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December 20, 2011

OPEN MEETING LAW:
REMOTE PARTICIPATION
&
PROPOSED DEFINITION OF "KNOWING" VIOLATIONS
 

REMOTE PARTICIPATION GUIDELINES

  

The Massachusetts Attorney General's Office recently published new regulations (940 CMR 29.10) authorizing remote participation in public meetings under the Open Meeting Law (M.G.L. c. 30A, 18-25).  The regulations allow board members not physically present at a meeting location to participate and vote via teleconferencing, subject to certain conditions.  Below are some general guidelines on these new regulations:

 

Local Authorization:

 

Remote participation is not automatically permitted by the new regulations. In cities and towns, the "chief executive officer" (defined in M.G.L. c. 4, 7) must authorize remote participation by majority vote.  In most towns, the chief executive officer is the board of selectmen.  In districts, the authorization must be made by majority vote of the regional or district committee.  Once authorized by the chief executive officer, remote participation is available to all boards in the city, town or district.

 

Technological Requirements:

 

At a minimum, the remote participant and all persons present at the meeting location (including board members, staff, and the audience) must be clearly audible to one another.  The regulations authorize the following technological means of remote participation: telephone, internet or satellite enabled audio or video conferencing, and any other technology that enables the remote participant and persons present to be clearly audible to one another.

 

Each individual board (rather than the chief executive officer) may determine the acceptable technological means of remote participation.  A board's chair may decide how to address any technical difficulties that arise.

 

Procedure:

 

In order to allow a board member to participate remotely at a public meeting, a board must adhere to the following procedure:

 

1.  A member must contact the chair (or person chairing the meeting) prior to the meeting and request remote participation for one of five specific reasons:

  a.  Personal illness;

  b.  Personal disability;

  c.  Emergency;

  d.  Military service; or

  e.  Geographical distance.

 

In order for a member to participate remotely, the chair must determine that the member's physical attendance is "unreasonably difficult" due to one or more of the five permissible reasons.

  

Note: The regulations do not provide definitions for the five reasons and do not provide a standard for the chair to use in order to determine whether remote participation is justified.

 

2.  If feasible, the chair must distribute to the remote participant any documents or exhibits expected to be used at the meeting.

 

3.  The board must convene the meeting with a physical quorum present and with the person chairing the meeting physically present.

 

For example, a three member board must have two members present in order for the third to participate remotely; a seven member board must have at least four members present in order for any of the remaining three members to participate remotely.  A remote participant may not chair the meeting.

 

4.  At the beginning of the meeting, the chair must announce the name of the member participating remotely and state the reason(s) justifying the remote participation.

 

Refer to reasons (a) though (e) in item #1 above. The chair's announcement and stated justifications must be recorded in the minutes of the meeting.

 

5.  Any votes taken must be by roll call vote.

 

6.  If the board enters executive session, the remote participant must state that no other person is present or able to hear the discussion at the remote location.

 

The board may, by majority vote, authorize another person at the remote location to hear the discussion.

 

Remote Participation During Adjudicatory Hearings:

 

Remote participants are considered present for the purposes of the "Mullin Rule," which prohibits a board member who has missed a portion of an adjudicatory hearing from voting on the board's final decision.  For municipalities that have accepted M.G.L. c. 39, 23D, remote participation does not count as an absence.

 

 

 

PROPOSED DEFINITION OF "KNOWING" VIOLATIONS OF THE OPEN MEETING LAW

 

The Massachusetts Attorney General's Office also published notice of a proposed regulation defining "knowing or knowingly" with regard to violations of the Open Meeting Law.  If adopted, the new regulation would set a standard for a finding by the Attorney General of an intentional violation of the Open Meeting Law.  Intentional violations may result in fines of up to $1,000 for each violation.  The proposed regulation is as follows:

 

Knowing or Knowingly means acting with specific intent to violate the law, acting with deliberate ignorance of the law's requirements, or acting in violation of the law where the public body or public body member has been informed previously by receipt of a decision from a court of competent jurisdiction or advised by the Attorney General that such conduct violates the law.  Where a public body or public body member has made a good faith attempt at compliance with the law, but was reasonably mistaken about its requirements, such conduct will not be considered a knowing violation of M.G.L. c. 30A, 18-25.

 

The Attorney General will accept written comments on the proposed regulation until January 19, 2012.  Comments may be submitted to Amy Nable, Director, Division of Open Government, Office of the Attorney General, One Ashburton Place, 20th Floor, Boston, MA 02108, or via email to openmeeting@state.ma.us.  In addition, the Attorney General will be holding a public hearing on the proposed regulation on Thursday, January 19, 2012, from 3:00 p.m. to 5:00 p.m., at One Ashburton Place, 21st Floor, Boston, MA.

 

 

Municipal Law Group 

 

Mirick O'Connell

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Worcester, MA  01608

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Westborough, MA  01581

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This client alert is intended to inform you of developments in the law and to provide information of general interest.   It is not intended to constitute legal advice regarding a client's specific legal issues and should not be relied upon as such.  This client alert may be considered advertising under the rules of the Massachusetts Supreme Judicial Court.