Wednesday, October 30, 2013

Attorney General Open Meeting Law training

Open Meeting Law basics
1. Notice must be posted for meetings.
2. Meetings must be open to the public, unless the public body enters into executive session.
3. Minutes must be kept for public and executive session.
4. Public body members must be certified.
5. Complaint process
And kudos to our School Committee clerk, Helen Friel, for being here tonight!
A "public body"
"however created, elected, appointed or otherwise constituted established to serve a public purpose...subcommittee shall include any multiple-member body created to advise or make recommendations to a public body"
legislature and committees
bodies of the Judicial branch
bodies to advise a constitutional officer
bodies not serving a public purpose
groups without the jurisdiction to make decisions

"an oral or written communication through any medium that is between or among a quorum of a public body on any public business under its jurisdiction"
scheduling and procedural matters
distribution of reports or documents to be discussed (provided there is no discussion)
subquorum so long as it is not a quorum of a subcommittee and avoids serial communication

"we see a lot of issues with emails...very easy to run afoul of the law"

deliberation has to happen in a properly posted open meeting
Deliberation by a public body with respect to any matter within the body's jurisdiction

on site inspection, provided there is no deliberation
attendance by a quorum at an event, provided there is no deliberation
attendance by a quorum at a meeting of another public body provided no deliberation
meetings of a quasi-judicial board for the sole purpose of making a decision in an adjudicatory
town meeting

Meeting notice
at least 48 hours in advance, excluding Sunday, Saturday, and legal holidays
must include date, time, place, list of topics "the chair reasonably anticipates will be discussed"
executive session must include specific reason for executive session, may not use a placeholder
date and time of posting

Exception: emergency is a sudden, generally unexpected occurence or set of circumstances demanding immediate action
"not a deadline that somebody forgot about"
what happens if something comes up after the meeting is posted?
if it's withing 48 hours, update the notice
can be discussed without posting, but if it is of public interest, you should consider postponing the item
"best practices" issue
chairs need to work with the clerk to get time to post it
can't just continue the meeting from one night to the next; each night must be posted 48 hours in advance
other laws may apply (like those for a public hearing)
meetings must be accessible

Remote participation (which has not been allowed by the Worcester City Manager, who, as Chief Executive, has the authority to make the decision)
Public participation
may attend
may address body only with permission of chair
may make audio or video recording upon notification of chair and subject to reasonable requirements
chair must fulfill others of recording at the beginning of meeting
someone who disrupts the meeting may be removed, as a last resort, once warned

Executive Session: ten exceptions to public meetings
meeting must be posted as a open meeting including purpose of executive session
convene in open session
conduct roll call vote to enter executive session; obtain majority
announce if body will reconvene publicly afterwards
remote particpants must state that no one else is with them
minutes and all documents must be maintained
ensure that discussion is only on topic for which meeting is called
votes in executive session must be by roll call

  1. discuss reputation, character, health, discipline, charges, complaints, BUT NOT PROFESSIONAL COMPETENCE of an individual (who has rights: they must be notified; can say session must be public; has right to be present; right to have counsel or representative; right to speak on his own behalf; right to record)
  2. conduct strategy sessions or the purpose of collective bargaining with non-union personnel (agreement must be voted publicly)
  3. conduct strategy for collective bargaining or litigation; the chair must declare that deliberating during an open session would have a detrimental effect (collective bargaining can be voted in executive; should disclose)
  4. security personnel or devices 
  5. criminal misconduct
  6. acquisition of real property (purchase, sale, lease, or value) again if chair declares public session would have a detrimental affect on negotiations
  7. comply with law or federal grant-in-aid requirements (must cite the law when entering executive session)
  8. preliminary screening for employment: "the search committee exception" Once a group of finalists, all screenings must be done in public. Cannot make final decision
  9. confer with mediator on litigation or decision
  10. Trade secrets in the course of activities conducted by a public body as an energy suppplier (municipal power companies)
Note that on 3, 6, 8, you must state that your position would be weakened by doing it publicly

Date, time, place, who was present
summary of discussion of each topic: should reflect positions
any decisions made or actions taken, including votes
also any documents in the session
note who partipated remotely
"who was there and what they were doing"
Minutes should be approved at the next meeting, if at all possible
executive session records must be disclosed once publication will no longer defeat the purpose for having entered into executive session, unless exempt from disclosure
chair or public body must review executive session minutes periodically to see if reason for executive remains in place
public body must respond to request for disclosure within 10 days: either give them up or respond that reason remains

Exempt from disclosure: materials used in a performance evaluation bearing on an individual's professional competence that were not created by members of the body for the purposes of evaluation (e.g. teacher evaluation used in a superintendent evaluation)

OML materials must be distributed to all members of a public body upon taking oath of office or before entering performance of offce
must sign certification within two weeks of receipt; retained by municipal clerk

Steps of complaint process: complaints should be filed in writing with the public body within 30 days; sent to chair of public body
public body has 14 days to respond
if complainant is not satisfied, he may file with the Division of Open Government 30 days after the complaint was filed with the public body
who then will acknowledgment
request for documents and interviews
violation? was it intentional?
was the action taken intentional?
ALTERNATIVELY, the Attorney General or 3 or more registered voters may initiate a civil action to enforce the Open Meeting Law
AG may compel immediate and future compliance; may compel attendance at training; may compel release of minutes or other materials; may nullify an action taken in violation of OML; may reinstate an employee and make whole; may impose a civil penalty of up to $1000

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