On March 12, 2020, Governor Baker issued an Executive Order Suspending Certain Provisions of the Open Meeting Law, to enable public bodies to carry out their responsibilities while adhering to public health recommendations regarding social distancing.
First, the executive order relieves public bodies from the requirement in the Open Meeting Law that meetings be conducted in a public place that is open and physically accessible to the public, provided that the public body instead provides adequate, alternative means of public access to the deliberations of the public body. “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, the executive order authorizes all members of a public body to participate in a meeting remotely; the Open Meeting Law’s requirement that a quorum of the body and the chair be physically present at the meeting location is suspended.
All other provisions of the Open Meeting Law and regulations, such as the requirements regarding posting notice of meetings and creating and maintaining accurate meeting minutes, as well as the limited, enumerated purposes for holding an executive session, remain in effect.
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 in the executive order and here 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 access to the meeting as it is occurring?
The executive order provides that 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. In light of the various free and low-cost technologies 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 proceedings remotely?
Yes. Section (1) of the executive order allowing public access through adequate, alternative means is independent from Section (2), which allows members of the public body to participate remotely. The public body may conduct its proceedings under the relief provided in section (1) or (2) or both.
If a public body will provide access to its meeting through “adequate, alternative means,” what information must be included on the meeting notice?
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 to obtain access information for the meeting, rather than including such information on the public meeting notice, to minimize Zoom-bombing and similar disruptions. In such situations, the meeting notice must include clear contact information, and members of the public must be able to obtain the meeting access information up to 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 the Governor’s executive order 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 nobody 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.