On March 29, 2023, Governor Healey signed into law a supplemental budget bill which, among other things, further extends temporary provisions pertaining to the Open Meeting Law to March 31, 2025. The temporary provisions were first implemented by Executive Order in March 2020 and subsequently enacted by Section 20 of Chapter 20 of the Acts of 2021, An Act Relative to Amending Certain COVID-19 Measures Adopted During the State of Emergency (“Section 20”) (as amended several times to extend the expiration of the temporary provisions).
The temporary provisions in Section 20 pertaining to the Open Meeting Law contain two primary provisions.
First, public bodies may continue providing live “adequate, alternative means” of public access to the deliberations of the public body, instead of holding meetings in a public place that is open and physically accessible to the public. “Adequate, alternative means” may include, without limitation, providing public access through telephone, internet, or satellite enabled audio or video conferencing or any other technology that enables the public to clearly follow the proceedings of the public body in real time.
Second, any or all members of a public body may continue participating in meetings remotely; the Open Meeting Law’s requirement that a quorum of the body and the chair be physically present at the meeting location remains suspended.
A public body is not required to provide remote access to a meeting if the meeting is held in a physical location that is open and accessible to the public. Nonetheless, we encourage public bodies to provide multiple methods of access to a meeting when feasible.
What means of access will be considered “adequate, alternative means?”
“Adequate, alternative means” may include, without limitation, providing public access through telephone, internet, or satellite enabled audio or video conferencing or any other technology that enables the public to clearly follow the proceedings of the public body as they are occurring (i.e., “live” or “in real time”). The methods listed are non-exhaustive, and we recognize that there are myriad methods that will be acceptable. “Adequate, alternative means” could include Zoom, a high-capacity telephone conference line, Facebook Live, YouTube Live, and broadcasting on live TV, including local cable access television. The brief delay of approximately 20 seconds when Zoom meetings are streamed to Facebook or YouTube Live is acceptable.
May a public body post a recording or transcript of the meeting afterwards, instead of providing
A public body must provide the public with real-time access for the duration of the meeting, excluding lawful executive sessions. If a meeting is posted as a remote meeting and technical difficulties prevent the public body from providing the public with consistent, clear remote access, the meeting should be canceled or adjourned and rescheduled for a later date. A municipal public body that, for reasons of economic hardship and despite best efforts, is unable to provide alternative means of public access that will enable the public to follow the proceedings in real time, may instead post a full and complete transcript, recording, or other comprehensive record on its website as soon as practicable after the meeting. However, in light of the various free and low-cost methods that could be used to provide the public with real-time access, the Division of Open Government strongly recommends that a municipal public body consult with our office before determining that it is unable to provide the public with real time access to a meeting.
May public body members meet in person, while requiring the general public to follow the proceed
Yes. Subsection (b) of Section 20 allowing public access through adequate, alternative means is independent from subsection (c), which allows members of the public body to participate remotely. The public body may conduct its proceedings under the relief provided in subsection (b) or subsection (c) or both.
If a public body will provide access to its meeting through “adequate, alternative means,” what
Public bodies must continue to post notice of every meeting at least 48 hours in advance of the meeting, not including weekends or state holidays, using the official notice posting method (physical notice or website), even if the clerk’s office is closed. The notice must include the “location” of the meeting. If access to the meeting will be provided through “adequate, alternative means,” the meeting notice must include clear instructions for accessing the meeting remotely. A public body may require members of the public to call, email, or “register” (such as in the Zoom Webinar platform) to obtain access information for the meeting, provided that the meeting notice includes clear instructions, and that members of the public can gain meeting access up until and throughout the duration of the meeting (members of the public cannot be required to register in advance).
What other requirements apply to remote meetings?
The Open Meeting Law regulations governing remote participation, 940 CMR 29.10, remain in effect, except where Section 20 specifically suspends certain requirements. In particular, when any—or all—public body members participate in a meeting remotely, the following requirements apply:
- At the start of the meeting, the chair must announce the name of the member or members who are participating remotely; such information must also be recorded in the meeting minutes.
- All votes must be taken by roll call.
- Members of the public body must be clearly audible to each other and to members of the public at all times.
- When holding an executive session remotely, the public body must still take all required procedural steps for entering into executive session in open session. At the beginning of the executive session, each public body member participating remotely must state that no other person is present or able to hear the discussion at the remote location, unless the public body has approved the presence of that individual.
Should the public body encounter technical problems while meeting remotely, the person chairing the meeting may decide how to address the technical difficulties, but is encouraged wherever possible to suspend discussion while reasonable efforts are made to correct any problem that interferes with a remote participant's ability to hear or be heard clearly. If technical difficulties result in a remote participant being disconnected from the meeting, that fact and the time at which the disconnection occurred must be noted in the meeting minutes.
What about public comment, public participation, and public hearings?
The Open Meeting Law does not require that public bodies allow public comment or public participation during meetings -- to the contrary, the Open Meeting Law specifies that no person shall address the public body without permission of the chair. However, the Attorney General encourages public bodies to allow public comment and/or public participation when feasible. Because the Open Meeting Law does not require that public bodies allow for public comment or public participation during meetings at all, the manner that public bodies may choose to accept comment or questions is outside the scope of the Open Meeting Law. Public hearings, on the other hand, are governed by separate laws that impose additional requirements, and may require opportunity for public comment or testimony. Those requirements are outside the scope of the Open Meeting Law and therefore do not fall within the Division of Open Government’s jurisdiction. Public bodies and members of the public should consult with legal counsel for guidance on the requirements for public hearings.