AG’s Site Now Lets Users Search Open Meeting Rulings By Topic, Location

After taking over enforcement of the Massachusetts Open Meeting Law last year, Attorney General Martha Coakley launched a portion of her website devoted to the new law,www.mass.gov/ago/openmeetings, and later began posting the determinations issued by her office in response to complaints under the law.

Now that site has taken a major step forward in usability by adding an OML Determination Lookup feature. Before, you could only browse determinations by name of case. That told you nothing about the issue involved in the case. Now, the site lets you search for key terms or phrases or by actions ordered. You can also search by city or town, county, or public body.

20 Mass. Newspapers Publish Joint Editorial Today Endorsing Stronger Public Records, Open Meetings Laws

Something extraordinary happened today on the editorial pages of Massachusetts daily newspapers. More than 20 of the state’s newspapers agreed to jointly run an editorial endorsing reforms to the public records and open meetings laws that would help bring about increased government transparency.

The editorials came about with the support (non-financial) of the American Civil Liberties Union, Common Cause, the New England First Amendment Coalition, the Massachusetts Newspaper Publishers Association and the New England Newspaper & Press Association, all of whom endorse these reforms.

Here are links to the editorials in the participating papers:

AG to Hold Hearing on Proposed Regs to Allow Remote Participation in Public Meetings

The Attorney General will hold a public hearing tomorrow, Sept. 6, on proposed regulations that would allow members of public boards and commissions to participate in meetings remotely under certain circumstances.

The proposed regs would allow a member to participate remotely only for:

  • Personal illness.
  • Personal disability.
  • Emergency.
  • Military service.
  • Geographic distance.

The regs would require that a quorum be physically present at the meeting location and that remote participants be clearly audible to everyone in attendance at the meeting location.

The public hearing on the proposed regs is 4 to 6 p.m. and will be held at One Ashburton Place, 21st Floor, Boston. You can obtain a PDF of the proposed regulations here: Request for Comment on Proposed Regulations.

New Open Meeting Law Commission Sets First Meeting

A representative of the Massachusetts Newspaper Publishers Association will be among those in attendance when the new Massachusetts Open Meeting Law Advisory Commission holds its first meeting this Friday, Sept. 10, at 10 a.m., at the Attorney General’s office in Boston. The AG’s office posted the meeting notice and agenda today.

The five-member commission was created as part of the new open meeting law that took effect July 1. The MNPA is expressly authorized to designate one of the five members. MNPA President Oreste D’Arconte named executive director Robert Ambrogi to fill the seat.

Section 19(c) of the law says:

There shall be an open meeting law advisory commission. The commission shall consist of 5 members, 2 of whom shall be the chairmen of the joint committee on state administration and regulatory oversight, 1 of whom shall be the president of the Massachusetts Municipal Association or his designee, 1 of whom shall be the president of the Massachusetts Newspaper Publishers Association or his designee, and 1 of whom shall be the attorney general or his designee.

The commission shall review issues relative to the open meeting law and shall submit to the attorney general recommendations for changes to the regulations, trainings, and educational initiatives relative to the open meeting law as it deems necessary and appropriate.

The law also provides that the AG is to report to the commission annually on the enforcement of the open meeting law.

SJC to Hear Key Open Meeting Case Monday

An important case interpreting the Massachusetts open meeting law comes up for argument before the Supreme Judicial Court on Monday. The case, District Attorney v. Wayland School Committee, presents the question of whether a school committee violated the law when it met in closed session to discuss the performance evaluation of the school superintendent.

(Note: The MNPA filed an amicus brief in this case in support of the District Attorney.)

The open meeting law requires that all committee meetings be open to the public except those that fall within express exceptions. This case involves the exception that allows a committee to meet in private “to discuss the reputation, character, physical condition or mental health rather than the professional competence of an individual.” That italicized phrase is understood to mean that professional competence cannot be the subject of a closed meeting.

Despite that, the trial judge in this case relied on a separate exception to rule that the closed-door meeting was lawful. That exception allows a private meeting to “conduct strategy sessions in preparation for negotiations with nonunion personnel, to conduct collective bargaining sessions or contract negotiations with nonunion personnel.”

The trial judge reasoned that because the superintendent was compensated pursuant to a written contract, and given that the amount of compensation was to be based, in part, on the evaluation, then the evaluation, itself, was to be considered part of the contract negotiation.

The problem with this reasoning is that it renders meaningless the professional competence exclusion noted above. Professional competence is a nearly universal measure on which employers base employment decisions. If every discussion of professional competence is to be considered a prelude to an employment-related decision, then it could always be discussed in private, under the trial judge’s reasoning.

Interest in the case drew amicus briefs not just from the MNPA, but also from the Mass. Municipal Association, the Mass. Association of School Superintendents, and the Mass. Association of School Committees. You can read the briefs at the SJC’s site and watch Monday’s oral arguments via webcam.

Town’s Unposted Meetings Violated Law

The town of Charlton’s ad hoc Water Search Subcommittee violated the Massachusetts open meeting law when it met in a series of unposted meetings, the Worcester District Attorney’s Office has ruled. According to the Worcester Telegram & Gazette, the meetings came to light after the newspaper filed a public records request for the subcommittee’s minutes. Upon learning of the illegal meetings, the newspaper filed a complaint with the DA.

MNPA Files Open Meeting Reform Bill

South Deerfield Rep. Stephen Kulik has filed an MNPA-backed bill to strengthen the enforcement provisions of the state’s open meeting laws. The bill, which has been docketed as HD 2937, would authorize courts to impose civil fines of $500 on government officials who violate the law and to award attorneys’ fees to citizens who bring actions to enforce the law. Other legislators who have so far signed on as co-sponsors are: Rep. Peter V. Kocot of Northampton, Rep. John W. Scibak of South Hadley, Rep. William M. Strauss of Mattapoisett, Sen. Stephen M. Brewer of Barre, Rep. Jay Barrows of Mansfield, and Rep. David P. Linsky of Natick.

The text of the bill as filed provides:

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Section 23B of Chapter 39 of the General Laws, as appearing in the 2002 Official Edition, is hereby amended by striking the 14th paragraph and inserting in its place the following paragraph:—

The court may impose a civil fine against the governmental body of up to one thousand dollars and a civil fine of up to five hundred dollars against each attending member of the governmental body for each meeting held in violation of this section. The fine shall not be imposed against any member of the governmental body who is recorded in opposition to the government act that is found in violation of the open meeting law. When a court finds that a meeting was held in violation of this section, it shall award reasonable attorney’s fees and costs against such governmental body. In addition, the court may assess reasonable attorney’s fees and costs against such governmental body where the court finds that:

1. after receiving notice of the filing of a complaint authorized by this section, the governmental body opens to the public any meeting or opens to the public the records of any such meeting, and

2. the requested meeting or public record are described in the complaint, and

3. the requested meeting or public record had been requested in writing by the complainant before filing the complaint, and

4. before the complaint was filed, the governmental body or custodian of the record had refused to open to the public the requested meeting or to make the requested public record available to the complainant.

SECTION 2. Section 11A ½ of Chapter 30A, of the General Laws, as appearing in the 2002 Official Edition, is hereby amended by adding thereto as the last paragraph reading as follows:

The court may impose a civil fine against the governmental body of up to one thousand dollars and a civil fine of up to five hundred dollars against each attending member of the governmental body for each meeting held in violation of this section. The fine shall not be imposed against any member of the governmental body who is recorded in opposition to the government act that is found in violation of the open meeting law. When a court holds that a meeting was held in violation of this section, it shall award reasonable attorney’s fees and costs against such governmental body. In addition, the court may assess reasonable attorney’s fees and costs against such governmental body where the count finds that:

1. after receiving notice of the filing of a complaint authorized by this section, the governmental body opens to the public any meeting or opens to the public the records of any such meeting, and

2. the requested meeting or public record are described in the complaint, and

3. the requested meeting or public record had been requested in writing by the complainant before filing the complaint, and

4. before the complaint was filed, the governmental body or custodian of the record had refused to open to the public the requested meeting or to make the requested public record available to the complainant.