Open Meeting Law: Part 1. Introduction/Definitions


Welcome to the Massachusetts Attorney General’s
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 2018. 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 tries to strike a balance
between government accountability/ 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 both 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 Division of Open Government within the
Attorney General’s Office 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 authority to promulgate
regulations to interpret and enforce the law. You can find the Attorney General’s Open
Meeting Law regulations on our website. The Division also provides guidance on the
Open Meeting Law’s requirements through a hotline that the public can call with questions. The hotline number is 617-963-2540. Questions can also be emailed to the Division
at [email protected] We also provide monthly webinars where staff
attorneys speak about the Open Meeting Law and answer questions in real time. 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, along with other educational
guidance such as checklists for the creation of meeting notices and minutes, and answers
to certain frequently asked questions. The Open Meeting Law requires that all public
body members sign a certification form within two weeks of taking an oath of office or,
if no oath is required, before beginning performance of the office. Public body members must certify that they’ve
received copies of the Open Meeting Law, the Open Meeting Law regulations, the Attorney
General’s Open Meeting Law 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; members also certify that they’ve read and understand the consequences for violating
the law. For local public bodies, these materials should
be provided by the municipal clerk, either in digital or paper form. For regional, district, county and state public
bodies, they should be provided by the appointing authority, the executive director, or another
administrator or designee. The certification form, as well as the Guide,
can be found at the Attorney General’s website. The person distributing the materials should
retain the certifications as a public record. The Office of the Attorney General does not
need to receive a copy. A public body member must sign a new Certificate
upon reelection or reappointment to the public body but need not sign a Certificate when
joining a subcommittee. 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 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, that is closed, session. Third, public bodies must create and maintain
accurate minutes for all meetings, including both open and executive sessions. Finally, there’s a complaint process, whereby
a person may file a complaint alleging that a public body violated the Open Meeting Law. We’ll discuss later the ways that Open Meeting
Law complaints can be filed. The Open Meeting Law only applies to public
bodies, and a question we are asked 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, and therefore does not have to comply with the Open Meeting Law, unless that
individual is serving as a member of a public body. Also, note that a public body can be any type
of multiple-member board, regardless of what it’s called. It can be called a committee, a task force,
an ad-hoc committee, or a working group, but if it meets this definition, it is a public
body. Subcommittees are also public bodies. A subcommittee includes any multiple member
board created to advise or make recommendations to a public body. There is a judicially recognized exception
to the definition of public body. This is the Connelly exception, and it was
created in 1991 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 voluntarily creates a body 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 also 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. Not for profit organizations are 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. Finally, groups that do not take any collective
action are not public bodies. For example, focus groups – where a public
official invites all interested persons to attend a meeting and provide feedback on an
issue of concern, but no votes will be taken, or report produced, and there is no required
number of attendees, such groups generally will not be considered public bodies. 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 Massachusetts Gaming Commission, and the
UMass Board of Trustees. 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, such as Republican
and Democratic town committees, 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 those three members are 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
3 members which would be 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. We therefore caution members of public bodies
to avoid email communications except for specific, exempt activities. For instance, members of a public body may
distribute via email or by hand 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. Finally, there is no deliberation where a
public body, such as Board of Selectmen, discusses whether to recess and continue Town Meeting
due to a weather-related or public safety emergency. Discussion must be limited to this narrow
subject, however. 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. Thus, members of a school committee may tour
a new school and take notes for discussion at a subsequent open meeting, but may not
deliberate while on the tour. 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 or Boards of Health. Finally, sessions of Town Meeting, the formal
legislative session of many municipalities, are not meetings subject to the Open Meeting
Law. The Attorney General interprets this exemption
to mean that all communications between Town Meeting members about Town Meeting are exempt
from the requirements of the Open Meeting Law, even if they occur outside of a session
of Town Meeting. Thus, the Division of Open Government will
not investigate Open Meeting Law complaints concerning such discussions.

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