Intro to Mass Open Meeting Law
Massachusetts Open Meeting Law, in its simplest terms, is a law that ensures that the public has an opportunity to observe the business operations of government, including the administration of budgets and the handling of land use issues. Though there have been open meeting laws enacted since the late 19th century, the Massachusetts version has a long history and has recently become more prominent in the Commonwealth. Furthermore, these laws are designed to keep state and local government transparent, which in turn impacts the residents and citizens within these municipalities.
In Massachusetts, the Open Meeting Law was enacted in 1957, Deval Patrick was the Governor , and most meetings were held in a government office. Since then, as you might imagine, Massachusetts has seen a number of changes warranting adjustments to the law. E-mail emerged, housing prices skyrocketed, urban areas underwent massive facelifts, and the Internet became the predominant source of information for Bostonians. According to the law, the purpose of the Open Meeting Law was to "protect the public from secret deals and bargains … preserve the subordinate role of elected representatives." Worded another way, the law was designed to ensure that governing bodies operate in a tangible way so that taxpayers are aware of how their money is being spent.
Mass OML Requirements
The requirements and provisions of the Massachusetts Open Meeting Law are essentially as follows:
Entities Subject to the Open Meeting Law
The Open Meeting Law applies to public bodies, which include departments, boards, and commissions of the state (and their constituent agencies), as well as any governmental body serving a state or municipal function. It further applies to any department, board or commission of a county, city, town, or regional school district that is established by charter, by local ordinance or bylaw or other authorizing statute. The law applies to a "deliberation" or any "board, commission, department or other public body" elected by the voters or appointed by an elected body, such as a board of selectmen.
Definition of a "Meeting" under the Open Meeting Law
The Open Meeting Law defines a "meeting" as "any deliberation by a quorum of a public body with respect to any matter within the body’s jurisdiction." A "deliberation" includes, but is not limited to:
Exemptions to the Definition of a "Meeting"
The following are explicitly excluded from the definition of a "meeting:"
A meeting where only members of a single board discuss their own committee reports.
Transparency and Accessibility
Under Massachusetts Open Meeting Law, public bodies must ensure not only their accessibility to the public, but also their transparency. For a public meeting to be lawful under the OML, it must be properly noticed to the public. The notice requirements of the OML and public meeting processes are intended to provide the public an opportunity to attend the meeting. The notice requirements are set forth in 940 C.M.R. 29.5 and generally include information about the date and time of the meeting, the topic, the meeting location, whether it will be recorded, whether it can be attended by remote means, or whether it will be appointed to take up the business of attending authorities. Failure to take these steps prior to the public meeting requires that the matter be rescheduled and another notice issued.
Access to meeting minutes and records is also an important part of the transparency and accessibility of public meetings. Once a public body meets, it must keep minutes of the meeting. Minutes must be open to public inspection and must be provided to any person who requests them within 10 days of the request, or within 30 days if recording the minutes would necessitate a lengthy review of materials. The OML requires public bodies to keep minutes of all meetings and maintains a presumption that the public has a right of access to such minutes. This means that public bodies must explicitly document the votes taken in a public meeting or subject to a violation of the OML. Note that under the OML, you cannot simply give copies of meeting minutes to people attending the meeting. Instead, you must give those minutes to people who follow the proper procedures to request such minutes.
The Office of the Attorney General has issued helpful guidance on the OML. For example, it has concluded that the new definitions of "meeting" and "deliberation" parts of the law could allow for serial communications among a quorum of the decision-makers to be in violation of the OML. Serial communications may violate the OML even if those communications do not result in a decision on the topic discussed, because the communications may be related to an eventual decision.
Closed Meetings and Exemptions
At times, public bodies may need to hold a portion of a meeting in executive session. With some limited exceptions, meetings must be open to the public. The purpose of an executive session is to protect certain confidential information, such as the reputation of individuals, the reputation of the public body, and its bargaining position with other parties. An executive session may only be held after the following two conditions are satisfied: The vote to enter into executive session must state the purpose for which the executive session is to be called, and includes a reference to the statute(s). The vote and each of the votes (i.e., who voted in favor and against) should be recorded in the meeting minutes. The chairperson must also state in the meeting minutes whether all members will be allowed to participate if the remote participation provisions of the OML is being used. Common reasons upon which executive sessions are held include the following: Each of the above-mentioned purposes may only be satisfied with at least two-thirds of the members of the public body voting in favor of the motion.
Enforcement and Compliance
A violation of the Open Meeting Law can result in a civil penalty. The AG or any person may bring a lawsuit seeking a civil penalty from a public body or any member of a public body who knowingly violated or knowingly participated in a violation of this chapter. A violation occurs when a member intentionally meets in person or by means other than a telephone with a quorum of the public body for the purpose of discussing the business of the public body, knowing that such meeting is in violation of this chapter. The penalty for such a violation shall be $500 per violation to be paid to the Commonwealth.
The Attorney General must initiate an enforcement action in Land Court or Superior Court for a civil penalty or equitable relief after receiving a petition from any person or upon his or her own initiative. In lieu of obtaining a civil penalty or equitable relief, the Attorney General may issue an enforcement order that specifies the actions that must be taken to comply with the statute. The Attorney General may also issue an enforcement order if it appears that:
If, after a hearing, the court finds that a violation has occurred, it may issue an enforcement order or civil penalty. Further , a Land Court judge, upon petition of the AG, may rescind the minutes and executive session minutes of the public body in the event that they were not made available as required by the statute.
When a legislator or legislative staff member attends a meeting that is properly posted and that is attended by a quorum of the public body and the legislator or his/her staff member participates directly in the deliberation of the public body, the AG has found that such attendance and participation does not constitute a violation.
If a public body or member of a public body makes a videotape or audiotape recording of an open session of a meeting and does not make that recording or a copy thereof available to the public unless an exemption applies under the public records law, such public body is subject to a civil fine of $1,000 for each such violation.
Any member of a public body may anonymously file a complaint regarding an alleged violation of the Open Meeting Law. As well, any person may file with the Attorney General a complaint of an alleged violation of the Open Meeting Law, but only if he or she has first made written notice of the alleged violation to the public body as required by the statute.
Legal Developments and Recent Amendments
As previously mentioned, the OML was amended as recently as 2020. A major change that took place in the 2020 amendment was that it formally requires determination of a majority vote to be taken in open session, which now codifies what agencies have been doing for years. The 2020 amendment also requires that each governmental body, in addition to its designated chief executive officer designate a municipal employee to serve as the Open Meeting Law Coordinator. Going forward, even though enforcement of the OML will now lie with the Attorney General’s OML Division, municipalities will still be the first point of contact for managing inquiries or complaints pursuant to the OML. The amendments also clarify that only minutes of open sessions must be made available in unedited form to all members of the public. If the public body charges for the minutes, then a fee schedule must be made available to the public. In a case before the Massachusetts Supreme Court this year, Petition of North Reading on Behalf of Zoning Board of Appeals, the court decided that recording of executive session meetings does not violate the OML. The Court ruled that the OML only requires the body to assess whether a meeting in open session would have been detrimental to the purposes of the executive session, not whether the recording was itself detrimental to those purposes.
Public Body Best Practices
Ensuring compliance with the open meeting law following the disaster that has overtaken our world will be of paramount importance for all municipal bodies. The loss of public trust in government is a grave concern. To that end, the Attorney General’s website includes the following recommendations, as well as other best practices: These best practices are intended to help local government bodies ensure transparency, public access, and public trust in the governing process. • Establish a procedure to ensure that each member knows the date, time, and purpose of each meeting and knows whether the member is required to attend in-person or virtually. Verify that the technology necessary for virtual participation is functioning properly. • Provide timely notice/posting of proposed and revised meeting agenda materials and establish a procedure for distribution to the public (e.g., municipal website and other social media platforms). • Establish a procedure for public participation in virtual meetings (e.g., by phone through a dial-in number and/or by offering remote access through videoconference). • Establish a procedure for determining when or whether virtual meetings may be recorded and the process for preserving such recordings. • Consult your Chief of Police regarding security issues and procedures that you may need to follow. • Prior to each meeting, confer with your Town Counsel, if you have one, or the Attorney General’s office to confirm whether the Open Meeting Law’s emergency provisions permit the meeting to be held virtually or in a constitutionally permissible manner.
Final Thoughts and Resources
In conclusion, the Open Meeting Law is a crucial component of Massachusetts’ commitment to transparency and good governance. While the specifics of the law can be complex and subject to interpretation, the purpose of the law, like all good laws, is clear: to promote openness and public participation in government .
As with any legal matter, it is always advisable to contact an attorney experienced in the area to answer your questions, guide you through the process, and make sure your rights are protected.
For more information on the Massachusetts Open Meeting Law, you can call the Attorney General’s office at 617-727-2200, visit their website at www.mass.gov, read the Open Meeting Law website FAQ, or continue to follow our blog for future updates.