The Following Terms Used in the Open Meeting Law have the Following Meanings:
- Governmental body – Every board, commission, committee or subcommittee of any district, city, region or town, however elected, appointed, or otherwise constituted, and the governing board of a local housing, redevelopment or similar authority; provided, however, that this definition shall not include a town meeting.
- Meeting – Any corporal convening and deliberation of a governmental body for which a quorum is required in order to make a decision at which any public business or public policy matter over which the governmental body has supervision, control, jurisdiction, or advisory power is discussed or considered, but shall not include any onsite inspection of any project or program.
- Quorum – A simple majority of a governmental body, unless otherwise defined by constitution, charter, rule, or law applicable to such governing body.
- Deliberation – A verbal exchange between a quorum of members of a governmental body attempting to arrive at a decision on any public business within its jurisdiction.
- Emergency – A sudden, generally unexpected occurrence or set of circumstances demanding immediate action
- Burden of proof – The necessity or duty of affirmatively proving a fact or facts in dispute on an issue raised.
- Executive session – Any meeting of a governmental body which is closed to certain persons for deliberation on certain matters.
- Reputation – The character commonly imputed to one as distinct from real character. The community’s judgment of a person.
- Character – One of the attributes or features that made up and distinguish the individual. The combination of moral and intellectual beliefs that a person uses to direct his life.
- Professional competence – The requisite ability or qualities in a chosen field of endeavor.
- Complaint – Formal allegation against a party.
- Made public – When the records of an executive session have been approved by the members of the respective governmental body attending such session for release to the public and notice of such approval has been entered in the records of such body.
- Preponderance of evidence – Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it. Evidence which as a whole shows that the fact sought to be proved is more probable than not.
- All meetings of a governmental body shall be open to the public, and any person shall be permitted to attend any meeting except as otherwise provided by law.
- A governmental body cannot meet in a private session unless such action is authorized by Chapter 39, Section 23B.
- Aquorum of a governmental body cannot meet in a private session for the purpose of deciding an issue or deliberating toward a decision unless authorized by the Statute. Consequently, it should be noted that even though no actual vote is anticipated or taken by the governmental body, this does not exempt this meeting from the requirements of Chapter 39, Section 23B.
III. Notice Requirements
Except in an emergency a notice of every meeting of any governmental body, including date, time, and place, shall be filed with the clerk of the city or town in which the body acts and be publicly posted forty-eight hours prior to said meeting.
- Notice or copy of the notice shall be publicly posted in the office of the city or town clerk or on the principal official bulletin board of the city or town. NOTE: When calculating forty-eight hour notice requirement, include Saturday, but not Sunday and legal holidays.
- An emergency will be narrowly construed under this Statute, and the burden proof will be upon the person declaring the emergency to so prove it.
- The secretary of a regional school district committee shall be considered to be its clerk, and he/she shall file the notice of meetings of the committee with the clerk of each city or town within such district, and each clerk shall post the notice in his/her office or on the principal official bulletin board of the of the city or town. The secretary must also post such notice in his/her office or on the principal official bulletin board of the district.
- If the meeting shall be of a regional or district governmental body, the officer calling the meeting shall file the notice thereof with the clerk of each city and town within such region or district, and the clerk shall post the notice in his/her office or on the principal official bulletin board of the city or town.
- The notice is always required to include the date, time, and place of such meeting.
- Filing and posting is always the responsibility of the officer calling such meeting.
IV. EXECUTIVE SESSION
Under certain well-defined circumstances a governmental body may hold an executive session excluding the general public.In order to convene an executive session, the following procedure must be followed:
- The governmental body has to first convene in an open session, conforming to the usual notice requirements.
- A majority of the members must vote to go into executive session, and the vote of each member must be recorded on a roll call and entered into the minutes.
- The presiding officer must state before the executive session if the governmental body will reconvene after the executive session.
An executive session may be held only for one of the following purposes:
- To discuss the reputation ,character , physical condition, or mental health, rather than the professional competence , of an individual. NOTE: Since this Law is to be construed toward openness, a very broad interpretation of the term “professional competence” is called for. This would encompass all aspects of a person’s professional status. The discussion of professional competence, at any time and in any manner, should be open to the public and not held in executive session. If there is any doubt as to whether professional competence has become an issue, then an executive session should not be convened. Executive sessions may not be held when the issues relate to reputation, character, physical condition, and mental health as they relate to professional competence. Consequently, every discussion that is in any way related to a person’s professional competence must be held in a open public session.
- To consider the discipline or dismissal of, or to hear complaints or charges brought against a public officer, employee, staff member, or individual.
- To discuss strategy with respect o collective bargaining or litigation if an open meeting may have a detrimental effect on the bargaining or litigating position of the governmental body, to conduct collective bargaining sessions or contract negotiations with nonunion personnel.
- To discuss the deployment of security personnel or devices.
- To investigate charges of criminal misconduct or to discuss the filing of criminal complaints.
- To consider the purchase. Exchange, lease, or value of real property if such discussions may have a detrimental effect on the negotiating position of the governmental body and a person, firm, or corporation.
- To comply with the provisions of any general or special law or federal grant-in-aid requirements.
- To consider and interview applicants for employment by a preliminary screening committee or a subcommittee appointed by a governmental body if an open meeting will have a detrimental effect in obtaining qualified applicants; provided, however, that this clause shall not apply to any meeting, including meetings of a preliminary screening committee or a subcommittee appointed by a governmental body, to consider and interview applicants who have passed a prior preliminary screening.
- To meet or conference with a mediator, to discuss strategy and to develop negotiating positions with respect to any litigation or decision on any public business within its jurisdiction.
NOTE: In (1) and (2), above, if an executive session is held, the individual has the following rights:
The individual must be given 48 hours’ notice, in writing, before the executive session.
Such notice may be waived by agreement of both parties.
The individual may request an open meeting, and the governmental body must honor this request.
If an executive session is held, the individual has the right:
- To be present during discussion or considerations which involve that individual.
- To have counsel or a representative of his own choosing present. Such representative may advise the individual but not actively participate in the session.
- To speak on his own behalf.
V. CHANCE MEETING
The Open Meeting Statute shall not apply to any chance meeting or a social meeting at which matters relating to official business are discussed so long as no final agreement is reached.
In addition, no chance meeting or social meeting shall be used in circumvention of the spirit or requirements of this section to discuss or act upon a matter over which the governmental body has supervision, control, jurisdiction, or advisory power.
NOTE: If a quorum is present, discussions for the purpose of deliberating toward a decision are also prohibited.
Any matter, therefore, properly before the governmental body should not be handled by a chance or social meeting.
VI. MEMBERS GIVEN COPIES
Upon qualification for office following an appointment or election to a governmental body, each member shall be furnished by the city or town clerk with a copy of the Open Meeting Law. Each such member shall sign a written acknowledgment that he/she has been provided with such a copy.
VII. RECORDING REQUIREMENTS
A governmental body shall maintain accurate records of its meetings, setting forth the date, time, place, members present or absent, and action taken at each meeting, including executive session.
- The records of each meeting shall become public record and be made available to the public, provided, however, that the records of any executive session may remain secret as long as publication may defeat the lawful purposes of the executive session, but no longer.
- All votes taken in executive sessions shall be recorded roll call votes and shall become a part of the record of said executive sessions.
- A meeting of a governmental body may be recorded by person in attendance by means of a tape recorder or any other means of sonic reproduction or by means of videotape equipment fixed in one or more designated locations, determined by the governmental body except that in such recording there is no active interference with the conduct of the meeting.
- No votes taken in open session shall be by secret ballot.
NOTE: The provisions requiring accurate record keeping are the same for executive sessions as for open sessions.
- 1. The Attorney General's Office shall enforce the provisions of this Section. NOTE: This may be done in a number of ways including application by complaint for court orders (see “Remedies”).
- 2. Court order may be sought by complaint of:
- three or more registered voters; or
- the Attorney General;
- If court orders are requested, the complaint must be filed with the appropriate court within 21 days of the date when the action complained of is made public. NOTE: In calculating this 21-day period, Saturdays, Sundays, and legal holidays are included.
- The order of notice on the complaint shall be returnable no later than 10 days after the filing thereof. The complaint shall be heard and determined on the return day or on such day as the court shall fix, having regard to the speediest possible determination of the cause, consistent with the rights of the parties.
- However, orders with respect to any of the matters referred to in this Section may be issued at any time on or after the filing of the complaint without notice when such order is necessary to fulfill the purpose of this Law. Such order may also include a civil fine against the governmental body in an amount no greater than one thousand dollars for each meeting held in violation of this section.
- In the hearing of such complaints the burden shall be on the respondent to show by a preponderance of evidence that the action complained of in the complaint was in accordance with and authorized by the Open Meeting Law.
- All processes of a court action under this Law may be issued from the clerk’s office in the county in which the action is brought and, except as otherwise provided by the Law, shall be returnable as the court orders.
- Many Open Meeting Law violations may be resolved through the intervention of the Attorney General's Office without necessity of formal court action.
- If a formal complaint is filed, upon proof of failure by any government body or any member or officer thereof to carry out any of the provisions for public notice of meetings, for holding open meetings, or for maintaining public records thereof, any justice of the Supreme Judicial Court or the Superior Court, sitting within and for the county in which such governmental body acts, shall issue an appropriate order requiring such governmental body or officer thereof to carry out such provisions at future meetings.
- An order of the court may invalidate any action taken at any meeting at which any provision of this Section has been violated.
- An order may, when appropriate, require the records of any such meeting to be made public unless it shall have been determined by such justice that the maintenance of secrecy with respect to such records is authorized. The remedy created hereby is not exclusive but shall be in addition to every other available remedy.
- The rights of an individual set forth in the Open Meeting Law relative to his appearance before a meeting in an executive or open session are in addition to the rights that an individual may have from any other source, including, but not limited to, rights under any laws or non-exercise of individual rights under this Section shall not be construed as a waiver of any rights of the individual.