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SECTION I: MEETINGS
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 in this section. G.L. c.39 s.23B.
The central provision of the open meeting law, quoted above, is a general mandate that meetings of "governmental bodies" be open to public attendance. The definitions, also provided by the statute, contain broad descriptions of the terms "governmental body" and "meetings" consistent with the legislature's intention that all public business, with the exception of very narrowly described and limited circumstances, be conducted in open sessions.
"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 inclulde a town meeting." G.L. c.39 s.23A.
While it is clear that the Open Meeting Law does not apply to individual public officers, such as mayors or chiefs of police, and their assistants, see Connelly v. School Committee of Hanover, 403 Mass. 202 (1991), it is equally clear that all collegial groups are subject to its requirements.
The law cannot be circumvented by the delegation of public business to subcommittees or boards "however elected, appointed or otherwise constituted."
Subcommittees appointed by any governmental body are covered by the law. Nigro v. Conservation Commission of Canton, 17 Mass. App. Ct. 433 (1984). It is consistent with this broad definition to interpret it to include not only subcommittees comprised of the parent governmental body members, but also subcommittees, or special purpose committees, that may contain individuals who are not on the parent body. As long as a body, however constituted is carrying out delegated functions or responsibilities of the parent body, their convenings are required to be open to the public.
The fact that the jurisdiction of the subcommittee extends only to making recommendations to the parent governmental body does not render the law inapplicable.
"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 on-site inspection of any project or program.
"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.
This section shall not apply to any chance meeting or a social meeting at which matters relating to public business are discussed so long as no final agreement is reached. 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.
Once again, the intention of the legislature to require open meetings under all but very narrow circumstances is made clear by the broad definition of "meetings" and "deliberations."
It was recently argued that a meeting between members of a town board and its attorney did not constitute a meeting and deliberation of the board, as it did not consist primarily of communication between the board members themselves. The Supreme Judicial Court rejected this narrow approach to the definition of "meeting" and deliberation and, holding that the consultation was an exchange of views among members of the board and between the board and its attorney, indicated that the convening did fall within the statute. District Attorney for the Plymouth District v. Board of Selectmen of Middleborough, 395 Mass. 629 (1985).
From this it can be seen that the Courts will not be receptive to hypertechnical arguments that a particular gathering of a board does not fall within the statute because a particular conversation did not amount to deliberations, or that a particular verbal exchange was not in the course of attempting to arrive at a decision.
It has been suggested that a board may meet to discuss public business in private so long as there is no specific intention to vote on, or make a final decision on, an issue. This interpretation is flatly contradicted by the Supreme Judicial Courts holding in the Middleborough case that a simple "exchange of views" by members of a board on a public issue was sufficient to constitute a meeting. Further, even where a board does no more than receive answers to prepared questions, that is enough of a "verbal exchange" to constitute a meeting for the purposes of the Open Meeting Law. Gerstein v. Superintendent Search Screening Committee, 405 Mass. 465 (1989).
In summary, a verbal exchange on a public issue within the jurisdiction of a public board which takes place between a simple majority of the members of that board will, in almost all circumstances, be governed by the formalities prescribed in the open meeting law.
Chance meetings or social meetings during which board members discuss official business are exempted from the statute. However, such meetings cannot be used to circumvent the letter and spirit of the law. Thus it can be seen that a board which uses its formal meetings merely to ratify decisions made in private is in violation of the open meeting law.
