Public Bodies (Updated March 10, 2017)
May a preliminary screening committee, which meets in executive session under purpose 8 to consider candidates for employment or appointment, consist of more than a quorum of the members of the parent body?
No, a preliminary screening committee must consist of fewer than a quorum of the members of the parent body. It may contain additional members who are not members of the parent body. For example, a school committee with seven members may create a subcommittee to conduct a preliminary screening of candidates for superintendent of schools in executive session, and the preliminary screening committee may contain up to three members of the school committee, in addition to several teachers and members of the community.
Is a committee or board created by a public official subject to the Open Meeting Law?
The OML does not apply to committees or boards informally appointed by individual officials to carry out duties that are assigned to such officials. Accordingly, where a public official creates a committee to advise that public official on a decision that he or she has sole responsibility for the committee or board would not be subject to the Open Meeting Law. See Connelly v. School Committee of Hanover, 409 Mass. 232 (1991), in which the SJC held that a high school principal selection committee appointed by the school superintendent to assist him in choosing candidates was not a governmental body subject to the OML. Because the superintendent could have chosen a school principal entirely on his own without creating the committee to advise him on a candidates, his informal creation of a committee did not subject the body to the Open Meeting Law.
However, where a public official creates a committee because they are required to do so by law, regulation or at the direction of a governing authority such as a City Council or Board of Selectmen, then the committee will likely be subject to the Open Meeting Law.
* Are Special Education Parent Advisory Council (“SEPAC”) groups public bodies subject to the Open Meeting Law?
While a SEPAC itself is generally not a public body subject to the Open Meeting Law, the leadership group may be a public body subject to the Open Meeting Law. Massachusetts law requires that membership in a school’s SEPAC be offered to all parents of children with disabilities and other interested parties. See G.L. c. 71B, § 3. In many cases, the SEPAC establishes or elects a leadership or governing committee. That group of elected or appointed officers will likely constitute a public body under the Open Meeting Law, and it is therefore advisable that such groups comply with the Open Meeting Law’s requirements.
* Are Insurance Advisory Commissions (IACs) and Public Employee Committees (PECs) public bodies subject to the Open Meeting Law?
No, the Attorney General’s Office has determined that IACs created pursuant to G.L. c. 32B, § 3, and PECs created pursuant to G.L. c. 32B, § 19, are not public bodies subject to the Open Meeting Law. See OML 2015-22. Both groups, formed for employee negotiation purposes under the Municipal Health Insurance Reform Act, G.L. c. 32B, serve the interests of public employees, rather than the public, and thus are not public bodies subject to the Open Meeting Law. See G.L. c. 30A, § 18. However, bodies created by a municipality to negotiate with a PEC may be public bodies, though some of their discussions may be appropriate for executive session under G.L. c. 30A, §§ 21(a)(2), (3), the purposes allowing for discussion of strategy with respect to collective bargaining and for conducting collective bargaining sessions.
* Are “Special Commissions” or “Special Legislative Commissions” public bodies subject to the Open Meeting Law?
Yes, although they are subject to different requirements from other public bodies for holding executive sessions and posting meeting notices. While state public bodies designated as “Special Commissions” or “Special Legislative Commissions pursuant to G.L. c. 4, § 2A, (collectively “Special Commissions”) are public bodies and must follow the requirements of the Open Meeting Law, G.L. c. 4, § 2A, contains separate requirements for executive sessions and notice for them:
Private or executive meetings of each special commission shall be open to the public unless a majority of the members of such commission shall vote otherwise. A notice of each such meeting shall be filed with the clerk of either branch, and the notice or a copy thereof shall be publicly posted in the office of such clerk at least twenty-four hours prior to such meeting, excluding Saturdays, Sundays, and legal holidays.
Assuming that a majority of a Special Commission votes to do so, the statute appears to provide that a Special Commission may enter into executive session for any purpose, not just the 10 enumerated in the Open Meeting Law. However, the Special Commission must still follow certain procedural requirements for entering into executive session outlined in G.L. c. 30A, § 21(b), including convening first in open session, publicly announcing whether the Special Commission will return to open session following its executive session, stating all subjects that may be revealed without compromising the purpose for which the executive session was called, and keeping accurate minutes of its executive session.
With respect to meeting notices, Special Commissions must file a meeting notice with the clerk of either the House or Senate. That notice must be published in the office of the House or Senate clerk at least 24 hours prior to the meeting, not including Saturdays, Sundays, and legal holidays. Other than the time and manner of posting, notices must still meet the requirements found at G.L. c. 30A, § 20(b) and 940 CMR 29.03. Although Special Commissions are not required to post notices in the same manner as other state public bodies, in the interest of transparency, the Attorney General recommends that Special Commissions still follow the notice requirements for state public bodies found at G.L. c. 30A, § 20(c), specifically that Special Commissions additionally post their meeting notices to a website at least 48 hours before meetings, not including Saturdays, Sundays, and legal holidays, and that they send a copy of each meeting notice to the Regulations Division of the Secretary of the Commonwealth at firstname.lastname@example.org.
Quasi-Judicial Public Bodies
Which quasi-judicial public bodies fall within exemption (d) to the definition of "meeting" as included in the OML?
The revised Open Meeting Law carves out a specific exception in the definition of "Meeting" for quasi-judicial bodies in certain circumstances. It states that a meeting subject to the Open Meeting Law shall not include "a meeting of a quasi-judicial board or commission held for the sole purpose of making a decision required in an adjudicatory proceeding brought before it." G.L. c. 30A, § 18. However, the OML does not define "quasi-judicial" and there is some confusion as to whether the exemption applies to local "quasi-judicial" bodies, such as zoning boards. It generally does not. The exemption applies only to certain state "quasi-judicial" bodies, and a very limited number of public bodies at other levels of government whose proceedings are specifically subject to G.L. c. 30A.
This conclusion is based on the plain language of the definitions included in the revised Open Meeting Law, G.L. c. 30A, §18, read in harmony with the definition section found at G.L. c. 30A, § 1. That section defines "adjudicatory proceeding" as "a proceeding before an agency in which the legal rights, duties or privileges of specifically named persons are required by constitutional right or by any provision of the General Laws to be determined after opportunity for an agency hearing." G.L. c. 30A, § 1(1) (emphasis added). Chapter 30A, § 1(2), defines "agency" as:
[A]ny department, board, commission, division or authority of the state government or subdivision of any of the foregoing, or official of the state government, authorized by law to make regulations or to conduct adjudicatory proceedings, but does not include the following: the legislative and judicial departments; the governor and council; military or naval boards, commissions or officials; the department of correction; the department of youth services; the parole board; the division of dispute resolution of the division of industrial accidents; the personnel administrator; the civil service commission; and the appellate tax board.
G.L. c. 30A, § 1(2) (emphasis added). Applying these definitions to G.L. c. 30A, § 18, an adjudicatory proceeding of a quasi-judicial board or commission may only be held by an agency, and an agency is an entity of state government. Therefore, exemption (d) to the definition of "meeting" under G.L. c. 30A, § 18, applies almost exclusively to state public bodies holding adjudicatory proceedings under G.L. c. 30A. It may also apply to a very limited number of other public bodies whose governing statutes specifically direct them to hold adjudicatory proceedings in accordance with G.L. c. 30A.
State "quasi-judicial" public bodies are cautioned that they must still follow the requirements of the Open Meeting Law, including posting notice of meetings, retaining minutes, and opening their meetings to the public. The "quasi-judicial" exemption from the definition of "meeting" is limited to meetings held "for the sole purpose of making a decisionrequired in an adjudicatory proceeding brought before it." Id. (emphasis added). The adjudicatory proceeding itself must still be open to the public.
Educational Materials and Certification
Must all members of a public body sign the Attorney General's Open Meeting Law Certification Form, or only newly appointed and elected members of a public body?
All members of any public body must receive the educational materials prepared by the Attorney General upon taking the oath of office, if required or, if no oath is required, then before entering into the performance of the office. The municipal clerk is responsible for providing the educational materials to the members of local public bodies. The appointing authority, executive director or other appropriate administrator is responsible for providing the educational materials to members of regional, county or state public bodies. Within two weeks after receipt of the educational materials, the member shall certify the receipt of the materials on the form provided by the Attorney General and available on the AGO's website. Members of public bodies who do not have defined terms of office are considered qualified for their office every two years, beginning on January 1, 2011.
What materials must be distributed to newly appointed members of public bodies?
Members of public bodies must receive the Open Meeting Law, G.L. c. 30A, §§18-25; the Open Meeting regulations, 940 CMR 29.00; and the Guide to the Open Meeting Law published by the Attorney General. All materials are available on the Attorney General's website.
What is the process for filing an Open Meeting Law complaint?
Individuals who allege a violation of the Open Meeting Law must first file a complaint with the public body alleged to have violated the OML. The complaint must be filed within 30 days of the date of the violation, or the date the complainant could reasonably have known of the violation. The complaint must be filed on a Complaint Form available on the AGO website.
Upon receipt, the Chair of the public body should distribute copies of the complaint to the members of the public body. The public body has 14 business days from the date of receipt to review the complainant's allegations; take remedial action if appropriate; notify the complainant of the remedial action; and forward a copy of the complaint and description of the remedial action taken to the Attorney General's Office. The public body may request additional information from the complainant. The public body may also request an extension of time to respond to the complaint. A request for an extension should be made within 14 business days of receipt of the complaint by the public body. The request for an extension should be made in writing to the Division of Open Government and state the reason for the extension.
A complaint is ripe for review by the Attorney General's Office 30 days after the complaint is filed with the public body. This 30-day period is intended to provide a reasonable opportunity for the complainant and the public body to resolve the initial complaint. It is important to note that complaints are not automatically filed with the Attorney General's Office upon filing with the public body. A complainant seeking further review of the complaint by the Division of Open Government must file the complaint with the Attorney General. When filing the complaint with the Attorney General, the complainant must include a copy of the original complaint and may include any other materials the complainant feels are relevant, including an explanation of why the complainant is not satisfied with the remedial action taken by the public body.
The Attorney General's Office will review the complaint and the remedial action taken by the public body. The Attorney General's Office may request additional information from both the complainant and the public body. The Attorney General's Office will seek to resolve complaints in a reasonable period of time, generally within 90 days of the complaint becoming ripe for review by our office.
Is there a time limit for filing Open Meeting Law complaints?
Yes. Open Meeting Law complaints must be filed with the public body alleged to have committed a violation within 30 days of the date the violation occurred or, if the complainant could not have known about the violation, within 30 days of the date that the violation should reasonably have been discovered. Our office may decline to investigate a complaint that is not filed within the 30-day window. See 940 CMR 29.05(3).
Likewise, if a complainant files a complaint with a public body within 30 days of the date of the alleged violation and is not satisfied with the response of the public body, the complainant may request that our office investigate the complaint by filing a copy of the original complaint and requesting further review by our office. Complaints are ripe for review by our office 30 days after the complaint is first filed with the public body. When filing the complaint with the Attorney General, the complainant must include a copy of the original complaint and may include any other materials the complainant feels are relevant, including an explanation of why the complainant is not satisfied with the remedial action taken by the public body. Requests for our office to investigate the complaint must be filed within 90 days of the date of the alleged violation, unless the public body was granted an extension to respond to a complaint or the complainant demonstrates good cause for the filing delay. See 940 CMR 29.05(6). Our office may decline requests to investigate complaints that are filed with our office more than 90 days after the alleged violation.
May two or more public bodies hold a joint meeting?
Yes, two or more public bodies may hold a joint meeting. However, each public body participating in the meeting must provide notice pursuant to G.L. c. 30A, § 20. The public bodies must provide independent notice of their meetings, or if posting a single notice, must clearly state that each public body will be meeting.
May a public body consider a topic at a meeting that was not listed in the meeting notice?
Yes, if it is a topic that the chair did not reasonably anticipate 48 hours before the meeting. If a meeting topic is proposed after the meeting notice is posted, the public body is encouraged to update its posting to provide the public with as much notice as possible of what subjects will be discussed during a meeting. Although a public body may consider a topic that was not listed in the meeting notice if unanticipated, the Attorney General strongly encourages public bodies to postpone discussion and action on topics that are controversial or may be of particular interest to the public if those topics were not listed in the meeting notice.
How specific must the listing of topics be in the meeting notice?
The listing of topics must contain enough specificity to give the public an understanding of each topic that will be discussed. It is not sufficient to list broad topic categories, such as "Old Business." For example, when the Chair of a Board of Selectmen reasonably anticipates a discussion about on-going traffic improvement projects in town at the next Board meeting, it would be appropriate for the Chair to list that topic in the notice as: "Discussion of Traffic Improvement Projects at the intersection of Main and Pleasant Streets; and at the intersection of Elm and Oak Streets." In some instances, there may be overlap in the posting requirements of the Open Meeting Law and other statutes. In most cases, the information required by the controlling statute will satisfy the Open Meeting Law meeting notice requirements, however for specific questions please contact the Division of Open Government.
May our public body list a section for "New Business" to cover topics which come up for the first time at the meeting in the meeting notice?
Yes, this category may be used for topics that the Chair did not reasonably anticipate for discussion when filing the meeting notice to be posted. Some public bodies use this to category for their public comment or open forum periods. The best practice would be to explicitly state in the notice that the time is being reserved for topics that the chair did not reasonably anticipate would be discussed.
What is the posting method for state public bodies?
State public bodies have different notice posting requirements than local public bodies. A state public body must post its meeting notice on its website or, if none exists, then the website of its parent agency. It must also submit a copy of the meeting notice to the Secretary of State's Regulations Division. It is not necessary to send meeting notices to the Attorney General, however, the public body must notify the Attorney General of the website location where its meeting notices will be posted.
Is it a violation of the Open Meeting Law for the Chair of a public body to neglect to inform other members of a meeting?
No, provided that the meeting is posted in accordance with the requirements of the Open Meeting Law. The Open Meeting Law requires that public bodies post meetings at least 48 hours in advance of the meeting excluding Saturdays, Sundays and legal holidays, but the law does not include a requirement that the Chair notify other members of meetings. The best practice is for the Chair to notify all members of the public body of the meeting sufficiently in advance to allow members to make plans to attend but in no case later than 48 hours in advance of the meeting.
May a public body hold a meeting on a Sunday?
While the Open Meeting Law is silent with regard to holding public meetings on Sundays, the best practice is not to hold public meetings on Sundays or holidays when access to public buildings may be limited and when the public does not normally anticipate the scheduling of a public meeting.
If a public body holds a properly noticed meeting, and decides to continue the meeting until a future date, is the public body required to post another meeting notice?
Yes, the public body must treat the meeting as though it is a new meeting for purposes of notice posting. The public body must post the meeting 48 hours in advance and post a new meeting notice.
Will posting meeting notices on the municipal website fulfill the meeting notice requirements of the Open Meeting Law?
Yes, provided that website is the designated alternate posting method for the municipality and the meeting notice satisfies all the other requirements of the Open Meeting Law: 1) it is posted at least 48 hours in advance of the public meeting, excluding Saturdays, Sundays and legal holidays; 2) it is displayed in a legible, easily understandable format; 3) it contains the date, time and place of the meeting; 4) it lists the topics that the Chair reasonably anticipates will be discussed at the meeting with sufficient specificity to advise the public of the issues the public body will discuss; and 5) the date and time that the notice was posted is conspicuously recorded on the notice. Public bodies are encouraged to coordinate with the municipal clerk, or the person designated by agreement with the municipal clerk, to ensure that meeting notices are filed sufficiently in advance of the meeting to allow the municipal clerk or the designee to post the meeting 48 hours in advance.
For example, if a Board of Selectmen plans to meet on a Monday night at 6:00 p.m. but the municipal clerk's office closes at 1:00 on Thursday, the Chair of the Board should plan to submit the notice for filing and posting in advance of 1:00 to allow the municipal clerk ample time to post the meeting notice. It is the public body's responsibility to ensure that the meeting notice is received for posting by the municipal clerk or the clerk's designee.
If a meeting notice for a regional public body is filed in all the towns in the region, with the exception of one, is the meeting notice posted adequately?
No, the meeting notice must be filed with the municipal clerk in each city and town within the district. As an alternative method of notice, a regional public body may post a meeting notice on the regional public body's website.
If a subcommittee of a public body holds a meeting and members of the public body, who are not members of the subcommittee, wish to attend the meeting, must the public body post a meeting notice?
No, as long as the public body does not engage in a deliberation. Members of a public body may wish to attend a meeting of a subcommittee of that public body, even where those members are not part of the subcommittee. In those cases, they may sit in the audience and participate as members of the public. They may address the public body with the permission of the chair, and may state their opinion on matters under consideration by the subcommittee. They may not discuss matters as a quorum, or discuss topics which are not under consideration by the subcommittee. Doing so would constitute a deliberation, and a separate meting notice for the public body would be required. The subcommittee convening the meeting must still post its regular meeting notice.
Meetings (New as of March 10, 2017)
* What accommodations must public bodies provide for individuals with disabilities?
All open session meetings of public bodies must be accessible to members of the public, including those with disabilities. Therefore, public bodies must ensure that meeting are held in handicap accessible locations. Public bodies are encouraged to include in meeting notices the name and contact information of the appropriate Americans with Disabilities Act (“ADA”) Coordinator, so that any individual seeking an accommodation may contact the ADA Coordinator in advance of the meeting. The following sample language is recommended by the Attorney General’s Civil Rights Division:
If you need reasonable accommodations in order to participate in the meeting, contact the ADA Coordinator [Insert Name/Contact Information]in advance of the meeting. While the municipality will do its best to accommodate you, certain accommodations require the hiring of outside contractors who may not be available if requested immediately before the meeting.
* May a public body meet without a quorum?
The Open Meeting Law requires that any communication between or among a quorum of a public body on any matter within its jurisdiction must be conducted during a noticed meeting. See G.L. c. 30A, §§ 18, 20. A “quorum” is defined as “a simple majority of the members of the public body, unless otherwise provided in a general or special law, executive order or other authorizing provision.” G.L. c. 30A, § 18. The law defines a “meeting” as “a deliberation by a public body with respect to any matter within the body’s jurisdiction[.]” Id. Thus, when less than a quorum meets (and it is not a subcommittee of the public body), it is not considered a “meeting” under the law.
Nevertheless, we caution public bodies about meeting when a quorum is not present. The Open Meeting Law prohibits serial communication between or among members of a public body that reach a quorum of members outside of a noticed meeting. Thus, when a sub-quorum discusses a topic, which is then shared with a quorum outside of a meeting, it may be considered improper deliberation. See District Attorney for the Northern District v. School Committee of Wayland, 451 Mass. 561, 570-571 (2009) (“Governmental bodies may not circumvent the requirements of the open meeting law by conducting deliberations via private messages, whether electronically, in person, over the telephone, or in any other form”). The Attorney General recommends that a public body that does not achieve a quorum for a particular meeting consider postponing the meeting until a quorum is present, rather than proceeding with an informal discussion.
Local Commissions on Disability may meet without a quorum physically present in accordance with G.L. c. 30A, § 20(e), where additional members participate remotely in order to reach the quorum.
Calculation of Quorum and Majority
What is a quorum of a public body?
The Open Meeting Law defines a quorum as a simple majority of the members of a public body, unless otherwise provided in a general or special law, executive order, or other authorizing provision. G.L. c. 30A, § 18. If a quorum of a public body wants to discuss public business within that body’s jurisdiction, they must do so during a properly posted meeting. See id.
How does a public body determine what constitutes “a simple majority of the members,” for purposes of calculating quorum, when there are vacancies?
When there is a vacancy on a public body, a quorum is still measured by the number of members of the public body as constituted. See Gamache v. Town of Acushnet, 14 Mass. App. Ct. 215, 219 (1982) (noting that a Town bylaw established a board of appeals of five members, and a temporary vacancy did not alter that bylaw). However, a general or special law, executive order, or other authorizing provision may provide for the quorum of a public body to be a majority of the members serving on the body. See G.L. c. 30A, § 18. The Open Meeting Law does not define what constitutes an “authorizing provision,” but where a general or special law sets a body’s or type of body’s number of members or quorum requirement, no other provision can set a different number or requirement. And where a general law says that a body or type of body has a set number of members, then unless a general or special law says otherwise, G.L. c. 4, § 6, clause 5, sets the quorum at a majority of that number, and no other provision can set a different quorum requirement.
EX 1 A public body has seven (7) members, therefore a quorum is four (4) members. If the same seven-member public body has two (2) vacancies, then there are only five (5) members serving on the public body. By default, a quorum is still measured as four (4) members.
EX 2 A general law creates a seven (7) member public body and states that a quorum of that body shall be a majority of the members serving on the body. There are two (2) vacancies on the public body, leaving (5) members serving. Because the general law creating the body specifies that quorum is measured as a majority of the five (5) serving members, quorum is now three (3) members.
If the practice of remote participation has been authorized in a municipality, may an individual public body adopt a policy prohibiting or further restricting its use?
No. Only the adopting authority specified in 940 CMR 29.10(2) may establish restrictions on the use of remote participation. The adopting authority can authorize the practice for all public bodies within its jurisdiction but give all public bodies the opportunity to opt out of the practice, however.
What types of restrictions may an adopting authority place on remote participation?
An adopting authority, such as the Board of Selectmen in a town, may decide to adopt the practice of remote participation, but place restrictions on its use. Just as the adoption of remote participation must apply to all public bodies within the adopting authority’s jurisdiction, however, any restriction on remote participation, other than on the amount or source of payment for any costs associated with the practice, must apply uniformly to all public bodies within the adopting authority’s jurisdiction. Note: A local commission on disability that has separately adopted remote participation may set restrictions on use by its members.
For instance, a Board of Selectmen may choose to adopt a policy saying that no member of any public body in the town may participate remotely in more than three meetings each year. Or the Board may adopt a policy stating that a last minute lack of childcare shall be considered a personal emergency justifying remote participation under 940 CMR 29.10 (5)(c). However, the Board may not authorize the practice but say that only the Board of Selectmen can utilize it. The Board can say that funds for the purchase of necessary equipment will only be allocated for the Board’s use, though.
An adopting authority also may not adopt a policy that violates state or federal law. Thus, it is not permissible for an adopting authority to say that no member may participate remotely due to personal disability or geographic distance, since these are allowable reasons for remote participation under the Attorney General’s regulations. But the adopting authority can adopt a policy saying that any member wishing to participate remotely due to geographic distance must be a certain distance from the meeting location for his or her physical attendance to be considered unreasonably difficult.
If remote participation has been adopted, must a quorum of a public body be physically present at the meeting location?
Yes. A quorum of a public body, including the person chairing the meeting, must be physically present at the meeting location. The only exception to this general rule is for local commissions on disability (see below).
May a local commission on disability use remote participation even if the practice has not been adopted by its municipal adopting authority?
Yes. Local commissions on disability may decide by majority vote of the commissioners at a regular meeting to permit remote participation during a specific meeting or during all commission meetings. Adoption by the municipal adopting authority (i.e. Board of Selectmen or Mayor) is not required.
Must a quorum of a local commission on disability always be physically present at the meeting location?
No. Effective July 1, 2015, if a local commission on disability has adopted remote participation, a quorum of the commission does not need to be present at the meeting location. However, a local commission on disability must still provide a physical meeting location where interested members of the public may attend and hear the discussion by the body. Additionally, the commission’s chair, or the person chairing the meeting in the chair’s absence, must be present at the meeting location. This means that if the chair wishes to participate remotely, he or she may do so, but may not then chair the meeting. Finally, note that while the law requires that only one member of a local commission on disability (the chair) be physically present at the meeting location, a quorum of the commission must still participate, remotely or in person, for a “meeting” to occur.
Deliberation and Electronic Communications (New as of March 10, 2017)
* May a public body member communicate with other public body members over email?
Yes, but only in limited circumstances. A member of a public body may email other public body members on matters within jurisdiction of a public body so long as the email does not reach a quorum of the public body. Communications between and among a quorum of a public body on matters within the jurisdiction of the public body must occur during a noticed meeting. G.L. c. 30A, §§ 18, 20. A public body member may lawfully email a quorum of the public body only to discuss scheduling a meeting, distribute a meeting agenda, or to distribute reports or documents to be discussed at a meeting, provided that no opinion of a member of the public body is expressed. See G.L. c. 30A, § 18.
* May members of a public body communicate with the public through social media platforms such as Facebook, Twitter, and webpages?
Yes, members of public bodies may communicate with members of the public through any social media platform. However, members of public bodies must be careful not to engage in deliberation with the other members of the public body through such communications. If a member of a public body communicates directly with a quorum of the public body over social media platforms such as Facebook or Twitter, that communication may violate the Open Meeting Law. Public body members should proceed with caution when communicating via these platforms.
* May a members of a public body participate in a listserv?
It depends. A listserv is an electronic mailing list. A member of a public body may subscribe to a listserv. However, where a quorum of the members of a public body subscribe to a listserv, the public body risks unlawful deliberation. Where a quorum of the members of a public body belong to a listserv, public body members cannot participate in discussions which involve subject matter within the jurisdiction of the public body without engaging in unlawful deliberation. Therefore, we recommend that public body members use caution when joining or participating in listservs in which subject matters within the jurisdiction of their public body may be discussed.
* May members of public bodies who are physically present at a meeting use electronic messaging, such as text messaging or email, to communicate with members of the public during that meeting?
The Open Meeting Law does not address this issue. The Open Meeting Law encourages government transparency; however, the best practice is for public body members to avoid the use of electronic devices during meetings to discuss matters within the jurisdiction of the public body if those electronic communications are not shared with members of the public attending the meeting.
* May members of public bodies who are physically present at a meeting use electronic messaging, such as text messaging or email, to communicate with other public body members during that meeting?
With a few exceptions, any use of electronic messaging by public body members to communicate with a quorum of public body members, during or outside of a meeting, may constitute private deliberation, which is prohibited by the Open Meeting Law. Electronic messaging during a meeting by less than a quorum of the public body’s members, while not directly prohibited by the Open Meeting Law, is discouraged if those electronic communications are not shared at the meeting with the members of the public who are present. Note that members of public bodies may not use electronic messaging, such as email or text messaging, to participate remotely in meetings at which they are not physically present. Such remote participation must occur in accordance with the Attorney General’s regulations found at 940 CMR 29.10.
Meeting Minutes (Updated March 10, 2017)
Must documents used by a public body at a meeting be retained with the minutes?
No, documents used by a public body at a meeting may be retained separately from the minutes. However, once used by the public body at a meeting, the documents become part of the official record and therefore must be maintained in accordance with the public record retention schedule issued by the Secretary of State. The minutes must still list all the documents used by the public body.
Must the minutes of meetings list all members of the public body?
The Open Meeting Law requires that the minutes of a meeting list the names of the members present or absent. However, the best practice is to list the names of all members present and absent in the minutes of the meeting.
* What are the acceptable methods for approving meeting minutes?
Public bodies must create and approve minutes of all meetings, including executive sessions, in a timely manner. While the Open Meeting Law does not define “timely manner,” we recommend that minutes be approved at the next meeting whenever possible. The Open Meeting Law does not govern the method for approving those minutes, however. Public bodies may choose the method for approving their minutes, including approval by the public body chair alone, by majority vote of the public body, or by consent of the body (approved without objection). When a quorum of a public body approves minutes, however, it must do so during a noticed meeting.
Executive Session Minutes (New as of March 10, 2017)
* What process must public bodies follow for reviewing executive session minutes for approval?
Executive session minutes must be approved in a timely manner, just like open session minutes. Executive session minutes may be withheld from disclosure “as long as publication may defeat the lawful purposes of the executive session, but no longer.” G.L. c. 30A, § 22(f). If a public body reviews confidential portions of executive session minutes in open session, it may risk publicly disclosing confidential information. For this reason, a public body may decide to designate the chair or another individual to review and approve executive session minutes, or it may review the minutes together in executive session (see below).
* Can a public body convene in executive session to approve executive session minutes?
Yes, a public body may convene in executive session to review and approve executive session minutes. A public body may convene in executive session under the original purpose for the executive session, or it may convene in executive session pursuant to G.L. c. 30A, § 21(a)(7) “[t]o comply with, or act under the authority of, any general or special law or federal grant-in-aid requirements” (“Purpose 7”), citing to the Open Meeting Law, G.L. c. 30A, §§ 22(f), (g). That section of the Open Meeting Law requires public bodies to review executive session meeting minutes and allows them to withhold executive session minutes and documents used therein from the public until the purpose for confidentiality has expired.
* What process must public bodies follow for reviewing executive session minutes for release to the public?
The Open Meeting Law requires that a public body, or its chair or designee, review the minutes of its executive sessions at reasonable intervals to determine if the Open Meeting Law warrants continued non-disclosure. G.L. c. 30A, § 22(g)(1). Upon a request for executive session meeting minutes, it shall review those minutes and release “the non-exempt minutes, or any portion thereof, not later than the body’s next meeting or 30 days, whichever first occurs.” G.L. c. 30A, § 22(f).
The law requires a two-stage review of executive session minutes, with both stages occurring within 30 days of a request. G.L. c. 30A, § 22(f), (g)(2). First, the public body must determine whether the executive session purpose continues to warrant confidentiality. G.L. c. 30A, § 22(f). Second, if the purpose no longer warrants confidentiality, then the public body must determine whether the attorney-client privilege or one or more of the exemptions under the Public Records Law apply to withhold the minutes, or a portion thereof, from disclosure. Id. At the conclusion of this review, the public body must respond to the requester and either make the minutes available or provide an explanation of what is being withheld and why. A public body may not charge the requester a fee for this review.
May a public body perform an evaluation of an employee in executive session?
No. Deliberations conducted for the explicit purpose of evaluating the professional competency of an individual may not occur during an executive session. See G.L. c. 30A, §21(a)(1). While conclusions drawn from deliberations about professional competency may be part of a deliberation for another executive session purpose, the evaluation of professional competency, itself, must occur during an open session. For example, as part of the discussion in preparation for renegotiating a superintendent's contract, a school committee may wish to consider the results of an annual professional competency evaluation. The evaluation results may be considered as part of deliberations about strategy held in executive session, however only after deliberations about professional competency were held during a previously convened open session.
Are individual evaluations completed by members of public bodies public records?
Yes. The Open Meeting Law carves out an exception from the personnel records exemption from the Public Records Law for "materials used in a performance evaluation of an individual bearing on his professional competence," that were created by members of a public body and used during a meeting. See G.L. c. 30A, §22(e). Individual evaluations created and used by members of a public body for the purpose of evaluating an employee are public records. Comprehensive evaluations that aggregate the individual public body members' evaluations are also public records if they are used during the course of a meeting. However, evaluations conducted by individuals who are not members of public bodies are not public records. For example, the individual evaluations created by municipal employees in response to a request for feedback on the town administrator are not public records, provided the employees completing the evaluations are not also members of the public body tasked with evaluating the town administrator's professional competency.
May the individual evaluations of an employee be aggregated into a comprehensive evaluation?
Yes. Members of a public body may individually create evaluations, and then submit them to an individual to aggregate into a master evaluation document to be discussed at an open meeting. Ideally, members of the public body should submit their evaluations for compilation to someone who is not a member of the public body, for example, an administrative assistant. If this is not a practical option, then the chair or other designated public body member may compile the evaluations. However, once the individual evaluations are submitted for aggregation there should be no deliberation among members of the public body regarding the content of the evaluations outside of an open meeting, whether in person or over email.
May a public body discuss issues relative to the salary of a public employee in executive session?
It depends. Discussions of salary issues may only occur in executive session as part of a contract negotiation. SeeG.L. c. 30A, § 21(a)(2), (3). Other discussions related to salary, such as a discussion about whether an employee's job performance merits a bonus or salary increase, must be conducted in open session.
Applications For Tax Abatement or Exemption
When considering applications for tax abatement or exemption, must a Board of Assessors list the names and addresses of applicants in its meeting notice?
No, the Board does not need to list applicants’ names or addresses in the Board’s meeting notice, and the Department of Revenue’s Division of Local Services has stated that Boards may be legally prohibited from doing so. Applications for abatement or exemption are confidential under G.L. c. 59, § 60. Although certain information about the application, such as the name or title in which the tax stands assessed, must be made public once an abatement or exemption has been granted, the Board is not required to release that information before that time. It is therefore sufficient for the meeting notice to state that the Board is considering applications for abatement or exemption. Boards may also wish to include the number of applications under consideration in their meeting notices. This provides the public with additional detail about the topic to be discussed without compromising applicant confidentiality.
May a Board of Assessors meet in executive session to discuss applications for tax abatement or exemption?
A Board of Assessors may enter executive session to discuss and vote on applications for tax abatement or exemption. Massachusetts General Laws state that applications for tax abatement or exemption may only be disclosed to a select group of public officials, though certain information about the application must be made public if it is granted. G.L. c. 59, § 60. If a Board of Assessors plans to discuss the content of an application for tax abatement or exemption, therefore, the Board may convene in executive session under Purpose 7, “to comply with, or act under the authority of, any general law,” citing G.L. c. 59, § 60 as the statute requiring confidentiality. See G.L. c. 30A, § 21(a)(7). The Board may also wish to discuss tax returns, health records, and other sensitive material that is often submitted along with applications for tax exemption in executive session, and may do pursuant to Purpose 7 by citing the statutory right to privacy, G.L. 214, § 1B, or any other statute requiring confidentiality of these records. See id. If the Board believes it can effectively discuss an application for tax abatement or exemption and supporting documents without revealing protected information, it may hold the discussion in open session. However, Boards should be aware that any document that is “used” during an open session meeting is no longer exempt from disclosure pursuant to any of the exemptions to the Public Records Law. See G.L. c. 30A, § 22(e). If a Board has questions about how to comply with the confidentiality requirements of other statutes in that situation, it should consult municipal counsel.
Does an applicant for tax abatement or exemption have a right to be present and participate in a Board of Assessors’ discussion regarding his or her request?
If a Board of Assessors chooses to discuss an application for tax abatement or exemption in executive session, the applicant does not have a right to be present or to speak during the executive session, though he or she may attend and participate at the discretion of the Board. In contrast, all members of the public have a right to attend any open session meeting of a public body; therefore, an applicant for tax abatement or exemption may be present during any open session discussion by a Board of Assessors of his or her application. See G.L. c. 30A, § 20(a). The Open Meeting Law does not require that a public body allow public participation, however, even during an open session meeting. The Open Meeting Law states that "[n]o person shall address a meeting of a public body without permission of the chair, and all persons shall, at the request of the chair, be silent." G.L. c. 30A, § 20(f). Public bodies should consult with municipal counsel about whether any other law requires that a member of the public be permitted to speak during a meeting.
Must a public body list in its minutes all applications for tax abatement or exemption that are considered during a meeting?
Yes. The Open Meeting Law requires that the minutes of a public body’s meetings contain “a list of documents and other exhibits used at the meeting,” thus if a specific application and supporting documents are discussed by the body during a meeting, those documents should be identified in the minutes. G.L. c. 30A, § 22(a). However, the minutes of an executive session and all documents used at the session may be withheld from disclosure to the public as long as publication may defeat the lawful purposes of the executive session. G.L. c. 30A, § 22(f). Therefore, if a Board discusses an application in executive session under Purpose 7, “to comply with, or act under the authority of, any general law,” citing G.L. c. 59, § 60 as the statute requiring confidentiality, the minutes may be withheld as long as that statute’s confidentiality restrictions apply. Similarly, tax returns, health records, and other sensitive material discussed in executive session along with an application for tax exemption may also be withheld as long as a statute requiring their confidentiality applies. See G.L. c. 30A, § 21(a)(7); G.L. c. 30A, § 22(f). While the Open Meeting Law requires that a public body release executive session minutes once the executive session purpose has expired, a public body may still redact or withhold minutes subject to the exemptions to the Public Records Law contained within clause twenty-sixth of G.L. c. 4, § 7, or where discussions may be protected by the attorney/client privilege. See G.L. c. 30A, § 22(f). If an application for tax abatement or exemption and supporting documentation are used during an open session meeting, however, neither those documents nor the minutes identifying them are exempt from disclosure pursuant to any of the exemptions to the Public Records Law. See G.L. c. 30A, § 22(e). If a Board has questions about how to comply with the confidentiality requirements of other statutes in that situation, it should consult municipal counsel.
Union and Non-Union Contracts
May a public body approve a non-union personnel contract in executive session?
The final vote to execute a non-union personnel agreement must occur in open session. A public body may enter executive session under Purpose 2 to “conduct strategy sessions in preparation for negotiations with nonunion personnel or to conduct . . . contract negotiations with nonunion personnel.” G.L. c. 30A, § 21(a)(2). This purpose allows a public body to meet in executive session to discuss its strategy with respect to negotiating a contract with non-union personnel, and to engage in direct negotiations with non-union personnel. However, the executive session purpose does not permit the public body to take a final vote to execute such a contract behind closed doors. While a public body may agree on terms with individual non-union personnel in executive session, the final vote to execute such agreements must be taken by the public body in open session. See OML 2011-56; OML 2011-44; OML 2011-28.
May a public body approve a collective bargaining agreement (CBA) with a union in executive session?
A public body may approve final terms and execute a CBA with a union in executive session, but should promptly disclose the agreement in open session following its execution. A public body may enter executive session under Purpose 2 to “conduct collective bargaining sessions” and under Purpose 3 to “discuss strategy with respect to collective bargaining or litigation if an open meeting may have a detrimental effect on the bargaining or litigating position of the public body and the chair so declares.” G.L. c. 30A, §§ 21(a)(2), (3). These purposes allow a public body both to discuss collective bargaining strategy and to bargain directly with a union in executive session. Id.; see Board of Selectmen of Marion v. Labor Relations Commission, 7 Mass. App. Ct. 360 (1979). Unlike the language in Purpose 2, Purpose 3 does not limit strategy discussions to the preparatory stage, rather it broadly allows a body to go into executive session “to discuss strategy” with respect to collective bargaining or litigation any time an open meeting may have a detrimental effect on the body’s bargaining or litigating position and the chair so declares. G.L. c. 30A, § 21(a)(3). Because there are circumstances in which both the bargaining and litigating positions of a public body may be detrimentally affected by voting on a final CBA in the open, then, if the chair determines that such circumstances are present, contract approval may occur in executive session if the chair makes the appropriate declaration, and no open session ratification is needed. See Doherty v. School Committee of Boston, 386 Mass. 643 (1982) (holding that closed door votes are permissible where a body meets in executive session to protect its litigating position). Once a CBA has been executed, the public body should publicly announce the CBA in open session and describe the terms reached. Ideally, this should occur either during the same meeting or at the public body’s next scheduled meeting.
 Note, however, that the Open Meeting Law does not require that any topic be discussed in executive session. We do not address whether any other law may require a closed-door discussion in this instance.
Matters Outside the Open Meeting Law (New as of March 10, 2017)
* The Role of the Attorney General’s Division of Open Government (the “Division”)
The Division interprets and enforces the Open Meeting Law. The Division is frequently asked questions about matters outside the Open Meeting Law, over which the Division does not have jurisdiction, and therefore does not offer guidance. The following are questions regarding issues that do not involve the Open Meeting Law, and are therefore matters that the Division is generally not able to resolve.
* Does the Division have jurisdiction to find a violation of the Open Meeting Law if members of a public body make untrue comments during a meeting or disparage an individual?
No. The Open Meeting Law does not address this issue. While the Division reviews meeting minutes to ensure that they accurately reflect the discussions that take place during meetings, the Division cannot ensure that the statements made by individuals at meetings are factually true. See OML 2015-133. Similarly, the Division does not investigate allegations that a public body slandered, defamed, or harassed any person. See OML Declination 1-27-14 (Sturbridge Conservation Commission). Nevertheless, the Attorney General encourages civility during all meetings of public bodies.
* Does the Division have jurisdiction to find a violation of the Open Meeting Law if a public body fails to meet the notice requirements for conducting a particular kind of public hearing?
No. A public hearing is an event held by a public body during an open meeting at which the public body receives comments or testimony on a matter before the body. The Open Meeting Law does not require a public body to conduct a public hearing. However, if a public body, either because of a separate legal requirement or on its own initiative, does conduct a hearing, it must still follow the Open Meeting Law’s notice requirements. See G.L. c. 30A, § 20. There may be additional notice requirements imposed by other laws specific to the public hearing, for example, publication of a notice in a newspaper or notice to abutters, but the Open Meeting Law does not govern a public body’s obligations to follow such other notice requirements that are specific to a public hearing. Therefore, the Division does not review allegations that a public body violated any requirement of a separate law governing a public hearing. See OML 2013-187.
* Is it a violation of the Open Meeting Law for a public body chair to prohibit or limit public comment?
No. The Open Meeting Law gives the public body chair discretion over who may address the public body during a meeting and for how long. G.L. c. 30A, § 20(g); OML 2013-64. Nevertheless, the Attorney General encourages public bodies to allow reasonable public participation during meetings.
* Is it a violation of the Open Meeting Law if a public body fails to provide documents in response to a request for public records?
Generally, no. The Supervisor of Records within the Secretary of the Commonwealth’s Office is charged with reviewing appeals under the Public Records Law, G.L. c. 66, § 10. While the Division of Open Government will investigate a complaint alleging a failure to provide meeting minutes in response to a request under the Open Meeting Law, see G.L. c. 30A, § 22(c), inquiries concerning requests for all other types of documents from public bodies should be directed to the Supervisor of Records at (617) 727-2832.
* Does the Division have jurisdiction to find a violation of the Open Meeting Law if a member of a public body behaves unethically or acts with a conflict of interest?
No. Allegations concerning conflicts of interest should be addressed to the State Ethics Commission, which may be contacted at (617) 371-9500.