For Immediate Release - August 22, 2012

AG Coakley Announces Finalization of New Open Meeting Law Regulations

One Regulation Clarifies Rules about Restrictions on Remote Participation, Other Regulation Amends the Definition of “Intentional Violation”

BOSTON – Today, Attorney General Martha Coakley’s Office announced the finalization of two new regulations under the Open Meeting Law. One clarifies the regulation that allows adopting authorities to set consistent restrictions, reflecting their unique priorities and concerns, on the use of remote participation by members of public bodies. The other regulation provides additional guidance on the types of conduct that may be considered evidence of an intentional violation of the Open Meeting Law. 

REMOTE PARTICIPATION

In May, AG Coakley’s Office issued an emergency regulation clarifying the section of the Opening Meeting Law regulations that explains how adopting authorities can restrict the use of remote participation by members of public bodies. For example, the new regulation would permit a town Board of Selectmen to set consistent restrictions for the use of remote participation for all town boards and commissions that reflect local priorities and concerns. The AG’s Office held a two-month public comment period, followed by a public hearing in July, in order to receive feedback and input on the proposed regulation from public body members and members of the public. The final regulation was published in the Massachusetts Register on August 3, 2012.

This new regulation replaces 940 CMR 29.10(8), and reads as follows: 

Further Restriction by Adopting Authority.  These regulations do not prohibit any person or entity with the authority to adopt remote participation pursuant to 940 CMR 29.10(2) from enacting policies, laws, rules or regulations that prohibit or further restrict the use of remote participation by public bodies within that person or entity’s jurisdiction, provided those policies, laws, rules or regulations do not violate state or federal law.

The regulation previously read:

Effect on Bylaws or Policies.  These regulations do not prohibit any municipality or public body from adopting bylaws or policies that prohibit or further restrict the use of remote participation by public bodies within its jurisdiction.

The AG’s Office promulgated regulations governing remote participation in November 2011.  A copy of the final regulations can be found on the Attorney General’s Website, as can Frequently Asked Questions on the topic.

INTENTIONAL VIOLATION

In May, AG Coakley’s Office proposed a regulation to amend the definition of “Intentional Violation” in the Open Meeting Law regulations, 940 CMR 29.02.  Following a two-month public comment period, during which the AG’s Division of Open Government received useful feedback on the proposed regulation from public body members and members of the public, the office held a public hearing in July. The amendment provides additional guidance on the types of conduct that may be considered evidence of an intentional violation of the Open Meeting Law. The final regulation was filed on August 21 and will be published in the State Register on September 14.

The final regulation amends the definition in 940 CMR 29.02 to read:

Intentional Violation means an act or omission by a public body or a member thereof, in knowing violation of M.G.L. c. 30A, sec. 18-25.  Evidence of an intentional violation of M.G.L. c. 30A, sec. 18-25 shall include, but not be limited to, that the public body or public body member (a) acted with specific intent to violate the law; (b) acted with deliberate ignorance of the law’s requirements; or (c) was previously informed by receipt of a decision from a court of competent jurisdiction or advised by the Attorney General, pursuant to 940 CMR 29.07 or 940 CMR 29.08, that the conduct violates M.G.L. c. 30A, sec. 18-25.  Where a public body or public body member has made a good faith attempt at compliance with the law, but was reasonably mistaken about its requirements or, after full disclosure, acted in good faith compliance with the advice of the public body’s legal counsel, such conduct will not be considered an intentional violation of M.G.L. c. 30A, sec. 18-25.

 

The regulation previously read: 

Intentional Violation means an act or omission by a public body, or a member of a public body, that knowingly violates M.G.L. c. 30A, sec. 18-25. Conduct in violation of M.G.L. c. 30A, sec. 18-25, shall be considered evidence of an intentional violation where the body or member has previously been informed by receipt of a decision from a court of competent jurisdiction or advised by the Attorney General, pursuant to 940 CMR 29.07 or 940 CMR 29.08 that the conduct violates M.G.L. c. 30A, sec. 18-25.

In December 2011, the AG issued a proposed regulation that would have defined the term “Knowing or Knowingly” with respect to the Open Meeting Law.  Following the public comment period and a hearing on that regulation, the Attorney General proposed, in the alternative, amending the current definition of “Intentional Violation.”

The Attorney General also provided an accompanying set of Frequently Asked Questions on the topic:

FAQS ON INTENTIONAL VIOLATION REGULATION

Q:        Must a public body or public body member intend to violate the Open Meeting Law in order for the Attorney General to find a violation?

A:        No. A public body or public member can be found to have violated the Open Meeting Law even if there was no intent to do so. However, the Attorney General may only seek the imposition of a monetary penalty if the violation was intentional.

 

Q:        Does the new definition of “Intentional Violation” in the Attorney General’s regulations broaden or restrict in any way the Attorney General’s ability to impose penalties for knowing violations of the Open Meeting Law?

A:        No. The Attorney General may seek to impose a monetary penalty for any intentional violation of the Open Meeting Law.  The regulation defines “Intentional Violation” in the same way as the Open Meeting Law statute passed by the Legislature, however the revised definition provides additional examples of types of conduct that will be considered evidence of an intentional violation. The Attorney General is not required to find an intentional violation in any of these circumstances and, as before, may find a violation to be intentional even if it does not fall within one of the examples.


Q:        Does the new definition of “Intentional Violation” in the Attorney General’s regulations create a new defense for public bodies or public members that act on advice of counsel?

A:        No.  The Open Meeting Law statute passed by the Legislature in 2009 states that “[i]t shall be a defense to the imposition of a penalty that the public body, after full disclosure, acted in good faith compliance with the advice of the public body’s legal counsel.”  G.L. c. 30A, § 23(g).  The revised definition of “Intentional Violation” in the Attorney General’s regulations simply restates a defense that already existed in the Open Meeting Law.  Legal advice must be given in good faith, prior to the alleged violation, for it to form the basis of a defense to a finding of intentional violation.

 

Q:        Did the Attorney General previously only find violations to be intentional if a public body had been ordered by a court or advised by the Attorney General that the conduct was not permitted?

A:        No.  While the old definition of “Intentional Violation” in the Attorney General’s regulations noted that this type of conduct would be considered evidence of an intentional violation, the Attorney General was never constrained to find intentional violations only under such circumstances.  Indeed, the Attorney General has found that violations were intentional in three instances where there was no such prior warning.  See OML 2011-43; OML 2011-27; OML 2011-26.

BACKGROUND ON THE OPEN MEETING LAW

On July 1, 2010, the Attorney General’s Office assumed responsibility for enforcement of the Open Meeting Law with respect to local, regional, district, county and state public bodies.  Prior to that date, the state’s District Attorneys enforced the law as it pertains to local, regional, district and county public bodies.  Since July 1, 2010, AG Coakley’s Division of Open Government has responded to thousands of inquiries about the law’s requirements, conducted or participated in 65 trainings across the state, and issued more than 140 determinations.  In October 2011, in an effort to provide greater transparency and access to the office’s decisions, all of the Attorney General’s Open Meeting Law determinations became available online through an interactive database, the Open Meeting Law Determination Lookup.

For more information, please visit the Open Meeting Law section of the Attorney General’s website.

##############

Follow us on Twitter – View our Photos – Visit our Website