Wednesday, June 30, 2010

A First Look at AG's Interim Open Meeting Regs

The office of Attorney General Martha Coakley today released an advance copy of emergency regulations it plans to implement tomorrow as it takes over exclusive responsibility for enforcement of the state's open meeting law.
In an e-mail transmitting the regulations, Coakley said she would seek public comment on the emergency regulations and adopt final regulations no later than Oct. 1, 2010.

"Our office is committed to ensuring that the changes to the OML will provide for greater transparency and clarity -- both of which are hallmarks of good government," Coakley said in the e-mail. "We are focused on providing educational materials, outreach and training sessions to ensure that all stakeholders understand the law and can prevent violations."

The regulations contain provisions that specify:
  • The procedures for posting meeting notices under the new law.
  • The procedure for filing complaints of OML violations.
  • The process by which the AG will investigate and conduct hearings on OML complaints.
  • The ways in which the AG will resolve complaints, whether before a hearing or after one.
  • A process for the AG to issue advisory opinions on the OML.
One aspect of the new law I've criticized is its change of the penalty provision to require proof that a violation was "intentional." The statute defines an intentional violation as "an act or omission by a public body or a member thereof, in knowing by violating the open meeting law." (I assume "knowing by violating" was supposed to say "knowingly violating.")

The AG's regulations amplify that slightly, to read as follows:
Intentional Violation means an act or omission by a public body, or a member of a public body, that knowingly violates the OML. Repeated conduct in violation of the OML will be considered evidence of an intentional violation where the body or member has previously been authoritatively advised that the conduct violates the OML.
The specification of "repeated conduct" as evidence of intent makes good sense and provides at least some tangible measure to an often difficult-to-prove standard.

The regulations will be codified as 940 CMR 29.00 et seq. 

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