Massachusetts Open Meeting Law Changes This Week

Significant changes to Massachusetts Open Meeting law take effect on July 1, 2010. The new rules do not directly promote collaborative technologies–e.g. how a town might use a wiki to improve governance, for example, but some common sense clarifications do open the door to removing some anti-technology sentiment. And I think the documentation requirements will push more towns to an electronic–and shareable–approach that increases the practical transparency of government by making data transmittable. The major changes in law are summarized on Mass.Gov–with the biggest being how enforcement has been moved from local District Attorneys to the AGs office. The Town of Littleton also has a good summary with links to more resources. The substantial changes of note to local boards and commissions are:

Notice must include agenda – Notice of public meetings must be posted 48-hours prior to the meeting, excluding weekends. So, if the Board of Selectmen wants to meet Monday night at 7:30pm, they must post the notice no later than 7:30pm on Thursday night. Previously, Saturday night was “good enough.” Now there is also a new requirement that this notice include “a listing of topics that the chair reasonably anticipates will be discussed at the meeting.” That is a small, but significant change since most meetings are currently posted without agendas–or agendas are posted the day of the meeting if at all. I’m guilty of this omission myself–it’s not part of a vast conspiracy to hide the truth or anything, just lack of advance planning.

This is huge progress. Attending town board and commission meetings is a low probability exercise in irrelevance since most members of the general public will have no idea what is going to be discussed and no context to contribute in a meaningful manner. Under the new law, residents will learn, by Thursday night, what topics the Selectmen will be discussing on Monday.

All documents become part of the record – Section 22 of the new law specifies that meeting minutes include “the date, time and place, the members present or absent, a summary of the discussions on each subject, a list of documents and other exhibits used at the meeting, the decisions made and the actions taken at each meeting, including the record of all votes.” Subsection (e) goes on to say, “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…[references to employment contracts, etc. omitted]”

Speaking from the perspective of a town advisory board chairman, this is a burdensome requirement, but it fills a huge gap for the citizen seeking to understand what happened at a meeting. Every meeting of our Board of Selectmen is punctuated by the three members referring to materials contained in large binders compiled by town staff prior to the meeting. Sometimes a Selectman will make a point of “reading into the record,” if there is a letter of commendation or something. Now, ALL that material is a public record. Ideally this information should be made available to the public as soon as it is distributed to the members of the committee. I do not see language in the law that anticipates such pre-emptive publication, but the knowledge that whatever is prepared will become a public record should remove objections to its early disclosure.

I contacted our Board of Selectmen and learned 1) we are already in compliance; having saved 23 years worth of those packets for posterity and 2) no one has ever requested to look at them.

Remote participation is possible – One of our Selectmen was injured last winter but, thanks to a special agreement worked out in consultation with the District Attorney, was able to continue participating in meetings from his hospital bed. The new law allows the Attorney General to propose regulations that would allow remote participation by members of boards if everyone can hear everyone else and a quorum is physically present. No more excuses to miss meetings–we can Skype you in. This change will not take effect until the regulations have been proposed and approved.

Email usage is clarified – it is still impermissible to use email to develop policy. The valid policy basis for this is that the public can’t see what committee members are talking about when they prepare for a meeting via email. However, the new law spells out a number of specific clarifications to make it clear that emailing agendas, meeting minutes, materials for discussion at the meeting, and for procedural issues–is permitted.

Finally, I believe the centralization of administration makes it much more likely this law will be able to adapt to the changing needs of communities. When I inquired about how much of my committee work could be done online, I had some guidance from the town based on the AGs opinion…but ultimately I would need to call the Norfolk County DA for a ruling. I think they are busy prosecuting real criminals. Now the AG has created a Division of Open Government…I’ll have to send them a link to my article on wikis…