Pepyne prepares Powerpoint presentation
At an Open Meeting Law primer held Thursday evening January 10, 2008 during the Planning Board meeting, Northwestern District Assistant District Attorney Cynthia Pepyne provided a Powerpoint presentation. The purpose of the law is to promote justice and to eliminate secrecy in governmental decision making. The basic tenet of the law, "All meetings of a governmental body shall be open to the public and any person shall be permitted to attend any meeting…"
Planning Board Chair Francis Johnson
Adopted in Massachusetts in 1958, General Law c. 39, s. 23A declares that meetings include email and phone conversations, but not social meetings or on site inspections. Meetings occur when a quorum of a board meets to deliberate formal public business. Notice of meetings must be posted 48 hours in advance, with exceptions for emergency executive sessions. Meetings are subject to audio and video recording. A meeting is formally defined as, "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."
Pepyne explains open meetings and email use
The minutes of emergency executive sessions are to be released at some point in time, with exceptions, but the city is not required to make announcements of such. Pepyne added that the choice to enter into executive sessions is that of board members through a roll call vote and the burden is on the respective boards to justify such sessions. Reasons to enter into executive sessions include: to discuss the reputation, character, physical condition or mental health of a person, discipline or dismissal or hear complaints or charges, collective bargaining or litigation, deployment of security personnel or devices, investigate charge of criminal misconduct or discuss filing of criminal complaints, to consider the purchase, exchange, lease or value of real property, statutory, interview applicants, and to meet with a certified mediator.
Pepyne answers question
Remedies for alleged violations can be sought by three or more registered voters and/or by the District Attorney’s office through superior court. There are a variety of remedies available. The burden is on the governmental body to show that it acted in accordance with the law. If the court finds a violation of the law, the court may order invalidation of the action taken at the meeting so long as the complaint has been filed within 21 days of the action taken. The law also provides for civil fines of $1,000 per meeting against a governmental body that has indeed violated the law.
Pepyne speaks to municipal board members
An interesting point regarding the use of electronic mail, or email for short, is that none of the city’s board members have a city issued email account, therefore personal accounts are used, which are difficult if not impossible to monitor by the city or authorities. Nor are there procedures in place relating to text messages from hand held electronic devices and the like, a point raised by Mary Serreze of the Community Radio Hour. Pepyne further added that councilors cannot be compelled to provide for the public emails sent to their private accounts from private residents, however, she stopped short of addressing serial deliberation via third party intermediaries, and asserted that deliberation of any kind held outside of the public view by a quorum of a board is illegal. Private, serial discussions of public business involving a quorum violate the Open Meeting Law regardless of the knowledge or intent of the parties.
"Despite the convenience and speed of communication by email, its use by members of a governmental body carries a high risk of violating the Open Meeting Law. Not only do private email communications deprive the public of the chance contemporaneously to monitor the discussion, but because they exclude non-participating members, such communications are also inconsistent with the collegial character of governmental bodies. For these reasons, email messages among members of governmental bodies are best avoided except for matters of a purely housekeeping or administrative nature."
Massachusetts’ Open Meeting Law guidelines are available at: http://www.mass.gov/Cago/docs/Government/openmtgguide.pdf
