Open Meetings

Access to Public Meetings
By Jack Authelet

You are on assignment and about to enter a meeting when a public official steps forward to close the door, stating the meeting is not public.

The only reason the conversation continues is that you have stuck your foot in the door while you desperately search for some basis on which to hang your case for a right of access.

What happens in the next few minutes determines whether or not you can complete your assignment but you have the certain knowledge that can only happen if they open the door, and if you withdraw your foot without winning the battle, the opportunity to bring the public a blow-by-blow account of what happens in that meeting will be lost -- forever.

If the closing of the meeting was improper, there will be an opportunity to report on the impropriety and say what bad people those public officials are, but the real news story -- what went on behind closed doors -- was lost.

The purpose of this presentation on Access to Public Meetings is to familiarize you with the law, offering explanations of its application , including references to case law which establishes how court precedent will deal with the issue when challenged.

This presentation will also help you to understand the relationship between the establishing of a committee and its responsibilities under the Open Meeting Law (OML). As pointed out in Notes 9 and 10, it depends on who created the subcommittee as to its responsibilities under the law.

The text also stresses the importance of questioning the application of the law. In almost every instance, executive sessions may be held if specific conditions are met, but such sessions are not mandatory. It is always discretionary with the governmental body to determine that even though a closed session is permitted under the law, is there any harm to keeping it open.

The answer cuts both ways, but the question is seldom asked, either by public officials or the media. But it should be.

I know from personal experience that when negotiations are held in the open, both sides come in with much more reasonable proposals right from the start, eliminating weeks of posturing behind closed doors over outlandish demands neither side expects to win. The process is much more efficient and honest, and one in which the public can have confidence.

Doors are frequently closed to meetings for no stronger reason than it is allowed, but there is no genuine need for the secrecy and, officials should be reminded, once the need for secrecy evaporates, minutes have to be released. So virtually nothing remains secret forever.

Closed doors may give public officials some sense of comfort, but they do little for public confidence.

Elected officials should be reminded that they serve with the consent of the governed, but they serve effectively with the confidence of the governed. And closed doors do not build confidence.

Beyond the practical implications of openness, we have a greater responsibility. Our Founding Fathers, when establishing a new order, wanted a government of laws, not of men. And they believed, with a passion, that informed people are capable of governing themselves. If the people have a free flow of information about their government, they reasoned, they would be able to make informed decisions about governing themselves through electing leaders and making laws.

To that end, they established a press that would be free from interference from that government, that the free flow of information would be available to the people.

This nation established a free press so we would serve as part of the checks and balances on government, not so we could. To do this effectively, the doors to government have to remain open, and we have a responsibility to be an advocate for the public on access issues.

The following presentation should provide the tools necessary to adequately represent the public on issues of Public Access to Meetings.

Definitions
Section 23A. The following terms as used in sections twenty-three B and twenty-three C shall have the following meanings:

"Deliberations," a verbal exchange between a quorum of members of a governmental body attempting to arrive at a decision on any public business within its jurisdiction

"Emergency," a sudden, generally unexpected occurrence or set of circumstances demanding immediate action.

Note 1: "Generally unexpected" has been read to rule out "emergencies" which a well intentioned board could have anticipated and avoided. Also, the demand for immediate action must be to advance the public interest, not for personal convenience.

"Executive session," any meeting of a governmental body which is closed to certain persons for deliberation on certain matters.

"Governmental body," every board, commission, committee or subcommittee of any district, city, region or town, however elected, appointed or otherwise constituted and the governing board of a local housing, redevelopment or similar authority; provided, however, that this definition shall not include a town meeting.

"Made public," when the records of an executive session have been approved by the members of the respective governmental body attending such session for release to the public and notice of such approval has been entered into the records of such body.

Note 2: Charges against public employees may be heard in executive session, but once a decision is made, the minutes become public. See note under (2) (c)

Note 3: It is possible to make part of the minutes public while continuing to keep secret certain details for which the need for privacy remains.

Note 4: Those present during an executive session are bound by law to maintain the secrecy of what occurred until the decision is made to make the record of the executive session public.

G. L. c 268A s 23 (c) (2)

"Meeting," any corporal convening and deliberation of a governmental body for which a quorum is required in order to make a decision at which any public business or public policy matter over which the governmental body has supervision, control, jurisdiction or advisory power is discussed or considered; but shall not include any on-site inspection of any project or program.

"Quorum," a simple majority of a governmental body unless otherwise defined by a constitution, charter, rule or law applicable to such governing body.

Meetings of Governmental Bodies
Open Meetings. All meetings of a governmental body shall be open to the public and any person shall be permitted to attend any meeting except as otherwise provided by this section.

Note 5: "Any person" clearly includes non-residents and non-voters.

Note 6: Not every public meeting is a public hearing. People do not have the same legal right to address the governmental body during its meeting as during a public hearing. The body should make it clear to those in attendance whether the session is a hearing or a meeting. At the end of a public hearing, the board is permitted to conduct a public meeting to deliberate and decide the matter, and should not allow others to address the body without reopening the hearing.

Yaro v. Board of Appeals of Newburyport 10Mass. App. Ct. 587 (1980)

Note 7: Discussions which include a majority of the governmental body on a matter of public business (which cannot be acted upon except by a majority) are meetings, even if no votes are taken or decisions are made.

Gerstein v. Superintendent Search Screening Committee 405 Mass. 465 (1989)

Note 8: Conducting a closed session (or meeting without public notice) to prepare members for an open meeting is improper.

Attorney General v. School Committee of Taunton 7 Mass. App. Ct. 226 (1979)

Note 9: A governmental body (such as a School Committee, Board of Selectmen, Finance Committee, etc.) which creates a subcommittee or delegates some of its duties or responsibilities to another body of its selection has created a subcommittee or new governmental body which is subject to the requirements of the open meeting law.

Connelly v. School Committee of Hanover 409 Mass. 232 (1991)

Note 10: However, a subcommittee created by a non-governmental body (such as the Town Administrator, Superintendent of Schools, etc.) is not subject to the open meeting law. The Town Administrator or School Superintendent are empowered to act individually on a number of matters, and to delegate tasks to a subcommittee which the individuals could have performed privately (such as screening candidates or reviewing data) does not fall under the requirements of the open meeting law.

Basis for deliberations. No quorum of a governmental body shall meet in private for the purpose of deciding on or deliberating toward a decision on any matter except as provided by this section.

Executive sessions. No executive session shall be held until the governmental body has first convened in an open session for which notice has been given, a majority of the members have voted to go into executive session and the vote of each member is recorded on a roll call vote and entered into the minutes, the presiding officer has cited the purpose of an executive session, and the presiding officer has stated before the executive session if the governmental body will reconvene after the executive session.

Note 10a: If no one in attendnace objects to the prcedure being followed by a governmental body which has decided to go into executive session for a valid purpose, the court will not be required to invalidate the executive session even if a law suit is begun promptly, i. e. within 21 days.

Ghiglione v. School Committeeof Southbridge 376 Mass. 70 (1978)

Kurlander v. School Committee of Williamstown, 16 Mass. App. Ct. 350 (1983)

Nothing except the limitation contained in this section shall be construed to prevent the governmental body from holding an executive session after an open meeting has been convened and a recorded vote has been taken to hold an executive session. Executive sessions may be held only for the following purposes:

(1) To discuss the reputation, character, physical condition or mental health rather than the professional competence (emphasis added) of an individual, provided that the individual involved in such executive session has been notified in writing by the governmental body, at least forty-eight hours prior to the proposed executive session. Notification may be waived upon agreement of the parties. A governmental body shall hold an open meeting if the individual involved requests that the meeting be open. If an executive session is held, such individual shall have the following rights:

(a) to be present at such executive session during discussions or considerations which involve that individual.

(b) to have counsel or a representative of his own choosing present and attending for the purpose of advising said individual and not for the purpose of active participation in said executive session.

Note 11: The open meeting law permits (but does not require) a governmental body to meet in executive session when it discusses an individual's personal (not professional) reputation, character, or physical or mental health, but no closed session can be held without written notice to the individual concerned. The individual has the right to be present, with an attorney or other representative, and the personal right to address the session. The individual also has the right to insist on a public, not private session. No executive session can be held in violation of these rights.

Perryman v. School Committee of Boston, 17 Mass. App. Ct. 346 (1983)

(2) To consider the discipline or dismissal of, or to hear complaints or charges brought against a public officer, employee, staff member or individual, provided that the individual involved in such executive session pursuant to this clause has been notified in writing by the governmental body at least forty-eight hours prior to the proposed executive session. Notification may be waived upon agreement of the parties. A governmental body shall hold an open meeting if the individual involved requests that the meeting be open. If an executive session is held, such individual shall have the following rights:

(a) to be present at such executive session during discussions or consideration which involve that individual.

(b) to have counsel or a representative of his own choosing present and attending for the purpose of advising said individual and not for the purpose of active participation.

Note 12: Complaints may be heard privately so that individuals are not harmed by public discussion of unfounded complaints. "Once that purpose evaporates, however, so does the reason for continued nondisclosure." Consequently, once the body hearing the complaint makes a decision relative to the complaint, minutes of the executive session must be released.

Doherty v. School Committee of Boston, 386 Mass. 643 (1982)

Foudy v. Amherst-Pelham Regional School Committee, 402 Mass. 179 (1988)

Perryman v. School Committee of Boston,17 Mass. App. Ct. 346 (1983)

O'Sullivan v. Worcester School Committee,411 Mass 1234 (1991)

(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 governmental body, to conduct strategy sessions in preparation for negotiations with non-union personnel, to conduct collective bargaining sessions or contract negotiations with non-union personnel.

Note 13: A governmental body may meet in closed session "to discuss strategy with respect to" litigation "if an open meeting may have a detrimental effect" on its litigating position. The Open Meeting Law imposes strict limits on the right of a governmental body to meet privately with its legal advisors. Litigation is limited to actual pending legal actions and reasonably expected or threatened actions.

Doherty vs. School Committee of Boston,386 Mass. 643 (1982)

District Attorney v. Selectmen of Middleborough, 395 Mass. 629 (1985)

Powers v. Freetown-Lakeville Reg. School Committee, 392 Mass. 656 (1984)

Note 13a: In the absence of actual or imminent litigation, no executive sesssion for consultation with town counsel, etc. can be held even if attorney-client privilege would normally apply.

Dist. Atty. for Plymouth Dist. v. Board of Selectmen of Middleboro, 395 Mass. 629, 481 N. E. 2nd 1128 (1985)

Note 14: A governmental body may conduct collective bargaining negotiations and hear grievances under collective bargaining agreements in closed sessions (and may in fact be required to do so under collective bargaining agreements). The legislature has presumed that open sessions may have a detrimental effect on effective collective bargaining.

Ghiglione v. School Committee of Southbridge, 376 Mass. 70 (1978)

Marion Bd. of Selectmen v. Labor Relations Commission, 7 Mass. App. Ct. 360 (1979)

Note 15: In 1985 and 1988 the Open Meeting Law was amended to allow private sessions "to conduct strategy sessions in preparation for negotiations with nonunion personnel" and to conduct contract negotiations which nonunion personnel. The legislature has presumed that an open meeting may have a detrimental effect on the government's bargaining position.

District Attorney v. Board of Selectmen of Sunderland, 11 Mass. App. Ct. 663 (1981)

Note 16: The governmental body has the burden of proving that an open discussion "reasonably might" have a detrimental effect on its bargaining or litigation position before convening an executive session for such discussions, but the governmental body need not demonstrate "definite harm"

Attorney General vs. School Committee of Taunton, 7 Mass. App. Ct. 226 (1979)

District Attorney v. Board of Selectmen of Sunderland, 11 Mass. App. Ct. 663 (1981)

(4) To discuss the deployment of security personnel or devices.

(5) To investigate charges of criminal misconduct or to discuss the filing of criminal complaints.

Note 17: Should a governmental body choose to conduct an investigation of possible criminal misconduct, it may (and should) conduct its sessions concerning the investigation privately. The individual who is the subject of such investigation does not have the right of notification until discipline is to be considered.

(6) To consider the purchase, exchange, lease or value of real property if such discussions may have a detrimental effect on the negotiating position of the governmental body and a person, firm or corporation.

Note 18: There is a recognized need for confidential discussion in negotiations to purchase, exchange or lease real estate, similar to that involved in collective bargaining. Strategy and actual negotiation may be private until completed "'if such discussions may have a detrimental effect."

District Attorney v. Selectmen of Middleborough, 395 Mass. 629 (1985)

(7) To comply with the provisions of any general or special law or federal grant-in-aid requirements.

Note 19: An executive session may be held in consideration of an individual's statutory right to privacy only where the public interest in open government is outweighed by an otherwise unwarranted, unreasonable, substantial and serious interference with the individual's privacy. The individual privacy interest may outweigh the public interest concerning "intimate details" of a "highly personal nature."

Attorney General v. School Committee of Northampton, 375 Mass. 127 (1978)

Foudy v. Amherst-Pelham Regional School Committee, 402 Mass. 179 (1988)

(8) To consider and interview applicants for employment by a preliminary screening committee or a subcommittee appointed by a governmental body if 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 or a subcommittee appointed by a governmental body, to consider and interview applicants who have passed a prior preliminary screening.

Note 20: Added in 1987, this allows a committee or subcommittees appointed by the governmental body (subject to the open meeting law) which will make the hiring decision to conduct its preliminary work in closed session, "if an open meeting will have a detrimental effect in obtaining qualified applicants." Once preliminary work has narrowed the field to a group of applicants who will receive substantial consideration (semi-finalists), such that an applicant and the public would expect open and public consideration of his or her professional competence, closed meetings are not permitted.

Attorney General v. School Committee of Northampton, 375 Mass. 127 (1978)

Gerstein v. Superintendent Search Screening Committee, 405 Mass. 465 (1989)

Connelly v. School Committee of Hanover, 409 Mass. 232 (1991)

Note 21: The preliminary screening committee may "rate and discuss" applicants without keeping a record of individual member positions (which is required for any votes taken.) There is no obligation to disclose the names of applicants who do not pass preliminary screening (but semifinalists must be disclosed). Detrimental effect on the pool of applicants may be shown by determining that one qualified applicant would withdraw. Interviews may be part of preliminary screening.

Gerstein v. Superintendent Search Screening Committee, 405 Mass. 465 (1989)

(9) To meet or confer with a mediator, as defined in section twenty-three C of chapter two hundred and thirty-three, with respect to any litigation or decision on any public business within its jurisdiction involving another party, group or body, provided that: (a) any decision to participate in mediation shall be made in open meeting session and the parties, issues involved and purpose of the mediation shall be disclosed; and (b) that no action shall be taken by any governmental body with respect to those issues which are the subject of the mediation within deliberation and approved for such action at an open meeting after such notice as may be required in this section.

Chance or social meetings. This section shall not apply to any chance meeting, or a social meeting at which matters relating to official business are discussed so long as no final agreement is reached. No chance meeting or social meeting shall be used in circumvention of the spirit or requirements of this section to discuss or act upon a matter over which the governmental body has supervision, control, jurisdiction or advisory power.

Notice of meetings. Except in an emergency, a notice of every meeting of any governmental body shall be filed with the clerk of the city or town in which the body acts, and the notice or a copy thereof shall, at least forty-eight hours, including Saturdays but not Sundays and legal holidays, prior to such meeting, be publicly posted in the office of such clerk or on the principal official bulletin board of such city or town. The secretary of a regional school district committee shall be considered to be its clerk and he shall file the notice of meetings of the committee with the clerk of each city or town within such district and each such clerk shall post the notice in his office or on the principal official bulletin board of the city or town and such secretary shall post such notice in his office or on the principal office bulletin board of the district. If the meeting shall be of a regional or district governmental body, the officer calling the meeting shall file the notice thereof with the clerk of each city and town within such region or district, and each such clerk shall post the notice in his office or on the principal official bulletin board of the city or town. The notice shall be printed in easily readable type and shall contain the date, time and place of such meeting. Such filing and posting shall be the responsibility of the officer calling such meeting.

Minutes. A governmental body shall maintain accurate records of its meeting, setting forth the date, time, place, members present or absent and action taken at each meeting, including executive sessions. The records of such meetings shall become a public record and be available to the public; provided, however, that the records of any executive session may remain secret as long as publication may defeat the lawful purpose of the executive session, but no longer. All votes taken in executive sessions shall be recorded roll call votes and shall become a part of the record of said executive sessions.

Note 22: The records required to be kept... shall report the names of all members of such boards and commissions present, the subjects acted upon, and shall record exactly the votes and other official actions taken by such boards and commissions; but... such records need not include a verbatim record of discussions at such meetings.

G. L. c 66 s 5A

Note 23: The requirements for maintaining minutes are the same for regular, emergency and closed (executive) sessions except for the added requirement for executive sessions which states that all votes shall be recorded roll call votes.

G. L. c 39 s 23B

Note 24: Minutes of meetings are public records, and are generally available as soon as they are prepared and approved by the board. It is possible for boards to release minutes as soon as they are prepared, marking them "unapproved" and releasing official minutes once they have been reviewed by the board.

Note 25: Minutes of executive sessions may remain secret "as long as publication may defeat the lawful purpose of the executive session, but no longer." It is possible to make part of the minutes public while continuing to keep secret certain details for which the need for privacy remains.

Note 26:The governmental body cannot keep minutes secret by agreement which the law says must be released. The burden is on the governmental body to show the need to keep records private, and cannot act to protect individual privacy without the support of that individual.

Faudy v. Amherst-Pelham Regional School Committee, 402 Mass. 179 (1988)

Attorney General v. School Committee of Northampton, 375 Mass. 127 (1978)

Recording Public Meetings
A meeting of a governmental body may be recorded by any person in attendance by means of a tape recorder or any other means of sonic reproduction or by means of videotape equipment fixed in one or more designated locations determined by the governmental body except where a meeting is held in executive session; provided, that in such recording there is no active interference with the conduct of the meeting.

Note 27: Even if a meeting is gratuitously recorded, there is no public right of access to the tape.

Perryman v. School Committee of Boston, 17 Mass. App. 346, 458 N. E. 2nd 748 (1983)

Note 28: Still photography is routinely allowed.

Copy of Law
Upon qualification for office following an appointment or election to a governmental body, as defined in this section, the member shall be furnished by the city or town clerk with a copy of this section. Each such member shall sign a written acknowledgment that he has been provided with such a copy.

Other Meetings: Open or Closed?
Information gathering and fact-finding sessions: The law is not clearly defined in this area but one must search for points on which to build a case for access. The definitions of "deliberations" and "meetings" could apply. It is also important to check the origin of the committee as to who appointed it. If the appointing authority is a governmental body (note 9) then the session is probably open. If created by a non-governmental body (note 10) then it is probably closed. Even if the group is entitled to meet in closed session, it is important to ask if it is necessary. Governmental bodies may meet in closed session if certain conditions are present, but they are also required to make a determination if it is necessary subject to the rights of affected individuals.

Advisory boards, commissions: If elected by popular vote or appointed by governmental officials and have some governmental functions, they are probably covered.

Appointed as well as elected bodies: Both are covered by the open meeting law under the definition of "governmental body."

Electronic meetings:

Conference calls: Not authorized except, perhaps, in an extreme emergency. Meetings are "corporal convenings."

E-mail: Not a recognized form of holding a meeting.

Budget sessions: Always open except when discussing sale, lease or value of real estate if disclosure would harm the governmental body's position..

Curing a Violation
If you are denied access to a meeting, the denial is most often rooted in misinformation or misunderstanding. Information provided in this Access to Meetings section should enable you to determine if, in fact, the public is entitled to attend.

Every effort should be made to resolve the denial locally, working with the committee chairperson. Failing that, if it is an appointed committee, go to the appointing authority and, if necessary, ask that Town Counsel be asked for an opinion.

Always give local officials the opportunity to save face by addressing and resolving the problem. If they fail, then take the issue to a higher authority.

Note 29: Nothing in section 23B empowers a court to invalidate actions taken at a meeting which complies with the requirements of the Open Meeting Law. In order for a court to have authority to nullify an action taken by a public body, the action must be taken while the body was in violation of the statute. If the governmental body conducts proper, complete public sessions after a violation, then take action on the matter considered at the improper session, it has accomplished what would have been required if its first actions were invalidated. Where the governmental body failed to keep proper minutes, it may be required to prepare minutes.

B. P. O. Elks v. Lawrence Planning Board, 403 Mass 531 (1988)

B. P. O. Elks v. Lawrence City Council, 403 Mass. 563 (1988)

Pearson v. Board of Health, 402 Mass 797 (1988)

Unfortunately, the state does not have a single officer with jurisdiction over the conduct of and access to meetings (as the Secretary of Public Records would have jurisdiction over access to public documents).

Your first appeal would be to your District Attorney, detailing the meeting, its purpose, who called it and how. State your objection and ask for remedy. Your appeal to the District Attorney should be made within five days of the alleged violation.

If the District Attorney fails to resolve the problem, a call to the Attorney General's office may help, but meeting violations (unless repeated or particularly flagrant) don't garner much attention in light of more serious statewide concerns.

It is possible, at little cost, to file a Writ of Mandamus in District Court which essentially seeks to force the governmental body to do its job. Historically, there have been few sanctions against town officials for violations. If appropriate, they may be required to meet in public to redo the action taken behind closed doors.

A 1993 amendment to the Open Meeting Law does allow for judicially imposed fines of up to $1,000 for violations. The violation should be challenged in District Court within 21 days.

Court challenges must be filed in the Superior Court for the County in which the governmental body defendant conducts business by three or more registered voters under the provisions of G. L. c. 39 s 23B. The court does have the authority to order payment of legal fees.

If you plan to do a news story about your challenge of an alleged violation, it is strongly recommended that you present it as a case of the public being denied access, not the press. Massachusetts public access laws make no mention of the press; the public is entitled to attend and it is the public that is denied. Public access to public meetings is the issue and denials should be challenged on behalf of the public and reported that way.