorum of
the members of a public body expect to deliberate, they must hold a meeting and provide notice
to the public. Again, there are statutory exclusions to this
definition. First, an on-site inspection by a quorum of a public body is not considered
a meeting, provided the members do not deliberate. A quorum of a public body may also attend
an event or training, provided they don’t deliberate. So if all the members of the school
committee attend a holiday party, for instance, but they don’t discuss school committee
business, they don’t have to post notice for a meeting.
A quorum of a public body may also attend the meeting of another public body, provided
they don’t deliberate. Members of a public body may participate in the meeting of another
public body if they communicate only by open participation, such as by sitting in the audience
and addressing the public body on the same terms as members of the public, and again,
do not deliberate. If a quorum of a public body wants to deliberate during a meeting
of another public body, then the two bodies should notice and hold a joint meeting.
Meetings of quasi-judicial boards for the sole purpose of making a decision in an adjudicatory
proceeding are also not considered meetings subject to the Open Meeting Law. This exception
only applies to certain state public bodies that conduct adjudicatory proceedings, and
it’s not available to local public bodies, such as Zoning Boards of Appeal.
Finally, sessions of Town Meeting, the formal legislative session of many municipalities,
are not meetings subject to the Open Meeting Law. However, some committees of Town Meeting
may be public bodies subject to the law.