The Supreme Court's 1963 decision, Gideon v. Wainwright, guaranteed that criminal defendants unable to afford their own lawyer would have one appointed at the public's expense. Should there be a corollary right in certain types of civil cases that involve basic human needs, such as when a person faces eviction from a home or the loss of parental rights? California recently made history by enacting a pilot program to appoint lawyers in certain civil cases and other pilot programs are underway elsewhere in the country.
This week on the legal-affairs podcast Lawyer2Lawyer, we look at the Civil Gideon movement. Joining us as guests to discuss this topic are two lawyers who have been deeply involved in promoting Civil Gideon: Robert L. Rothman, partner of the Atlanta firm Arnall Golden Gregory and former chair of the Section of Litigation of the American Bar Association, and James J. Brosnahan, senior partner with Morrison & Foerster and member of the California Commission on Access to Justice.
Listen to or download the program from the Legal Talk Network.
\
Wednesday, November 18, 2009
Wednesday, November 11, 2009
Standard-Times Asks DA to Probe Wareham Meetings
From the Standard-Times:
The Standard-Times has asked the Plymouth County district attorney to investigate the Board of Selectmen's heavy use of executive sessions in the hiring of a new town administrator.Read more.
In response, Assistant District Attorney Mary Lee on Wednesday sent a letter to the town's legal counsel, asking for explanations and for minutes of all meetings involved with the search, both public and private.
Help Support the Bar Foundation's 45th Anniversary
The Massachusetts Bar Foundation is celebrating its 45th anniversary this year. I am honored to serve as a trustee of this important charitable organization, which is dedicated to ensuring equal access to justice and to enhancing the administration of justice and understanding of the law.
I urge companies, law firms, lawyers and other members of the legal community to support this 45th anniversary. Here are four ways you can do that:
I urge companies, law firms, lawyers and other members of the legal community to support this 45th anniversary. Here are four ways you can do that:
- Become an anniversary sponsor. Anniversary activities will culminate with a celebration dinner and fundraiser on Jan. 14, 2010, at the Colonnade Hotel, Boston. Sponsors will be featured at the dinner and in publicity and other materials throughout the year. CLICK HERE to download a PDF of the MBF's sponsorship opportunity guide.
- Donate items to the online silent auction. As part of the anniversary initiatives, the MBF will host an online silent auction of fun and unique items. This is an ideal opportunity for vendors to donate a product. CLICK HERE to donate an item for the silent auction.
- Purchase an ad in the dinner program. The sponsorship guide includes information on program ads.
- Attend the dinner. Tickets are not yet on sale, but save the date of Jan. 14. I will post a notice when ticket sales open.
Thursday, November 05, 2009
Podcast: E-mail and the 4th Amendment
Does the Fourth Amendment's protection against unreasonable searches and seizures extend to e-mail and data stored in "the cloud"? Surprisingly, the question remains unsettled in the courts. On this week's legal-affairs podcast Lawyer2Lawyer, we discuss the extent to which e-mail and other online data are protected in both the criminal and civil contexts. Joining us are two experts on the topic:
- Orin S. Kerr, professor of criminal law at the George Washington University Law School and author of a number of law review articles on the application of the Fourth Amendment to Internet and computer data.
- Jason Paroff, director of computer forensics operations with the ESI Consulting practice at Kroll Ontrack.
Wednesday, October 28, 2009
SJC To Hear Key Open Meeting Case
An important case interpreting the Massachusetts open meeting law comes up for argument before the Supreme Judicial Court on Monday. The case, District Attorney v. Wayland School Committee, presents the question of whether a school committee violated the law when it met in closed session to discuss the performance evaluation of the school superintendent.
(Note: I filed an amicus brief in this case on behalf of the Massachusetts Newspaper Publishers Association.)
The open meeting law requires that all committee meetings be open to the public except those that fall within express exceptions. This case involves the exception that allows a committee to meet in private "to discuss the reputation, character, physical condition or mental health rather than the professional competence of an individual." That italicized phrase is understood to mean that professional competence cannot be the subject of a closed meeting.
Despite that, the trial judge in this case relied on a separate exception to rule that the closed-door meeting was lawful. That exception allows a private meeting to "conduct strategy sessions in preparation for negotiations with nonunion personnel, to conduct collective bargaining sessions or contract negotiations with nonunion personnel."
The trial judge reasoned that because the superintendent was compensated pursuant to a written contract, and given that the amount of compensation was to be based, in part, on the evaluation, then the evaluation, itself, was to be considered part of the contract negotiation.
The problem with this reasoning is that it renders meaningless the professional competence exclusion noted above. Professional competence is a nearly universal measure on which employers base employment decisions. If every discussion of professional competence is to be considered a prelude to an employment-related decision, then it could always be discussed in private, under the trial judge's reasoning.
Interest in the case drew amicus briefs not just from the MNPA, but also from the Mass. Municipal Association, the Mass. Association of School Superintendents, and the Mass. Association of School Committees. You can read the briefs at the SJC's site and watch Monday's oral arguments via webcam.
(Note: I filed an amicus brief in this case on behalf of the Massachusetts Newspaper Publishers Association.)
The open meeting law requires that all committee meetings be open to the public except those that fall within express exceptions. This case involves the exception that allows a committee to meet in private "to discuss the reputation, character, physical condition or mental health rather than the professional competence of an individual." That italicized phrase is understood to mean that professional competence cannot be the subject of a closed meeting.
Despite that, the trial judge in this case relied on a separate exception to rule that the closed-door meeting was lawful. That exception allows a private meeting to "conduct strategy sessions in preparation for negotiations with nonunion personnel, to conduct collective bargaining sessions or contract negotiations with nonunion personnel."
The trial judge reasoned that because the superintendent was compensated pursuant to a written contract, and given that the amount of compensation was to be based, in part, on the evaluation, then the evaluation, itself, was to be considered part of the contract negotiation.
The problem with this reasoning is that it renders meaningless the professional competence exclusion noted above. Professional competence is a nearly universal measure on which employers base employment decisions. If every discussion of professional competence is to be considered a prelude to an employment-related decision, then it could always be discussed in private, under the trial judge's reasoning.
Interest in the case drew amicus briefs not just from the MNPA, but also from the Mass. Municipal Association, the Mass. Association of School Superintendents, and the Mass. Association of School Committees. You can read the briefs at the SJC's site and watch Monday's oral arguments via webcam.
Anti-SLAPP Case Comes Before SJC Monday
A case that could decide whether the Massachusetts anti-SLAPP statute applies to journalists comes up for argument Monday before the Supreme Judicial Court. The case, Fustolo v. Hollander, involves a libel lawsuit filed by real estate developer Steven C. Fustolo against Fredda Hollander, a reporter for a community newspaper in Boston's North End and a long-time community activist.
Hollander sought to have the lawsuit dismissed under the anti-SLAPP statute, which is designed to protect against the use of litigation to silence a person's "exercise of its right of petition." The right of petition refers to an individual's First Amendment right to address the government with regard to issues of public concern.
A Superior Court judge denied the motion. The judge concluded that Hollander had written the news stories at issue in the lawsuit not "on her own behalf as a citizen" but "in the role of a reporter paid and employed by the publisher of a newspaper." The ruling is at odds with another Superior Court case, Joyce v. Slager, which allowed a newspaper's motion to dismiss a libel case under the anti-SLAPP law.
Those interested in the case can watch the webcast of the arguments before the SJC. You can read the briefs filed by the parties here.
Hollander sought to have the lawsuit dismissed under the anti-SLAPP statute, which is designed to protect against the use of litigation to silence a person's "exercise of its right of petition." The right of petition refers to an individual's First Amendment right to address the government with regard to issues of public concern.
A Superior Court judge denied the motion. The judge concluded that Hollander had written the news stories at issue in the lawsuit not "on her own behalf as a citizen" but "in the role of a reporter paid and employed by the publisher of a newspaper." The ruling is at odds with another Superior Court case, Joyce v. Slager, which allowed a newspaper's motion to dismiss a libel case under the anti-SLAPP law.
Those interested in the case can watch the webcast of the arguments before the SJC. You can read the briefs filed by the parties here.
Monday, October 19, 2009
Debt to Town No Reason to Deny Records Request
Can a town deny a public-records request on the grounds that the requester still owes money for an earlier request?
No, according to a ruling made by Alan Cote, the Massachusetts supervisor of public records. As reported by the Brockton Enterprise, Cote has decided that Rockland Town Administrator Allan Chiocca was wrong to deny a resident's public records request for the reason that he still owed the town payment for past requests.
"You have failed to provide sufficient justification for withholding these records," Cote told the town administrator.
No, according to a ruling made by Alan Cote, the Massachusetts supervisor of public records. As reported by the Brockton Enterprise, Cote has decided that Rockland Town Administrator Allan Chiocca was wrong to deny a resident's public records request for the reason that he still owed the town payment for past requests.
"You have failed to provide sufficient justification for withholding these records," Cote told the town administrator.
Sunday, October 18, 2009
The Week's Open Meeting Law News
Some items in the news this week regarding the Massachusetts open meeting law:
- A Cape Cod Times editorial calls for the state legislature to put teeth in the open meeting and public records laws. "Pick up the phone and call your state senator and representative. Let them know that you demand good government that is answerable directly to the people and that you support real sanctions against those public officials who deliberately break the law."
- The Worcester Telegram & Gazette files a complaint alleging that the Charlton Board of Selectman violated the open meeting law in its performance evaluation of the town administrator.
- The Brockton Enterprise reports that the Rockland town counsel denies there is any validity to a selectman's complaint that a screening committee violated the open meeting law when it recommended a final candidate at its first public meeting.
Friday, October 16, 2009
Podcast: The FTC’s Blogger Guidelines
This week on the legal-affairs podcast Lawyer2Lawyer, we try to sort fact from fiction regarding the Federal Trade Commission's new guidelines on product endorsements and reviews by bloggers. The FTC wants bloggers to disclose free products or payments they receive from companies for reviewing their products. How far do the guidelines reach, what sorts of disclaimers do they require, and how will the FTC enforce them?
To help us sort through these questions, we are joined by two guests with expertise in this area: Eric P. Robinson, staff attorney at the Media Law Resource Center, a nonprofit information clearinghouse that monitors and promotes First Amendment rights in libel, privacy and related fields; and Barry J. Reingold, head of the marketing and advertising practice for the law firm Perkins Coie.
Listen to or download the show from the Legal Talk Network.
To help us sort through these questions, we are joined by two guests with expertise in this area: Eric P. Robinson, staff attorney at the Media Law Resource Center, a nonprofit information clearinghouse that monitors and promotes First Amendment rights in libel, privacy and related fields; and Barry J. Reingold, head of the marketing and advertising practice for the law firm Perkins Coie.
Listen to or download the show from the Legal Talk Network.
Monday, October 12, 2009
Jury Verdict in Noonan v. Staples
Remember Noonan v. Staples? That was the 1st Circuit decision I described as the most dangerous libel decision in decades. In it, the court upended the bedrock principle of libel law that truth is an absolute defense. It said that even a true statement can be subject to a libel lawsuit if it was said with actual malice.
At issue in the case was an e-mail sent by a Staples executive to some 1,500 employees about the termination of Alan Noonan, a Staples sales director. The e-mail said -- truthfully -- that Noonan was terminated after a company investigation determined that he had violated Staples' travel and expense policies.
The 1st Circuit remanded the case to the district court for trial. Reportedly, the trial is now complete and a jury last week rendered its verdict. The jury found no malice on the part of Staples and returned a verdict in the company's favor.
I learned this from National Law Journal reporter Tresa Baldas, who posted a report on the verdict this afternoon.
At issue in the case was an e-mail sent by a Staples executive to some 1,500 employees about the termination of Alan Noonan, a Staples sales director. The e-mail said -- truthfully -- that Noonan was terminated after a company investigation determined that he had violated Staples' travel and expense policies.
The 1st Circuit remanded the case to the district court for trial. Reportedly, the trial is now complete and a jury last week rendered its verdict. The jury found no malice on the part of Staples and returned a verdict in the company's favor.
I learned this from National Law Journal reporter Tresa Baldas, who posted a report on the verdict this afternoon.
Wednesday, October 07, 2009
Under Pressure, Selectmen Meet in Public -- Sort Of
The board of selectmen in Charlton, Mass., should be commended for conducting its evaluation of the town administrator in an open meeting. It did not have a lot of choice, as the Telegram & Gazette reports. Complaints filed by the newspaper against the town last year resulted in a ruling by the Worcester County district attorney that the selectmen violated the open meeting law in 2007 and 2008 when it conducted the administrator's evaluations behind closed doors.
One member of the board, however, was not comfortable with the idea of speaking in public about her unsatisfactory evaluation of the administrator. Selectman Kathleen Walker got clearance from the town counsel to meet privately with the administrator to discuss her evaluation.
One step forward, one step back.
One member of the board, however, was not comfortable with the idea of speaking in public about her unsatisfactory evaluation of the administrator. Selectman Kathleen Walker got clearance from the town counsel to meet privately with the administrator to discuss her evaluation.
One step forward, one step back.
Tuesday, October 06, 2009
Legislation Would Help Save the Paper Boy (and Girl)
Massachusetts state Sen. Stanley C. Rosenberg of Northampton said today he would file a bill to help save the jobs of newspaper carriers. His statement followed the announcement earlier in the day that Northampton's newspaper, the Daily Hampshire Gazette, and its sibling paper, the Greenfield Recorder, would end their long-standing custom of having boys and girls deliver the newspaper to neighborhood homes.
Rosenberg's announcement said that he began working on the bill after learning that state employment officials had begun classifying newspaper carriers as employees, instead of as independent contractors, thereby requiring newspaper companies to pay their unemployment insurance fees.
Rosenberg’s bill, which has yet to be filed, would more clearly define the role of news carriers within a newspaper company and exempt the companies from state unemployment fees, his announcement said.
Today's announcement from the Gazette said it would shift home newspaper delivery to a national distribution company effective Oct. 26.
"Massachusetts, in a couple of areas, is taking a hard look at independent contractors," Gazette Publisher Jim Foudy said in the article. "They've been making some statements, taking some actions. We believe they're going to say these people need to be employees."
"This is a business decision. We just realized we needed to move on this before we end up finding ourselves with enormous additional costs," Foudy said.
Rosenberg's announcement said that he began working on the bill after learning that state employment officials had begun classifying newspaper carriers as employees, instead of as independent contractors, thereby requiring newspaper companies to pay their unemployment insurance fees.
Rosenberg’s bill, which has yet to be filed, would more clearly define the role of news carriers within a newspaper company and exempt the companies from state unemployment fees, his announcement said.
"Newspapers are absolutely critical to the advancement of our democracy, and news boys and girls are a part of Americana that I, personally, can’t stand the thought of losing. How many of us first learned the value of work delivering newspapers? These jobs are important for our local young people, and adults alike, and I’m not willing to see them go to big corporations without a fight."Legislation to address this issue is badly needed. A 2004 change to Massachusetts law eliminated the traditional "right to control" test used to determine whether someone is an employee or an independent contractor. It was replaced with a new standard which required, among other things, that an independent contractor be providing a service that is "outside the usual course of the business of the employer." This makes virtually any freelancer an employee under the law if the freelancer's work has any relation to the business.
Today's announcement from the Gazette said it would shift home newspaper delivery to a national distribution company effective Oct. 26.
"Massachusetts, in a couple of areas, is taking a hard look at independent contractors," Gazette Publisher Jim Foudy said in the article. "They've been making some statements, taking some actions. We believe they're going to say these people need to be employees."
"This is a business decision. We just realized we needed to move on this before we end up finding ourselves with enormous additional costs," Foudy said.
Friday, September 11, 2009
Mass. Judge Slams Blogger's Special Treatment
A federal prosecutor's decision to let prominent political blogger Andrew Sullivan off the hook for a marijuana bust was condemned yesterday by a federal magistrate judge in Boston as unjustified favoritism. But finding that he was without power to override the prosecutor's decision, the magistrate judge dismissed the charges nonetheless. I have details in a post today at Legal Blog Watch.
Fellowships for Freelance Legal Journalists
Passing on the following announcement:
Syracuse University's S.I. Newhouse School of Public Communications will award four Carnegie/Newhouse School Legal Reporting Fellowships to support freelance journalists reporting on legal issues.
The $3,000 awards include paid student research assistants for each reporting fellow, which will give Newhouse students practical experience covering law and the courts. The fellowships are open to freelance journalists working in any medium with the intent of helping them pay out-of-pocket expenses.
"These days, freelancers covering legal issues need as much support as they can get," said Roy Gutterman, director of the Newhouse School’s Carnegie Legal Reporting Program, and an assistant professor of communications law and journalism. "Offering the public thorough, comprehensive coverage of legal issues is an important function of the press and we want to help those efforts."
Fellowship applications are available online at http://newhouse.syr.edu/legal. Application deadline is October 5. A panel of faculty members from the Newhouse School will choose the winners. Fellowship money and student research assistants will be available for the 2009-10 academic year.
Newhouse students will be invited to compete for the four research assistant positions, which carry a stipend. "Our students are the lifeblood of our university," Gutterman said. "Marrying up our students with members of the legal reporting press, provides a valuable outside-the-classroom experience."
The Carnegie/Newhouse School Legal Reporting Fellowships are part of the Newhouse School’s Carnegie Legal Reporting Program. Supported by a grant from the Carnegie Corporation of New York and its Carnegie Journalism Initiative, the program provides a number of services designed to teach students about the workings of the American legal system and the role of the news media in covering the law. Additional funding for this year’s fellowships is provided by IJPM.
For more information, contact Gutterman, (315) 443-3523 or rsgutter@syr.edu, or visit http://newhouse.syr.edu/legal.
Wednesday, September 09, 2009
SJC Hears Fair Report Case
The Supreme Judicial Court today heard oral arguments in Howell v. The Enterprise Publishing Co., a defamation case arising out of a series of newspaper articles regarding a town's termination of an employee. The case is particularly important because it could define the scope of the fair report privilege in Massachusetts. You can view a webcast of today's oral arguments at this page. That page also has links to the parties' briefs.
The SJC heard the case on further appellate review from a decision of the Appeals Court. The case involves allegations of defamation against a newspaper that accurately reported on findings made by officials in the town of Abington after conducting two investigatory hearings. The officials twice concluded that plaintiff Howell had used town computers to access images of a "pornographic nature." Even though the newspaper reported these findings accurately, the Appeals Court held that if a jury disagrees that the images were pornographic, the newspaper could be liable for defamation. This is a misapplication of the fair report privilege, which protects news outlets against claims for libel when they report information provided in official government documents or statements.
The SJC heard the case on further appellate review from a decision of the Appeals Court. The case involves allegations of defamation against a newspaper that accurately reported on findings made by officials in the town of Abington after conducting two investigatory hearings. The officials twice concluded that plaintiff Howell had used town computers to access images of a "pornographic nature." Even though the newspaper reported these findings accurately, the Appeals Court held that if a jury disagrees that the images were pornographic, the newspaper could be liable for defamation. This is a misapplication of the fair report privilege, which protects news outlets against claims for libel when they report information provided in official government documents or statements.
Thursday, September 03, 2009
One Town's 'Secret Government'
In all my years of tracking open meeting cases in Massachusetts, this one is clearly in the running for the prize for most outrageous. Reporting in The Salem News, writer Steve Landwehr describes the selectmen in the town of Hamilton as operating "a near 'secret government,' with selectmen privately discussing a wide range of personnel and policy issues that are not exempt from the requirements of the Open Meeting Law."
Exhibit No. 1: A series of secret meetings stretching over three months to discuss what the public should be told about two flat-screen TVs in the town's new public safety building. A rumor wase flying around town that the TVs were evidence seized by police in a criminal investigation. Even though the rumor was true, and even though the selectmen were warned that they should not discuss the issue in private, they continued to do so. It would be 18 months before the public would learn the truth -- and only then from an independent investigator.
In another example, selectmen repeatedly met privately to discuss various allegations of misconduct involving a police officer, without ever informing the officer. The open meeting law explicitly requires that discussions of an employee's "professional competence" be conducted in an open meeting. An employee's "reputation" and "character" may be discussed in a closed session, but only after notifying the employee and allowing the employee to attend the executive session and be represented by counsel.
The Salem News report describes other secret meetings in Hamilton. All tolled, it shows what appears to have been a flagrant disregard of the law.
Exhibit No. 1: A series of secret meetings stretching over three months to discuss what the public should be told about two flat-screen TVs in the town's new public safety building. A rumor wase flying around town that the TVs were evidence seized by police in a criminal investigation. Even though the rumor was true, and even though the selectmen were warned that they should not discuss the issue in private, they continued to do so. It would be 18 months before the public would learn the truth -- and only then from an independent investigator.
In another example, selectmen repeatedly met privately to discuss various allegations of misconduct involving a police officer, without ever informing the officer. The open meeting law explicitly requires that discussions of an employee's "professional competence" be conducted in an open meeting. An employee's "reputation" and "character" may be discussed in a closed session, but only after notifying the employee and allowing the employee to attend the executive session and be represented by counsel.
The Salem News report describes other secret meetings in Hamilton. All tolled, it shows what appears to have been a flagrant disregard of the law.
Monday, August 31, 2009
Monday, August 17, 2009
Podcast: 'Crowdsourcing' Patent Reviews
The U.S. Patent and Trademark Office is understaffed and overwhelmed. Could the answer to its problems lie in crowdsourcing the patent-review process? Could crowdsourcing result in better patents?
This week on the legal-affairs podcast Lawyer2Lawyer, we look at the Peer-to-Patent system, an innovative pilot project run jointly by the USPTO and the Center for Patent Innovations, a research and development arm of New York Law School's Institute for Information Law & Property. The project just completed its second year of operation and its future is now under review. It uses crowdsourcing and the power of the Internet at large to help vet applications for business-methods and software patents.
Joining us to discuss this experiment in crowdsourcing of patent review are two guests:
This week on the legal-affairs podcast Lawyer2Lawyer, we look at the Peer-to-Patent system, an innovative pilot project run jointly by the USPTO and the Center for Patent Innovations, a research and development arm of New York Law School's Institute for Information Law & Property. The project just completed its second year of operation and its future is now under review. It uses crowdsourcing and the power of the Internet at large to help vet applications for business-methods and software patents.
Joining us to discuss this experiment in crowdsourcing of patent review are two guests:
- Prof. Mark Webbink, executive director of the Center for Patent Innovations and the former senior vice president and general counsel at Red Hat, the premier Linux and open source vendor.
- Stephanie Scruggs, an intellectual-property partner in the Washington, D.C., office of Hanify & King, where she focuses on patent litigation, patent prosecution, and product clearance and patent validity opinions.
Thursday, July 30, 2009
Text of New Open Meeting Law
Contained within Chapter 28 of the Acts of 2009, signed into law by Gov. Patrick July 1, is a major overhaul of the Massachusetts open meeting law. Because the full bill is massive and addresses a range of matters relating to ethics and lobbying, I have extracted the portions relating to open meetings for ease of reference.
This new open meeting law takes effect in a year -- on July 1, 2010. This single law will replace the three different laws we now have for state meetings, county meetings, and municipal meetings. Following is the text of the new law:
OPEN MEETINGS
Section 18: As used in this section and sections 19 to 25, inclusive, the following words shall, unless the context clearly requires otherwise, have the following meanings:
"Deliberation", an oral or written communication through any medium, including electronic mail, between or among a quorum of a public body on any public business within its jurisdiction; provided, however, that “deliberation” shall not include the distribution of a meeting agenda, scheduling information or distribution of other procedural meeting or the distribution of reports or documents that may be discussed at a meeting, provided that no opinion of a member is expressed.
“Emergency”, a sudden, generally unexpected occurrence or set of circumstances demanding immediate action.
“Executive session”, any part of a meeting of a public body closed to the public for deliberation of certain matters.
“Intentional violation”, an act or omission by a public body or a member thereof, in knowing by violating the open meeting law.
“Meeting”, a deliberation by a public body with respect to any matter within the body’s jurisdiction; provided, however, “meeting” shall not include:
“Open meeting law”, sections 18 to 25, inclusive.
“Post notice”, to display conspicuously the written announcement of a meeting either in hard copy or electronic format.
“Preliminary screening”, the initial stage of screening applicants conducted by a committee or subcommittee of a public body solely for the purpose of providing to the public body a list of those applicants qualified for further consideration or interview.
“Public body”, a multiple-member board, commission, committee or subcommittee within the executive or legislative branch or within any county, district, city, region or town, however created, elected, appointed or otherwise constituted, established to serve a public purpose; provided, however, that the governing board of a local housing, redevelopment or other similar authority shall be deemed a local public body; provided, further, that the governing board or body of any other authority established by the general court to serve a public purpose in the commonwealth or any part thereof shall be deemed a state public body; provided, further, that “public body” shall not include the general court or the committees or recess commissions thereof, bodies of the judicial branch or bodies appointed by a constitutional officer solely for the purpose of advising a constitutional officer and shall not include the board of bank incorporation or the policyholders protective board; and provided further, that a subcommittee shall include any multiple-member body created to advise or make recommendations to a public body.
“Quorum”, a simple majority of the members of the public body, unless otherwise provided in a general or special law, executive order or other authorizing provision.
Section 19. (a) There shall be in the department of the attorney general a division of open government under the direction of a director of open government. The attorney general shall designate an assistant attorney general as the director of the open government division. The director may appoint and remove, subject to the approval of the attorney general, such expert, clerical and other assistants as the work of the division may require. The division shall perform the duties imposed upon the attorney general by the open meeting law, which may include participating, appearing and intervening in any administrative and judicial proceedings pertaining to the enforcement of the open meeting law. For the purpose of such participation, appearance, intervention and training authorized by this chapter the attorney general may expend such funds as may be appropriated therefor.
(b) The attorney general shall create and distribute educational materials and provide training to public bodies in order to foster awareness and compliance with the open meeting law. Open meeting law training may include, but shall not be limited to, instruction in:
The commission shall review issues relative to the open meeting law and shall submit to the attorney general recommendations for changes to the regulations, trainings, and educational initiatives relative to the open meeting law as it deems necessary and appropriate.
(d) The attorney general shall, not later than January 31, file annually with the commission a report providing information on the enforcement of the open meeting law during the preceding calendar year. The report shall include, but not be limited to:
(b) Except in an emergency, in addition to any notice otherwise required by law, a public body shall post notice of every meeting at least 48 hours prior to such meeting, excluding Saturdays, Sundays and legal holidays. In an emergency, a public body shall post notice as soon as reasonably possible prior to such meeting. Notice shall be printed in a legible, easily understandable format and shall contain the date, time and place of such meeting and a listing of topics that the chair reasonably anticipates will be discussed at the meeting.
(c) For meetings of a local public body, notice shall be filed with the municipal clerk and posted in a manner conspicuously visible to the public at all hours in or on the municipal building in which the clerk’s office is located.
For meetings of a regional or district public body, notice shall be filed and posted in each city or town within the region or district in the manner prescribed for local public bodies. For meetings of a regional school district, the secretary of the regional school district committee shall be considered to be its clerk and shall file notice with the clerk of each city or town within such district and shall post the notice in the manner prescribed for local public bodies. For meetings of a county public body, notice shall be filed in the office of the county commissioners and a copy of the notice shall be publicly posted in a manner conspicuously visible to the public at all hours in such place or places as the county commissioners shall designate for the purpose.
For meetings of a state public body, notice shall be filed with the attorney general by posting on a website in accordance with procedures established for this purpose.
The attorney general shall have the authority to prescribe or approve alternative methods of notice where the attorney general determines such alternative will afford more effective notice to the public.
(d) The attorney general may by regulation or letter ruling, authorize remote participation by members of a public body not present at the meeting location; provided, however, that the absent members and all persons present at the meeting location are clearly audible to each other; and provided, further, that a quorum of the body, including the chair, are present at the meeting location. Such authorized members may vote and shall not be deemed absent for the purposes of section 23D of chapter 39.
(e) After notifying the chair of the public body, any person may make a video or audio recording of an open session of a meeting of a public body, or may transmit the meeting through any medium, subject to reasonable requirements of the chair as to the number, placement and operation of equipment used so as not to interfere with the conduct of the meeting. At the beginning of the meeting the chair shall inform other attendees of any such recordings.
(f) No person shall address a meeting of a public body without permission of the chair, and all persons shall, at the request of the chair, be silent. No person shall disrupt the proceedings of a meeting of a public body. If, after clear warning from the chair, a person continues to disrupt the proceedings, the chair may order the person to withdraw from the meeting and if the person does not withdraw, the chair may authorize a constable or other officer to remove the person from the meeting.
(g) Within 2 weeks of qualification for office, all persons serving on a public body shall certify, on a form prescribed by the attorney general, the receipt of a copy of the open meeting law, regulations promulgated pursuant to section 25 and a copy of the educational materials prepared by the attorney general explaining the open meeting law and its application pursuant to section 19. Unless otherwise directed or approved by the attorney general, the appointing authority, city or town clerk or the executive director or other appropriate administrator of a state or regional body, or their designees, shall obtain such certification from each person upon entering service and shall retain it subject to the applicable records retention schedule where the body maintains its official records. The certification shall be evidence that the member of a public body has read and understands the requirements of the open meeting law and the consequences of violating it.
Section 21. (a) A public body may meet in executive session only for the following purposes:
(1) To discuss the reputation, character, physical condition or mental health, rather than professional competence, of an individual, or to discuss the discipline or dismissal of, or complaints or charges brought against, a public officer, employee, staff member or individual. The individual to be discussed in such executive session shall be notified in writing by the public body at least 48 hours prior to the proposed executive session; provided, however, that notification may be waived upon written agreement of the parties. A public body shall hold an open session if the individual involved requests that the session be open. If an executive session is held, such individual shall have the following rights:
2. To conduct strategy sessions in preparation for negotiations with nonunion personnel or to conduct collective bargaining sessions or contract negotiations with nonunion personnel;
3. To discuss strategy with respect to collective bargaining or litigation if an open meeting may have a detrimental effect on the bargaining or litigating position of the public body and the chair so declares;
4. To discuss the deployment of security personnel or devices, or strategies with respect thereto;
5. To investigate charges of criminal misconduct or to consider the filing of criminal complaints;
6. To consider the purchase, exchange, lease or value of real property if the chair declares that an open meeting may have a detrimental effect on the negotiating position of the public body;
7. To comply with, or act under the authority of, any general or special law or federal grant-in-aid requirements;
8. To consider or interview applicants for employment or appointment by a preliminary screening committee if the chair declares that 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, to consider and interview applicants who have passed a prior preliminary screening;
9. To meet or confer with a mediator, as defined in section 23C of chapter 233, with respect to any litigation or decision on any public business within its jurisdiction involving another party, group or entity, provided that:
(b) A public body may meet in closed session for 1 or more of the purposes enumerated in subsection (a) provided that:
(b) No vote taken at an open session shall be by secret ballot. Any vote taken at an executive session shall be recorded by roll call and entered into the minutes.
(c) Minutes of all open sessions shall be created and approved in a timely manner. The minutes of an open session, if they exist and whether approved or in draft form, shall be made available upon request by any person within 10 days.
(d) Documents and other exhibits, such as photographs, recordings or maps, used by the body at an open or executive session shall, along with the minutes, be part of the official record of the session.
(e) The minutes of any open session, the notes, recordings or other materials used in the preparation of such minutes and all documents and exhibits used at the session, shall be public records in their entirety and not exempt from disclosure pursuant to any of the exemptions under clause Twenty-sixth of section 7 of chapter 4. Notwithstanding this paragraph, the following materials shall be exempt from disclosure to the public as personnel information: (1) materials used in a performance evaluation of an individual bearing on his professional competence, provided they were not created by the members of the body for the purposes of the evaluation; and (2) materials used in deliberations about employment or appointment of individuals, including applications and supporting materials; provided, however, that any resume submitted by an applicant shall not be exempt.
(f) The minutes of any executive session, the notes, recordings or other materials used in the preparation of such minutes and all documents and exhibits used at the session, may be withheld from disclosure to the public in their entirety under subclause (a) of clause Twenty-sixth of section 7 of chapter 4, as long as publication may defeat the lawful purposes of the executive session, but no longer; provided, however, that the executive session was held in compliance with section 21.
When the purpose for which a valid executive session was held has been served, the minutes, preparatory materials and documents and exhibits of the session shall be disclosed unless the attorney-client privilege or 1 or more of the exemptions under said clause Twenty-sixth of said section 7 of said chapter 4 apply to withhold these records, or any portion thereof, from disclosure.
For purposes of this subsection, if an executive session is held pursuant to clause (2) or (3) of subsections (a) of section 21, then the minutes, preparatory materials and documents and exhibits used at the session may be withheld from disclosure to the public in their entirety, unless and until such time as a litigating, negotiating or bargaining position is no longer jeopardized by such disclosure, at which time they shall be disclosed unless the attorney-client privilege or 1 or more of the exemptions under said clause Twenty-sixth of said section 7 of said chapter 4 apply to withhold these records, or any portion thereof, from disclosure.
(g)(1) The public body, or its chair or designee, shall, at reasonable intervals, review the minutes of executive sessions to determine if the provisions of this subsection warrant continued non-disclosure. Such determination shall be announced at the body’s next meeting and such announcement shall be included in the minutes of that meeting.
(2) Upon request by any person to inspect or copy the minutes of an executive session or any portion thereof, the body shall respond to the request within 10 days following receipt and shall release any such minutes not covered by an exemption under subsection (f); provided, however, that if the body has not performed a review pursuant to paragraph (1), the public body shall perform the review and release the non-exempt minutes, or any portion thereof, not later than the body’s next meeting or 30 days, whichever first occurs. A public body shall not assess a fee for the time spent in its review.
Section 23. (a) Subject to appropriation, the attorney general shall interpret and enforce the open meeting law.
(b) At least 30 days prior to the filing of a complaint with the attorney general, the complainant shall file a written complaint with the public body, setting forth the circumstances which constitute the alleged violation and giving the body an opportunity to remedy the alleged violation; provided, however, that such complaint shall be filed within 30 days of the date of the alleged violation. The public body shall, within 14 business days of receipt of a complaint, send a copy of the complaint to the attorney general and notify the attorney general of any remedial action taken. Any remedial action taken by the public body in response to a complaint under this subsection shall not be admissible as evidence against the public body that a violation occurred in any later administrative or judicial proceeding relating to such alleged violation. The attorney general may authorize an extension of time to the public body for the purpose of taking remedial action upon the written request of the public body and a showing of good cause to grant the extension.
(c) Upon the receipt of a complaint by any person, the attorney general shall determine, in a timely manner, whether there has been a violation of the open meeting law. The attorney general may, and before imposing any civil penalty on a public body shall, hold a hearing on any such complaint. Following a determination that a violation has occurred, the attorney general shall determine whether the public body, 1 or more of the members, or both, are responsible and whether the violation was intentional or unintentional. Upon the finding of a violation, the attorney general may issue an order to:
(e) If any public body or member thereof shall fail to comply with the requirements set forth in any order issued by the attorney general, or shall fail to pay any civil penalty imposed within 21 days of the date of issuance of such order or within 30 days following the decision of the superior court if judicial review of such order has been timely sought, the attorney general may file an action to compel compliance. Such action shall be filed in Suffolk superior court with respect to state public bodies and, with respect to all other public bodies, in the superior court in any county in which the public body acts or meets. If such body or member has not timely sought judicial review of the order, such order shall not be open to review in an action to compel compliance.
(f) As an alternative to the procedure in subsection (b), the attorney general or 3 or more registered voters may initiate a civil action to enforce the open meeting law.
Any action under this subsection shall be filed in Suffolk superior court with respect to state public bodies and, with respect to all other public bodies, in the superior court in any county in which the public body acts or meets.
In any action filed pursuant to this subsection, in addition to all other remedies available to the superior court, in law or in equity, the court shall have all of the remedies set forth in subsection (b).
In any action filed under this subsection, the order of notice on the complaint shall be returnable not later than 10 days after the filing and 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; provided, however, that orders may be issued at any time on or after the filing of the complaint without notice when such order is necessary to fulfill the purposes of the open meeting law. In the hearing of any action under this subsection, the burden shall be on the respondent to show by a preponderance of the evidence that the action complained of in such complaint was in accordance with and authorized by the open meeting law; provided, however, that no civil penalty may be imposed on an individual absent proof that the action complained of violated the open meeting law.
(g) It shall be a defense to the imposition of a penalty that the public body, after full disclosure, acted in good faith compliance with the advice of the public body’s legal counsel.
(h) Payment of civil penalties under this section paid to or received by the attorney general shall be paid into the general fund of the commonwealth.
Section 24. (a) Whenever the attorney general has reasonable cause to believe that a person, including any public body and any other state, regional, county, municipal or other governmental official or entity, has violated the open meeting law, the attorney general may conduct an investigation to ascertain whether in fact such person has violated the open meeting law. Upon notification of an investigation, any person, public body or any other state, regional, county, municipal or other governmental official or entity who is the subject of an investigation, shall make all information necessary to conduct such investigation available to the attorney general. In the event that the person, public body or any other state, regional, county, municipal or other governmental official or entity being investigated does not voluntarily provide relevant information to the attorney general within 30 days of receiving notice of the investigation, the attorney general may: (1) take testimony under oath concerning such alleged violation of the open meeting law; (2) examine or cause to be examined any documentary material of whatever nature relevant to such alleged violation of the open meeting law; and (3) require attendance during such examination of documentary material of any person having knowledge of the documentary material and take testimony under oath or acknowledgment in respect of any such documentary material. Such testimony and examination shall take place in the county where such person resides or has a place of business or, if the parties consent or such person is a nonresident or has no place of business within the commonwealth, in Suffolk county.
(b) Notice of the time, place and cause of such taking of testimony, examination or attendance shall be given by the attorney general at least 10 days prior to the date of such taking of testimony or examination.
(c) Service of any such notice may be made by: (1) delivering a duly-executed copy to the person to be served or to a partner or to any officer or agent authorized by appointment or by law to receive service of process on behalf of such person; (2) delivering a duly-executed copy to the principal place of business in the commonwealth of the person to be served; or (3) mailing by registered or certified mail a duly-executed copy addressed to the person to be served at the principal place of business in the commonwealth or, if said person has no place of business in the commonwealth, to his principal office or place of business.
(d) Each such notice shall: (1) state the time and place for the taking of testimony or the examination and the name and address of each person to be examined, if known and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs; (2) state the statute and section thereof, the alleged violation of which is under investigation and the general subject matter of the investigation; (3) describe the class or classes of documentary material to be produced thereunder with reasonable specificity, so as fairly to indicate the material demanded; (4) prescribe a return date within which the documentary material is to be produced; and (5) identify the members of the attorney general’s staff to whom such documentary material is to be made available for inspection and copying.
(e) No such notice shall contain any requirement which would be unreasonable or improper if contained in a subpoena duces tecum issued by a court of the commonwealth or require the disclosure of any documentary material which would be privileged, or which for any other reason would not be required by a subpoena duces tecum issued by a court of the commonwealth.
(f) Any documentary material or other information produced by any person pursuant to this section shall not, unless otherwise ordered by a court of the commonwealth for good cause shown, be disclosed to any person other than the authorized agent or representative of the attorney general, unless with the consent of the person producing the same; provided, however, that such material or information may be disclosed by the attorney general in court pleadings or other papers filed in court.
(g) At any time prior to the date specified in the notice, or within 21 days after the notice has been served, whichever period is shorter, the court may, upon motion for good cause shown, extend such reporting date or modify or set aside such demand or grant a protective order in accordance with the standards set forth in Rule 26(c) of the Massachusetts Rules of Civil Procedure. The motion may be filed in the superior court of the county in which the person served resides or has his usual place of business or in Suffolk county. This section shall not be applicable to any criminal proceeding nor shall information obtained under the authority of this section be admissible in evidence in any criminal prosecution for substantially identical transactions.
Section 25. (a) The attorney general shall have the authority to promulgate rules and regulations to carry out enforcement of the open meeting law.
(b) The attorney general shall have the authority to interpret the open meeting law and to issue written letter rulings or advisory opinions according to rules established under this section.
This new open meeting law takes effect in a year -- on July 1, 2010. This single law will replace the three different laws we now have for state meetings, county meetings, and municipal meetings. Following is the text of the new law:
OPEN MEETINGS
Section 18: As used in this section and sections 19 to 25, inclusive, the following words shall, unless the context clearly requires otherwise, have the following meanings:
"Deliberation", an oral or written communication through any medium, including electronic mail, between or among a quorum of a public body on any public business within its jurisdiction; provided, however, that “deliberation” shall not include the distribution of a meeting agenda, scheduling information or distribution of other procedural meeting or the distribution of reports or documents that may be discussed at a meeting, provided that no opinion of a member is expressed.
“Emergency”, a sudden, generally unexpected occurrence or set of circumstances demanding immediate action.
“Executive session”, any part of a meeting of a public body closed to the public for deliberation of certain matters.
“Intentional violation”, an act or omission by a public body or a member thereof, in knowing by violating the open meeting law.
“Meeting”, a deliberation by a public body with respect to any matter within the body’s jurisdiction; provided, however, “meeting” shall not include:
- (a) an on-site inspection of a project or program, so long as the members do not deliberate;
(b) attendance by a quorum of a public body at a public or private gathering, including a conference or training program or a media, social or other event, so long as the members do not deliberate;
(c) attendance by a quorum of a public body at a meeting of another public body that has complied with the notice requirements of the open meeting law, so long as the visiting members communicate only by open participation in the meeting on those matters under discussion by the host body and do not deliberate;
(d) a meeting of a quasi-judicial board or commission held for the sole purpose of making a decision required in an adjudicatory proceeding brought before it; or
(e) a session of a town meeting convened under section 10 of chapter 39 which would include the attendance by a quorum of a public body at any such session.
“Open meeting law”, sections 18 to 25, inclusive.
“Post notice”, to display conspicuously the written announcement of a meeting either in hard copy or electronic format.
“Preliminary screening”, the initial stage of screening applicants conducted by a committee or subcommittee of a public body solely for the purpose of providing to the public body a list of those applicants qualified for further consideration or interview.
“Public body”, a multiple-member board, commission, committee or subcommittee within the executive or legislative branch or within any county, district, city, region or town, however created, elected, appointed or otherwise constituted, established to serve a public purpose; provided, however, that the governing board of a local housing, redevelopment or other similar authority shall be deemed a local public body; provided, further, that the governing board or body of any other authority established by the general court to serve a public purpose in the commonwealth or any part thereof shall be deemed a state public body; provided, further, that “public body” shall not include the general court or the committees or recess commissions thereof, bodies of the judicial branch or bodies appointed by a constitutional officer solely for the purpose of advising a constitutional officer and shall not include the board of bank incorporation or the policyholders protective board; and provided further, that a subcommittee shall include any multiple-member body created to advise or make recommendations to a public body.
“Quorum”, a simple majority of the members of the public body, unless otherwise provided in a general or special law, executive order or other authorizing provision.
Section 19. (a) There shall be in the department of the attorney general a division of open government under the direction of a director of open government. The attorney general shall designate an assistant attorney general as the director of the open government division. The director may appoint and remove, subject to the approval of the attorney general, such expert, clerical and other assistants as the work of the division may require. The division shall perform the duties imposed upon the attorney general by the open meeting law, which may include participating, appearing and intervening in any administrative and judicial proceedings pertaining to the enforcement of the open meeting law. For the purpose of such participation, appearance, intervention and training authorized by this chapter the attorney general may expend such funds as may be appropriated therefor.
(b) The attorney general shall create and distribute educational materials and provide training to public bodies in order to foster awareness and compliance with the open meeting law. Open meeting law training may include, but shall not be limited to, instruction in:
- (1) the general background of the legal requirements for the open meeting law;
(2) applicability of sections 18 to 25, inclusive, to governmental bodies;
(3) the role of the attorney general in enforcing the open meeting law; and
(4) penalties and other consequences for failure to comply with this chapter.
The commission shall review issues relative to the open meeting law and shall submit to the attorney general recommendations for changes to the regulations, trainings, and educational initiatives relative to the open meeting law as it deems necessary and appropriate.
(d) The attorney general shall, not later than January 31, file annually with the commission a report providing information on the enforcement of the open meeting law during the preceding calendar year. The report shall include, but not be limited to:
- (1) the number of open meeting law complaints received by the attorney general;
(2) the number of hearings convened as the result of open meeting law complaints by the attorney general;
(3) a summary of the determinations of violations made by the attorney general;
(4) a summary of the orders issued as the result of the determination of an open meeting law violation by the attorney general;
(5) an accounting of the fines obtained by the attorney general as the result of open meeting law enforcement actions;
(6) the number of actions filed in superior court seeking relief from an order of the attorney general; and
(7) any additional information relevant to the administration and enforcement of the open meeting law that the attorney general deems appropriate.
(b) Except in an emergency, in addition to any notice otherwise required by law, a public body shall post notice of every meeting at least 48 hours prior to such meeting, excluding Saturdays, Sundays and legal holidays. In an emergency, a public body shall post notice as soon as reasonably possible prior to such meeting. Notice shall be printed in a legible, easily understandable format and shall contain the date, time and place of such meeting and a listing of topics that the chair reasonably anticipates will be discussed at the meeting.
(c) For meetings of a local public body, notice shall be filed with the municipal clerk and posted in a manner conspicuously visible to the public at all hours in or on the municipal building in which the clerk’s office is located.
For meetings of a regional or district public body, notice shall be filed and posted in each city or town within the region or district in the manner prescribed for local public bodies. For meetings of a regional school district, the secretary of the regional school district committee shall be considered to be its clerk and shall file notice with the clerk of each city or town within such district and shall post the notice in the manner prescribed for local public bodies. For meetings of a county public body, notice shall be filed in the office of the county commissioners and a copy of the notice shall be publicly posted in a manner conspicuously visible to the public at all hours in such place or places as the county commissioners shall designate for the purpose.
For meetings of a state public body, notice shall be filed with the attorney general by posting on a website in accordance with procedures established for this purpose.
The attorney general shall have the authority to prescribe or approve alternative methods of notice where the attorney general determines such alternative will afford more effective notice to the public.
(d) The attorney general may by regulation or letter ruling, authorize remote participation by members of a public body not present at the meeting location; provided, however, that the absent members and all persons present at the meeting location are clearly audible to each other; and provided, further, that a quorum of the body, including the chair, are present at the meeting location. Such authorized members may vote and shall not be deemed absent for the purposes of section 23D of chapter 39.
(e) After notifying the chair of the public body, any person may make a video or audio recording of an open session of a meeting of a public body, or may transmit the meeting through any medium, subject to reasonable requirements of the chair as to the number, placement and operation of equipment used so as not to interfere with the conduct of the meeting. At the beginning of the meeting the chair shall inform other attendees of any such recordings.
(f) No person shall address a meeting of a public body without permission of the chair, and all persons shall, at the request of the chair, be silent. No person shall disrupt the proceedings of a meeting of a public body. If, after clear warning from the chair, a person continues to disrupt the proceedings, the chair may order the person to withdraw from the meeting and if the person does not withdraw, the chair may authorize a constable or other officer to remove the person from the meeting.
(g) Within 2 weeks of qualification for office, all persons serving on a public body shall certify, on a form prescribed by the attorney general, the receipt of a copy of the open meeting law, regulations promulgated pursuant to section 25 and a copy of the educational materials prepared by the attorney general explaining the open meeting law and its application pursuant to section 19. Unless otherwise directed or approved by the attorney general, the appointing authority, city or town clerk or the executive director or other appropriate administrator of a state or regional body, or their designees, shall obtain such certification from each person upon entering service and shall retain it subject to the applicable records retention schedule where the body maintains its official records. The certification shall be evidence that the member of a public body has read and understands the requirements of the open meeting law and the consequences of violating it.
Section 21. (a) A public body may meet in executive session only for the following purposes:
(1) To discuss the reputation, character, physical condition or mental health, rather than professional competence, of an individual, or to discuss the discipline or dismissal of, or complaints or charges brought against, a public officer, employee, staff member or individual. The individual to be discussed in such executive session shall be notified in writing by the public body at least 48 hours prior to the proposed executive session; provided, however, that notification may be waived upon written agreement of the parties. A public body shall hold an open session if the individual involved requests that the session be open. If an executive session is held, such individual shall have the following rights:
- i. to be present at such executive session during deliberations which involve that individual;
ii. to have counsel or a representative of his own choosing present and attending for the purpose of advising the individual and not for the purpose of active participation in the executive session;
iii. to speak on his own behalf; and
iv. to cause an independent record to be created of said executive session by audio-recording or transcription, at the individual’s expense.
2. To conduct strategy sessions in preparation for negotiations with nonunion personnel or to conduct collective bargaining sessions or contract negotiations with nonunion personnel;
3. To discuss strategy with respect to collective bargaining or litigation if an open meeting may have a detrimental effect on the bargaining or litigating position of the public body and the chair so declares;
4. To discuss the deployment of security personnel or devices, or strategies with respect thereto;
5. To investigate charges of criminal misconduct or to consider the filing of criminal complaints;
6. To consider the purchase, exchange, lease or value of real property if the chair declares that an open meeting may have a detrimental effect on the negotiating position of the public body;
7. To comply with, or act under the authority of, any general or special law or federal grant-in-aid requirements;
8. To consider or interview applicants for employment or appointment by a preliminary screening committee if the chair declares that 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, to consider and interview applicants who have passed a prior preliminary screening;
9. To meet or confer with a mediator, as defined in section 23C of chapter 233, with respect to any litigation or decision on any public business within its jurisdiction involving another party, group or entity, provided that:
- (i) any decision to participate in mediation shall be made in an open session and the parties, issues involved and purpose of the mediation shall be disclosed; and
(ii) no action shall be taken by any public body with respect to those issues which are the subject of the mediation without deliberation and approval for such action at an open session; or
(b) A public body may meet in closed session for 1 or more of the purposes enumerated in subsection (a) provided that:
- 1. the body has first convened in an open session pursuant to section 21;
2. a majority of members of the body have voted to go into executive session and the vote of each member is recorded by roll call and entered into the minutes;
3. before the executive session, the chair shall state the purpose for the executive session, stating all subjects that may be revealed without compromising the purpose for which the executive session was called;
4. the chair shall publicly announce whether the open session will reconvene at the conclusion of the executive session; and
5. accurate records of the executive session shall be maintained pursuant to section 23.
(b) No vote taken at an open session shall be by secret ballot. Any vote taken at an executive session shall be recorded by roll call and entered into the minutes.
(c) Minutes of all open sessions shall be created and approved in a timely manner. The minutes of an open session, if they exist and whether approved or in draft form, shall be made available upon request by any person within 10 days.
(d) Documents and other exhibits, such as photographs, recordings or maps, used by the body at an open or executive session shall, along with the minutes, be part of the official record of the session.
(e) The minutes of any open session, the notes, recordings or other materials used in the preparation of such minutes and all documents and exhibits used at the session, shall be public records in their entirety and not exempt from disclosure pursuant to any of the exemptions under clause Twenty-sixth of section 7 of chapter 4. Notwithstanding this paragraph, the following materials shall be exempt from disclosure to the public as personnel information: (1) materials used in a performance evaluation of an individual bearing on his professional competence, provided they were not created by the members of the body for the purposes of the evaluation; and (2) materials used in deliberations about employment or appointment of individuals, including applications and supporting materials; provided, however, that any resume submitted by an applicant shall not be exempt.
(f) The minutes of any executive session, the notes, recordings or other materials used in the preparation of such minutes and all documents and exhibits used at the session, may be withheld from disclosure to the public in their entirety under subclause (a) of clause Twenty-sixth of section 7 of chapter 4, as long as publication may defeat the lawful purposes of the executive session, but no longer; provided, however, that the executive session was held in compliance with section 21.
When the purpose for which a valid executive session was held has been served, the minutes, preparatory materials and documents and exhibits of the session shall be disclosed unless the attorney-client privilege or 1 or more of the exemptions under said clause Twenty-sixth of said section 7 of said chapter 4 apply to withhold these records, or any portion thereof, from disclosure.
For purposes of this subsection, if an executive session is held pursuant to clause (2) or (3) of subsections (a) of section 21, then the minutes, preparatory materials and documents and exhibits used at the session may be withheld from disclosure to the public in their entirety, unless and until such time as a litigating, negotiating or bargaining position is no longer jeopardized by such disclosure, at which time they shall be disclosed unless the attorney-client privilege or 1 or more of the exemptions under said clause Twenty-sixth of said section 7 of said chapter 4 apply to withhold these records, or any portion thereof, from disclosure.
(g)(1) The public body, or its chair or designee, shall, at reasonable intervals, review the minutes of executive sessions to determine if the provisions of this subsection warrant continued non-disclosure. Such determination shall be announced at the body’s next meeting and such announcement shall be included in the minutes of that meeting.
(2) Upon request by any person to inspect or copy the minutes of an executive session or any portion thereof, the body shall respond to the request within 10 days following receipt and shall release any such minutes not covered by an exemption under subsection (f); provided, however, that if the body has not performed a review pursuant to paragraph (1), the public body shall perform the review and release the non-exempt minutes, or any portion thereof, not later than the body’s next meeting or 30 days, whichever first occurs. A public body shall not assess a fee for the time spent in its review.
Section 23. (a) Subject to appropriation, the attorney general shall interpret and enforce the open meeting law.
(b) At least 30 days prior to the filing of a complaint with the attorney general, the complainant shall file a written complaint with the public body, setting forth the circumstances which constitute the alleged violation and giving the body an opportunity to remedy the alleged violation; provided, however, that such complaint shall be filed within 30 days of the date of the alleged violation. The public body shall, within 14 business days of receipt of a complaint, send a copy of the complaint to the attorney general and notify the attorney general of any remedial action taken. Any remedial action taken by the public body in response to a complaint under this subsection shall not be admissible as evidence against the public body that a violation occurred in any later administrative or judicial proceeding relating to such alleged violation. The attorney general may authorize an extension of time to the public body for the purpose of taking remedial action upon the written request of the public body and a showing of good cause to grant the extension.
(c) Upon the receipt of a complaint by any person, the attorney general shall determine, in a timely manner, whether there has been a violation of the open meeting law. The attorney general may, and before imposing any civil penalty on a public body shall, hold a hearing on any such complaint. Following a determination that a violation has occurred, the attorney general shall determine whether the public body, 1 or more of the members, or both, are responsible and whether the violation was intentional or unintentional. Upon the finding of a violation, the attorney general may issue an order to:
- (1) compel immediate and future compliance with the open meeting law;
(2) compel attendance at a training session authorized by the attorney general;
(3) nullify in whole or in part any action taken at the meeting;
(4) impose a civil penalty upon the public body of not more than $1,000 for each intentional violation;
(5) reinstate an employee without loss of compensation, seniority, tenure or other benefits;
(6) compel that minutes, records or other materials be made public; or
(7) prescribe other appropriate action.
(e) If any public body or member thereof shall fail to comply with the requirements set forth in any order issued by the attorney general, or shall fail to pay any civil penalty imposed within 21 days of the date of issuance of such order or within 30 days following the decision of the superior court if judicial review of such order has been timely sought, the attorney general may file an action to compel compliance. Such action shall be filed in Suffolk superior court with respect to state public bodies and, with respect to all other public bodies, in the superior court in any county in which the public body acts or meets. If such body or member has not timely sought judicial review of the order, such order shall not be open to review in an action to compel compliance.
(f) As an alternative to the procedure in subsection (b), the attorney general or 3 or more registered voters may initiate a civil action to enforce the open meeting law.
Any action under this subsection shall be filed in Suffolk superior court with respect to state public bodies and, with respect to all other public bodies, in the superior court in any county in which the public body acts or meets.
In any action filed pursuant to this subsection, in addition to all other remedies available to the superior court, in law or in equity, the court shall have all of the remedies set forth in subsection (b).
In any action filed under this subsection, the order of notice on the complaint shall be returnable not later than 10 days after the filing and 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; provided, however, that orders may be issued at any time on or after the filing of the complaint without notice when such order is necessary to fulfill the purposes of the open meeting law. In the hearing of any action under this subsection, the burden shall be on the respondent to show by a preponderance of the evidence that the action complained of in such complaint was in accordance with and authorized by the open meeting law; provided, however, that no civil penalty may be imposed on an individual absent proof that the action complained of violated the open meeting law.
(g) It shall be a defense to the imposition of a penalty that the public body, after full disclosure, acted in good faith compliance with the advice of the public body’s legal counsel.
(h) Payment of civil penalties under this section paid to or received by the attorney general shall be paid into the general fund of the commonwealth.
Section 24. (a) Whenever the attorney general has reasonable cause to believe that a person, including any public body and any other state, regional, county, municipal or other governmental official or entity, has violated the open meeting law, the attorney general may conduct an investigation to ascertain whether in fact such person has violated the open meeting law. Upon notification of an investigation, any person, public body or any other state, regional, county, municipal or other governmental official or entity who is the subject of an investigation, shall make all information necessary to conduct such investigation available to the attorney general. In the event that the person, public body or any other state, regional, county, municipal or other governmental official or entity being investigated does not voluntarily provide relevant information to the attorney general within 30 days of receiving notice of the investigation, the attorney general may: (1) take testimony under oath concerning such alleged violation of the open meeting law; (2) examine or cause to be examined any documentary material of whatever nature relevant to such alleged violation of the open meeting law; and (3) require attendance during such examination of documentary material of any person having knowledge of the documentary material and take testimony under oath or acknowledgment in respect of any such documentary material. Such testimony and examination shall take place in the county where such person resides or has a place of business or, if the parties consent or such person is a nonresident or has no place of business within the commonwealth, in Suffolk county.
(b) Notice of the time, place and cause of such taking of testimony, examination or attendance shall be given by the attorney general at least 10 days prior to the date of such taking of testimony or examination.
(c) Service of any such notice may be made by: (1) delivering a duly-executed copy to the person to be served or to a partner or to any officer or agent authorized by appointment or by law to receive service of process on behalf of such person; (2) delivering a duly-executed copy to the principal place of business in the commonwealth of the person to be served; or (3) mailing by registered or certified mail a duly-executed copy addressed to the person to be served at the principal place of business in the commonwealth or, if said person has no place of business in the commonwealth, to his principal office or place of business.
(d) Each such notice shall: (1) state the time and place for the taking of testimony or the examination and the name and address of each person to be examined, if known and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs; (2) state the statute and section thereof, the alleged violation of which is under investigation and the general subject matter of the investigation; (3) describe the class or classes of documentary material to be produced thereunder with reasonable specificity, so as fairly to indicate the material demanded; (4) prescribe a return date within which the documentary material is to be produced; and (5) identify the members of the attorney general’s staff to whom such documentary material is to be made available for inspection and copying.
(e) No such notice shall contain any requirement which would be unreasonable or improper if contained in a subpoena duces tecum issued by a court of the commonwealth or require the disclosure of any documentary material which would be privileged, or which for any other reason would not be required by a subpoena duces tecum issued by a court of the commonwealth.
(f) Any documentary material or other information produced by any person pursuant to this section shall not, unless otherwise ordered by a court of the commonwealth for good cause shown, be disclosed to any person other than the authorized agent or representative of the attorney general, unless with the consent of the person producing the same; provided, however, that such material or information may be disclosed by the attorney general in court pleadings or other papers filed in court.
(g) At any time prior to the date specified in the notice, or within 21 days after the notice has been served, whichever period is shorter, the court may, upon motion for good cause shown, extend such reporting date or modify or set aside such demand or grant a protective order in accordance with the standards set forth in Rule 26(c) of the Massachusetts Rules of Civil Procedure. The motion may be filed in the superior court of the county in which the person served resides or has his usual place of business or in Suffolk county. This section shall not be applicable to any criminal proceeding nor shall information obtained under the authority of this section be admissible in evidence in any criminal prosecution for substantially identical transactions.
Section 25. (a) The attorney general shall have the authority to promulgate rules and regulations to carry out enforcement of the open meeting law.
(b) The attorney general shall have the authority to interpret the open meeting law and to issue written letter rulings or advisory opinions according to rules established under this section.
Two Distortions of the Open Meeting Law
How's that old saying go about the devil quoting the Bible for his own ends? The same, it seems, can be said about public officials and the open meeting law, as two items in the news today illustrate.
First is a story from the Worcester Telegram about the Dudley Board of Selectmen's decision to reprimand the town's fire chief for supposedly violating the open meeting law. Did he violate the law by holding a secret meeting? No, the selectmen claim he violated the law by being open about what happened at a meeting. Seems the selectmen insisted in meeting in private to discuss the chief's contract, even though the chief wanted the meeting to be public. After the meeting, he committed the unpardonable sin of revealing some of the selectmen's concerns about his performance. For this, he has been reprimanded.
There may be reasons why the chief should not have spoken in public about what transpired at the meeting. But let's not blame the open meeting law. The law is designed to promote openness, not prevent it. In no way, shape or form did the chief's public comments after a meeting held to discuss his contract constitute an open meeting violation.
Today's other misreading of the open meeting law comes via Wicked Local Arlington, which reports that the School Committee has voted to hold a private meeting with the interim superintendent to decide whether to interview her for the permanent position. When asked what possible justification the School Committee might have for such a private meeting, the chairman said "there's a gray area" that would allow this. Apparently, that's a new exception to the open meeting law, because it sure does not fall under any exception I've read in the law.
First is a story from the Worcester Telegram about the Dudley Board of Selectmen's decision to reprimand the town's fire chief for supposedly violating the open meeting law. Did he violate the law by holding a secret meeting? No, the selectmen claim he violated the law by being open about what happened at a meeting. Seems the selectmen insisted in meeting in private to discuss the chief's contract, even though the chief wanted the meeting to be public. After the meeting, he committed the unpardonable sin of revealing some of the selectmen's concerns about his performance. For this, he has been reprimanded.
There may be reasons why the chief should not have spoken in public about what transpired at the meeting. But let's not blame the open meeting law. The law is designed to promote openness, not prevent it. In no way, shape or form did the chief's public comments after a meeting held to discuss his contract constitute an open meeting violation.
Today's other misreading of the open meeting law comes via Wicked Local Arlington, which reports that the School Committee has voted to hold a private meeting with the interim superintendent to decide whether to interview her for the permanent position. When asked what possible justification the School Committee might have for such a private meeting, the chairman said "there's a gray area" that would allow this. Apparently, that's a new exception to the open meeting law, because it sure does not fall under any exception I've read in the law.
Subscribe to:
Posts (Atom)