CHANGES TO THE OPEN CHANGES TO THE OPEN MEETING LAWMEETING LAW

Prepared and presented by: Prepared and presented by:

Brian W. Riley, Esq.Brian W. Riley, Esq.

Kopelman and Paige, P.C.Kopelman and Paige, P.C.

Overview of the Overview of the Revised Open Meeting Revised Open Meeting Law [OML]Law [OML] Centralizes oversight and enforcement in Centralizes oversight and enforcement in

Attorney General’s OfficeAttorney General’s Office

Alters important statutory definitionsAlters important statutory definitions

Imposes new requirements for and additional Imposes new requirements for and additional regulation of notices, minutes, executive regulation of notices, minutes, executive sessions, exemptions, member participation sessions, exemptions, member participation and related administrative mattersand related administrative matters

Significantly changes enforcement processSignificantly changes enforcement process

Chapter 28 of the Acts Chapter 28 of the Acts of 2009of 2009 OML portions effective July 1, 2010OML portions effective July 1, 2010

Repealed G.L. c.39, Repealed G.L. c.39, §§23A-23C§§23A-23C

Revised OML found at Revised OML found at

G.L. c.30A, §§18-25G.L. c.30A, §§18-25

Regulations and guidance from AG’s Regulations and guidance from AG’s Office Office

Alters Important Alters Important Statutory DefinitionsStatutory Definitions

DeliberationDeliberation

MeetingMeeting

Governmental bodyGovernmental body

DeliberationDeliberation

““[A]n oral or written communication through [A]n oral or written communication through any medium, including electronic mail, any medium, including electronic mail, between or among a quorum of a public body between or among a quorum of a public body on any public business within its on any public business within its jurisdiction…,” with certain express jurisdiction…,” with certain express exceptions.exceptions.

Deliberation (cont.)Deliberation (cont.)

Specifically includes e-mail Specifically includes e-mail communicationscommunications

Provided that no opinions of governmental Provided that no opinions of governmental body are expressed, specifically body are expressed, specifically excludesexcludes::– Distribution of meeting agendaDistribution of meeting agenda– Scheduling informationScheduling information– Distribution of other procedural meeting Distribution of other procedural meeting

materials, reports or documents that materials, reports or documents that may be discussedmay be discussed

MeetingMeeting

““[A] deliberation by a public body with [A] deliberation by a public body with respect to any matter within the body’s respect to any matter within the body’s jurisdiction…,” with certain express jurisdiction…,” with certain express exceptions.exceptions.

Meeting (cont.)Meeting (cont.)

Specifically excludes:Specifically excludes: --A --A quorum at an on-site inspectionquorum at an on-site inspection

– Attendance by a quorum at a conference Attendance by a quorum at a conference or training program or a media, social or or training program or a media, social or other eventother event

– Attendance by a quorum at meeting of Attendance by a quorum at meeting of another governmental body another governmental body

– A meeting of a quasi-judicial board held for A meeting of a quasi-judicial board held for the sole purpose of making a decision in the sole purpose of making a decision in an adjudicatory proceeding (*state boards an adjudicatory proceeding (*state boards only*)only*)

Governmental body/ Governmental body/ Public bodyPublic body Now known as “Public body”Now known as “Public body”

““[A] multiple-member board, commission, [A] multiple-member board, commission, committee or subcommittee within the committee or subcommittee within the executive or legislative branch or within any executive or legislative branch or within any county, district, city, region or town, however county, district, city, region or town, however created, elected, appointed or otherwise created, elected, appointed or otherwise constituted, established to serve a public constituted, established to serve a public purpose; …and provided further, that a purpose; …and provided further, that a subcommittee shall include any multiple-subcommittee shall include any multiple-member body created to advise or make member body created to advise or make recommendations to a public body.”recommendations to a public body.”

Public body (cont.)Public body (cont.)

““Governmental body” now “Public body”Governmental body” now “Public body”

Includes any multiple-member body Includes any multiple-member body “within” any town, as compared to a “within” any town, as compared to a governmental body “of” any towngovernmental body “of” any town

Includes subcommittees, which include Includes subcommittees, which include any multiple-member body created to any multiple-member body created to advise or make recommendations to a advise or make recommendations to a public bodypublic body

New Requirements and New Requirements and Additional RegulationAdditional Regulation NoticeNotice Minutes and documents used at Minutes and documents used at

meetingsmeetings Executive sessionsExecutive sessions Exemptions to OMLExemptions to OML Participation by membersParticipation by members Related administrative mattersRelated administrative matters

NoticeNotice

Shall include “a listing of topics that the Shall include “a listing of topics that the chair reasonably anticipates will be chair reasonably anticipates will be discussed at the meeting”discussed at the meeting”

Must be posted in manner conspicuously Must be posted in manner conspicuously visible to the public visible to the public at all hoursat all hours in or on in or on municipal building housing clerk’s officemunicipal building housing clerk’s office

Requires 48 hours in advance of meeting Requires 48 hours in advance of meeting excluding excluding SaturdaysSaturdays, Sundays and legal , Sundays and legal holidaysholidays

MinutesMinutes

Must include:Must include:– A summary of the discussions on each A summary of the discussions on each

subjectsubject– The decisions made and actions taken, The decisions made and actions taken,

including a record of all votesincluding a record of all votes– A list of documents and other exhibits A list of documents and other exhibits

used by the body at the meetingused by the body at the meeting– The documents and other exhibits used The documents and other exhibits used

are “official record” of meeting, in addition are “official record” of meeting, in addition to minutes to minutes

Minutes (cont.)Minutes (cont.)

Open session minutes shall not be Open session minutes shall not be withheld under any of the exemptions withheld under any of the exemptions to the Public Records Law, except:to the Public Records Law, except:– the following materials shall be exempt as the following materials shall be exempt as

personnel information: personnel information: materials used in a performance evaluation of an materials used in a performance evaluation of an

individual bearing on his professional individual bearing on his professional competence that were not created by members competence that were not created by members of the body for purposes of the evaluation; andof the body for purposes of the evaluation; and

materials used in deliberations about materials used in deliberations about employment or appointment of individuals, employment or appointment of individuals, including applications and supporting materials including applications and supporting materials and excluding resumesand excluding resumes

Executive Session Executive Session MinutesMinutes Must be disclosed when purpose of Must be disclosed when purpose of

exemption has been met, unless exemption has been met, unless otherwise protectedotherwise protected

Must be reviewed periodically by chair or Must be reviewed periodically by chair or public bodypublic body

Must be provided within 10 days in Must be provided within 10 days in response to request, unless review not response to request, unless review not yet undertaken (then by board’s next yet undertaken (then by board’s next meeting or 30 days, whichever occurs meeting or 30 days, whichever occurs first)first)

New Executive Session New Executive Session RequirementRequirement

Before going into the executive Before going into the executive session, the chair must state the session, the chair must state the purpose for the session, “stating purpose for the session, “stating all subjects that may be revealed all subjects that may be revealed without compromising the without compromising the purpose for which the executive purpose for which the executive session was called”session was called”

Exemptions to OML – Exemptions to OML – Executive SessionsExecutive Sessions Combines former exemptions (1) and (2), Combines former exemptions (1) and (2),

as follows:as follows:– ““(1) To discuss the reputation, character, (1) To discuss the reputation, character,

physical condition or mental health, rather physical condition or mental health, rather than professional competence, of an than professional competence, of an individual, or to discuss the discipline or individual, or to discuss the discipline or dismissal of, or complaints or charges dismissal of, or complaints or charges brought against, a public officer, employee, brought against, a public officer, employee, staff member or individual. …”staff member or individual. …”

Adds right of individual to create Adds right of individual to create independent record of session at own independent record of session at own costcost

Exemptions (cont.)Exemptions (cont.)

Divides former exemption (3) into two Divides former exemption (3) into two exemptions, as follows:exemptions, as follows:– ““2. To conduct strategy sessions in preparation for 2. To conduct strategy sessions in preparation for

negotiations with nonunion personnel or to conduct negotiations with nonunion personnel or to conduct collective bargaining sessions or contract collective bargaining sessions or contract negotiations with nonunion personnel;negotiations with nonunion personnel;

– 3. To discuss strategy with respect to collective 3. To discuss strategy with respect to collective bargaining or litigation if an open meeting may bargaining or litigation if an open meeting may have a detrimental effect on the bargaining or have a detrimental effect on the bargaining or litigating position of the public body litigating position of the public body and the chair and the chair so declaresso declares …” …”

Adds requirement that chair declare Adds requirement that chair declare “detrimental effect” for certain exemptions“detrimental effect” for certain exemptions

Administrative MattersAdministrative Matters

Allows remote participation in meetings Allows remote participation in meetings IF authorized by AG and chair and IF authorized by AG and chair and quorum physically presentquorum physically present

Requires public statement by chair Requires public statement by chair regarding video or audio recordingsregarding video or audio recordings

Requires permission of chair to address Requires permission of chair to address meetingmeeting

Certification of receipt of OML, Certification of receipt of OML, regulations and AG educational regulations and AG educational materials; held by appointing authority, materials; held by appointing authority, city/town clerk. Within 2 weeks of city/town clerk. Within 2 weeks of taking office. taking office.

Role of the Attorney Role of the Attorney General’s OfficeGeneral’s Office Oversight and enforcement of OMLOversight and enforcement of OML

May void action taken in violation of May void action taken in violation of OMLOML

May reinstate employee if violation May reinstate employee if violation found regarding employment actionfound regarding employment action

Promulgate rules and regulations, Promulgate rules and regulations, interpret OML and issue written letter interpret OML and issue written letter rulings or advisory opinionsrulings or advisory opinions

Enforcement ProcessEnforcement Process

Filing ComplaintFiling Complaint– Must first file written complaint with Must first file written complaint with

public bodypublic body, within 30 days of alleged , within 30 days of alleged violationviolation

– Public body must forward complaint to Public body must forward complaint to AG within 14 days of receipt and inform AG within 14 days of receipt and inform AG of any remedial action takenAG of any remedial action taken

– Not less than 30 days after date Not less than 30 days after date complaint was filed with public body, complaint was filed with public body, complainant may file a complaint with complainant may file a complaint with AGAG

Enforcement (cont.)Enforcement (cont.)

Review by the Attorney GeneralReview by the Attorney General– Whether there has been a violationWhether there has been a violation– Must hold a hearing before imposing Must hold a hearing before imposing

civil penaltycivil penalty– If a violation is determined to have If a violation is determined to have

occurred, the AG must determine occurred, the AG must determine whether the public body, or one or whether the public body, or one or more of its members, or both, are more of its members, or both, are responsible, and whether the responsible, and whether the violation was intentional or violation was intentional or unintentionalunintentional

Enforcement (cont.)Enforcement (cont.)

Upon the finding of a violation, the AG may Upon the finding of a violation, the AG may issue an order to:issue an order to:– Compel immediate and future compliance with OML;Compel immediate and future compliance with OML;– Compel attendance at authorized training session;Compel attendance at authorized training session;– Nullify in whole or in part any action taken at Nullify in whole or in part any action taken at

meeting;meeting;– Impose civil penalty upon public body of not more Impose civil penalty upon public body of not more

than $1,000 for each than $1,000 for each intentionalintentional violation; violation;– Reinstate employee without loss of compensation, Reinstate employee without loss of compensation,

seniority, tenure or other benefits;seniority, tenure or other benefits;– Compel that minutes, records or other materials be Compel that minutes, records or other materials be

made public; ormade public; or– Prescribe other appropriate actionPrescribe other appropriate action

Enforcement (cont.)Enforcement (cont.)

Judicial Review of AG OrderJudicial Review of AG Order– A public body or any member A public body or any member

aggrieved by order may file aggrieved by order may file certiorari action in Superior Court certiorari action in Superior Court within 21 days of receipt of orderwithin 21 days of receipt of order

– AG order stayed pending judicial AG order stayed pending judicial review review

– If AG order nullifies action, public If AG order nullifies action, public body shall not implement actionbody shall not implement action

Enforcement (cont.)Enforcement (cont.)

ComplianceCompliance– AG may file action in Superior Court AG may file action in Superior Court

to compel compliance with order or to compel compliance with order or payment of civil penaltypayment of civil penalty

Alternative procedureAlternative procedure– AG or 3 or more registered voters AG or 3 or more registered voters

may initiate civil action in Superior may initiate civil action in Superior Court to enforce OMLCourt to enforce OML

Enforcement (cont.)Enforcement (cont.)

Burden of proofBurden of proof– Burden on public body to show by a Burden on public body to show by a

preponderance of the evidence that preponderance of the evidence that the action complained of was in the action complained of was in accordance with and authorized by accordance with and authorized by OMLOML

Advice of counsel defense Advice of counsel defense – Defense to imposition of civil penalty Defense to imposition of civil penalty

that public body acted in good faith that public body acted in good faith compliance on advice of legal counselcompliance on advice of legal counsel

Contact InformationContact Information

Brian W. Riley, Esq.Brian W. Riley, Esq.

Kopelman and Paige, P.C.Kopelman and Paige, P.C.

101 Arch Street, 12101 Arch Street, 12thth Floor Floor

Boston, MA 02110Boston, MA 02110

(617) 556-0007(617) 556-0007briley@k-plaw.comhttp://www.k-plaw.com