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
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.
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.
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.
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.
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 munciaplity 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.
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.
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.
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.
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.