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HomeMy Public PortalAboutCPC packet 10132021Town of Brewster Community Preservation Committee 2198 Main St., Brewster, MA 02631 cpcmeeting@brewster-ma.gov (508) 896-3701 MEETING AGENDA October 13, 2021 at 4:00 PM (Remote Participation Only) This meeting will be conducted by remote participation pursuant to Chapter 20 of the Acts of 2021. No in-person meeting attendance will be permitted. If the Town is unable to live broadcast this meeting, a record of the proceedings will be provided on the Town website as soon as possible. The meeting may be viewed by: Live broadcast (Brewster Government TV Channel 18), Livestream (livestream.brewster-ma.gov), or Video recording (tv.brewster-ma.gov). Meetings may be joined by: 1.Phone: Call (929) 436-2866 or (301) 715-8592.Webinar ID: 837 7728 4808 Passcode: 326439 To request to speak: Press *9 and wait to be recognized. 2.Zoom Webinar: https://us02web.zoom.us/j/83777284808?pwd=NjB3WldRTGRxb0l0WXhIS1J0Y1NOQT09 Passcode: 326439 To request to speak: Tap Zoom “Raise Hand” button or type “Chat” comment with your name and address, then wait to be recognized. Community Preservation Committee Faythe Ellis Chair Sharon Marotti Vice Chair Elizabeth Taylor Clerk Roland Bassett Jr. Barbara Burgo Bruce Evans Peggy Jablonski Sarah Robinson Paul Ruchinskas CPC Assistant Beth Devine 1.Call to Order 2.Meeting Participation Statement 3.Declaration of a Quorum 4.Financial Update 5.Discussion and possible vote on draft award letter and authorization to forward to Town Counsel for review 6.Report on warrant article presentations to Select Board and Finance Committee 7.Update on Public Hearing planning 8.Update on CPA Plan planning 1.Committee member profile reviews 2.Public Forum planning 9.Establish working group to complete content submission form for Town Website update due 11/15 10.Project updates 1.Habitat Red Top Road 2.Other 11.Approval of 9/22 minutes 12.Know Your Responsibilities resources in packet 13.Announcements 1.Cape Housing Institute Housing 101 14.Items the Chair could not anticipate 15.Next meeting: 10/27 at 5PM (Annual Public Hearing) 16.Motion to Adjourn Date Posted: Date Revised: 10/8/21 Community Preservation Committee: FY22 Forecast as of 10/13/2021 1,739,140.61$ 1,084,450.00$ 162,667.50$ 1,247,117.50$ 2,986,258.11 50%10%10% Open Space Housing Historical $ 678,947.78 $ 120,804.53 $ 527,670.09 $ - $ 611,454.96 $ 1,938,877.36 $ 623,558.75 $ 124,712.00 $ 124,711.75 $ 311,779.38 $ 1,247,117.50 $ 1,184,761.88 $ 1,302,506.53 $ 245,516.53 $ 652,381.84 $ 311,779.00 $ 1,858,572.46 Open Space Housing Historical "30%" 27.4 $ (53,100.00)27.4 $ (101,600.00)137.2 $ (48,983.00) 82.2 274.2 (62,356.00) (185,000.00) (245,516.53) (113,079.47) (125,000.00) (1,184,762.00) Fall TM submitted (67,400.00)$ (5,000.00)$ (25,000.00)$ (150,000.00)$ (5,000.00)$ Total YTD Obligations - FY22 $ (203,683.00) $ (245,516.53) $ (197,400.00) $ (185,000.00) $ (1,540,197.47) $ 1,098,823.53 $ - $ 454,981.84 $ 126,779.00 $ 318,374.99 Total net available from all accounts 1,680,584.37$ REMAINING OPEN SPACE GRANT FUNDS RECEIVED $192,400 H - Latham Strong Start in Adult Living Housing H - Latham Legal set aside H - CC5 Orleans - $100,000 (deferred to next funding) FY22 Estimated Unreserved Fund Balance as of 10/13/2021 with Adjustments [1] Balance forwarded estimated from prior year includes all unallocated funds, including unspent amounts from projects and budgeted administrative and professional HI -Crosby Mansion repairs - Consulting Setaside H - Updated Housing Production Plan - $25,000 (2) State Match revenue is projected at 15%, which is the total which was listed in the Fall TM Warrant. [3] Administrative expenses are limited by law to 5% of the total CPC budget and include primarily payroll costs, legal and other professional expenses, the annual $3,500 state Coalition dues. H - Housing Coordinator - $51096 H - Rental Assistance - $150,000 H - Habitat - Red Top Road - $105,000 Adj for Reserve setasides HI -Crosby Mansion repairs - $67,400 Administration Expense [3] Spring TM approved: Rec - Brewster Dog Park H - Dennis Veterans Home - $52,500 HI - Mill Pond Wall BBJ Property Bond #1 BBJ Property Bond #2 Bates Property Bond FY-21 Actual Unreserved Fund Balance FY-22 Estimated revenue FY-22 Estimated Funds available FY-22 obligations as of 10/13/2021 Undesignated Fund Balance FY-21 Estimated total balance forwarded [1]: FY-22 Estimated local tax revenue: FY-22 Estimated State contribution [2]: Total FY-22 Estimated funds available: Budgedted Reserved for CPA BONDS Page 1 of 5 2198 Main Street Brewster, Massachusetts 02631-1898 (508) 896-3701 FAX (508) 896-8089 October 1, 2021 Brian Locke Peter Lombardi Crosby Property Committee & the Town of Brewster P.O. Box 1888 Brewster, MA 02631 RE: Crosby Mansion Restoration & Preservation Project Dear Mr. Locke and Mr. Lombardi: This letter is written to inform you that on September 8, 2021, the Brewster Community Preservation Committee (“CPC”) voted (7-0-0) to recommend to Brewster Town Meeting approval of Crosby Property Committee & the Town of Brewster’s $67,400 funding request to use historic funds for restoration work on windows, chimneys, walls, etc. of this historic mansion. The state owns the mansion and leases it to the town which is responsible for rehabilitation and ongoing maintenance. Brewster Special Town Meeting is currently scheduled to meet on November 15, 2021 to consider the CPC’s recommendation and to appropriate $72,400 for the Project (the “Grant Funds”) under G.L. c.44B, the Community Preservation Act (the “CPA”). If approved by Special Town Meeting, the Town will make the Grant Funds of $67,400 available to Crosby Property Committee & the Town of Brewster upon the execution of a Grant Agreement containing terms substantially similar to the one attached hereto as Exhibit A and the terms set forth herein (the “Grant Agreement”). No Grant Funds will be paid to Crosby Property Committee & the Town of Brewster until Crosby Property Committee & the Town of Brewster has complied with the other terms of the Grant Agreement. PROJECT DESCRIPTION The goal of this project is to continue ongoing restoration needed to preserve this unique building and protect this part of Brewster’s history for future generations. CPA funds are being sought to repair the windows, roof and the chimneys of the Mansion, whose deteriorated condition allowed water to penetrate into and cause damage to the building that is significant in the history of the Town and also has architectural significance. The funds will be used to repair the damage and to protect the building from future harm by the elements. Community Preservation Committee Page 2 of 5 PROJECT ELIGIBILITY The Project complies with the provisions of the Community Preservation Act (CPA), G.L. c.44B, §5(b)(2), which provides historic resources, such as the Property and its various elements, may be preserved with the use of CPA funds for the acquisition, preservation, and rehabilitation of historic resources, but not for ordinary maintenance. “Preservation” is defined as work designed to protect historic resources from injury or harm, and “rehabilitation” is defined as the making of capital improvements or extraordinary repairs to real property that make the historic resource functional for its intended purpose (“capital repairs”, in turn, is defined as making repairs or improvements that are permanent in nature and appreciably adds to the useful life of the property). As the work to be funded by the CPA will protect this historic and historical building from injury and harm from the elements and makes permanent improvements to the Mansion, the project constitutes the preservation and rehabilitation of a historic resource and is eligible for funding under the CPA, provided that the work is done in accordance with the Secretary of the Interior’s standards on historic rehabilitation. The CPC determined that CPA funds may properly be used to for this project because the Property is listed in the National Register of Historic Districts and is an important part of the history and culture of the Town of Brewster and the region, the use of CPA funds for the Project constitute both the preservation and rehabilitation of the historic Property. GRANT AWARD TERMS AND CONDITIONS The disbursement of the Grant Funds awarded by the CPC is contingent upon the following terms and conditions: 1)The Project is approved and $72,400 has been appropriated therefore by Brewster Town Meeting; Town Meeting is currently expected to vote on November 15, 2021. 2)Prior to disbursement of any funds, the town must provide documentation that the town will have control of the property for a 30 year term or with legal assurances that Article 97, which constitutionally binds DCR to preserve the property, meets CPA eligibility requirements. 3)The Town will hold back 10% of the Grant Funds ($6740) until the Project’s construction has been completed. Any funds not used for the project shall be returned to the CPC’s Historical Fund Balance. 4)Project to meet stipulations detailed in summary memo from Eric Dray attached. Eric’s sign off will be a requirement of any funds disbursement. 5) Page 3 of 5 6)The terms and conditions herein shall be binding on the parties unless and until amended, in writing, by mutual agreement. Any significant change in the approved project shall require CPC approval and amendment of the award letter. The CPC chair shall determine whether a change is deemed to be significant. 7) 8)The CPA funds will only be released to Crosby Property Committee & the Town of Brewster as reimbursement for work completed in accordance with the provisions of this Award Letter and the Grant Agreement. Requests for reimbursement, including documentation of the expenses incurred, shall be submitted to Beth Devine bdevine@brewster-ma.gov, Assistant to the CPC. The CPC reserves the right, through its agent, to inspect the work prior to approving any funding request. 9)The term of the award will last until December 31, 2023, and the Project must be completed by that date. 10)Crosby Property Committee & the Town of Brewster shall provide project status reports/updates to the CPC liaison every three months (i.e., January 1, April 1, July 1, and October 1) until project completion, at which time a final report will be due. 11)The CPC liaison for this project shall be Elizabeth Taylor (etaylor@brewster-ma.gov). Do not hesitate to contact her or Beth Devine, Assistant to the CPC (bdevine@brewster-ma.gov) with any questions or concerns. The CPC is pleased to be able to play a role in preserving this historic landmark. Please do not hesitate to contact me should you have any questions or concerns. Sincerely, Faythe Ellis Chair- Brewster CPC Receipt Confirmation: Brian Locke Crosby Property Committee & the Town of Brewster P.O. Box 1888 Brewster, MA 02631 Cc: Peter Lombardi, Town Administrator Mimi Bernardo, Finance Director Page 4 of 5 Also, since this is a town project, I don’t believe a grant agreement will be necessary (to be confirmed) – so those references should be highlighted for deletion. Exhibit A – Model Grant Agreement Page 5 of 5 Attachment 1 - Application Guidelines for Developing Subpage Content (Rev. Feb 24 MWC) 1 GUIDELINES FOR DEVELOPING YOUR DEPARTMENT OR COMMITTEE WEBPAGE FOR THE NEW BREWSTER TOWN WEBSITE The Town is preparing to launch a new website. It will offer easier navigation and more function. You’ve been identified as the point of contact who will assist with creating your department’s or committee’s new webpage. Action to Date  A committee has worked since mid-2019 to advance this project.  CivicPlus, a major municipal website host, was selected to construct the website.  Site features and color scheme (blues and greens) were selected.  The Town’s homepage and “subpage” (department & committee pages) were designed.  The Town acquired photographs from local photographers for the new website. Next Steps  We need you to select content to appear initially on your new webpage (called a “subpage”).  We will not be directly transferring content from the current site but will be populating the new subpages with selected information and documents that will best meet users’ needs.  Each department/committee subpage will have these standard sections: Central Column: Page Title & Mission Statement. A draft mission statement is being provided for your review and editing if needed. Meetings: If your unit meets publicly, meeting information will appear here. Elected/Appointed Members: If your unit has elected or appointed members, their names, positions (e.g., member or chair), and term ending date will appear here. News & Announcements: You’ll be able to post news and announcements specific to your organization (general news will appear under “Town News”). Left Column “Sticky” Buttons: Round buttons will appear on the far left of every page (thus they are “sticky”) to let users quickly access information from any page. Resource List (Navy blue column). This is where you can insert important forms, policies, and documents that visitors to your page are likely to seek. These can be links to additional pages you create, or to other Town or external websites. Please scrutinize what your organization currently offers and determine if there are additional resources that should be added to the new site. Examining other town’s websites may be useful in generating ideas about items to include here as well as what is on your current page. Several webpages are being provided to help you generate ideas. Right Column Contact Us: The upper right column will provide contact information for key personnel in your organization as well as hours of operation. Calendar/Upcoming Events: The lower right column will provide information about upcoming meetings or other events associated with your organization. Guidelines for Developing Subpage Content (Rev. Feb 24 MWC) 2 New Website Page Examples Guidelines for Developing Subpage Content (Rev. Feb 24 MWC) 3 b. Subpage Example - Department with an Associated Committee Guidelines for Developing Subpage Content (Rev. Feb 24 MWC) 4 c. Subpage Example – Department without an Associated Committee Guidelines for Developing Subpage Content (Rev. Feb 24 MWC) 5 d. Subpage Example – Page with Link to External Website (e.g., school committees) Guidelines for Developing Subpage Content (Rev. Feb 24 MWC) 6 Subpage Section Content  The following graphic shows where your content will be inserted on your subpage.  The numbering is aligned with content you’ll provide on your “Content Form.”  If your unit does not have a committee with members or meetings, that content will not appear. Guidelines for Developing Subpage Content (Rev. Feb 24 MWC) 7 For Your Action: Please Fill Out a Content Form  Please fill out either the attached “Content Form.” This will be the content that appears on your new webpage when it goes live (more will be added later). To Assist You  Please review the following draft mission statement for your subpage. Please revise if needed. This statement should make it clear to page visitors what your organization does. The Charter Committee is responsible for drafting a charter for the Town of Brewster and making recommendations to the Select Board about establishing a town charter. The Community Preservation Committee (CPC) guides and monitors investment in community housing, historic preservation, open space, and recreation land to preserve, restore, and enhance Brewster’s environment and community character. The CPC is responsible for reviewing applications for funding under the Community Preservation Act (CPA). The committee makes recommendations to Town Meeting on expenditures of CPA funds. The Community Preservation Act (CPA), MGL C. 44B, was enacted by state legislators allowing any town in the Commonwealth to adopt a property tax surcharge of up to 3%, the revenues from which, along with any matching state funds, could be directed to open space and recreation, community housing, and historic preservation. Brewster adopted the CPA at its ____town meeting. The Town’s related bylaw stipulates the distribution of CPC funds:  50% for open space  10% for community housing  10% for historic preservation  the balance is available for any of the identified purposes. Committee members are appointed by the Select Board.  We want every website subpage to be easy to use and filled with information users need. To create a high-quality page, please examine other municipal website pages for ideas about types of content to include. The following examples are provided to help you generate ideas about content to include on your page. These examples are for content ideas only, not for their page design. Lexington: https://www.lexingtonma.gov/community-preservation-committee Guidelines for Developing Subpage Content (Rev. Feb 24 MWC) 8 Plymouth: https://www.plymouth-ma.gov/community-preservation-committee Hingham: https://www.hingham-ma.gov/432/Community-Preservation-Committee  If you wish to view more websites for ideas, the Massachusetts Municipal Association offers links to the 351 municipal websites in the Commonwealth: https://www.mma.org/members/member-communities/city-and-town-websites/ Due Date: Please submit your webpage content form to Conor Kenny at ckenny@brewster-ma.gov no later than November 15th, 2021. Final Words The information you provide on your content form will help us get the new website launched. You’ll later be trained to add and remove content when the website is live. You will have the ability to manage your webpage and keep it updated. Building the new website will take effort on all our parts but providing a high-quality site will pay off. If we provide what people need on the website, emails and calls to staff will be reduced and users will be more satisfied when they quickly find what they need online. This website will be our public face and a critical part of our public engagement activities – let’s make it the best possible. Thank you for your help. Peter Website Subpage Content Submission Form Oct. 4 1 NEW BREWSTER WEBSITE – CONTENT FORM A. POINT OF CONTACT 1. Name of Website Point of Contact (person completing this form): 2. Phone: B. YOUR WEBSITE INPUT 1. Your Department/Board/Committee/Commission name: 2. Mission Statement. Review the mission statement that was provided to you. Indicate if the one provided is sufficient or provide a revised one here. 3. For Webpages with an Associated Committee/Board/Commission: a. Meetings. Write a sentence about when the body meets, e.g., “The Planning Board meets the first and third Wednesday of each month at Brewster Town Hall at 6pm.” b. Members. Provide the names, positions (chair or member), and end of current term for each member. 4. News and Announcements. No input needed here until the site is live. 5. List of Resources1.  Identify and provide resources the public will seek on your page. These can be policies, links to other pages (e.g., “FAQs,” “Committee Projects”), or links to websites external to the Town of Brewster, etc.  Provide the name of the item and either attach the identically-labeled document to your email or provide the link to it.  Extend the table as long as you need.  When you return this form, please attach all the documents you need to appear on your subpage “Resources” list (the navy blue column). Resource Name Type of Resource (website, PPT, Word, PDF, etc.) Example: “Shellfish Regulations” PDF labeled “Shellfish Regulations” 1 KATHY: How do you need to receive all this content for the navy blue column of resources? Does this table work? DIRECTIONS: Use this form to provide the initial information that will appear on the new Town website for your department, board, committee or commission. Refer to the subpage examples to see how this information will be displayed. Website Subpage Content Submission Form Oct. 4 2 Example: “Cape Cod Commission” Website: https://www.capecodcommission.org 6. Contact Us. Provide the names and titles of primary contact persons. 7. Address. Provide the street address for department/committee. 8. Phone. Provide the department/committee’s primary phone number. 9. Email:If you have a department or committee general email address, provide it here. 10. Fax. Provide a fax number, if one is used. 11. Hours of Operation: Provide the days and hours that staff are available. 12. Upcoming Events. No input needed until site is live. 13. Is there other important information that should appear on your page when it goes live? BREWSTER COMMUNITY PRESERVATION GRANT QUARTERLY PROJECT STATUS REPORT Name of CPA Recipient: Habitat for Humanity of Cape Cod, Inc. Quarter Ending Date: September 30, 2021 Project Title: Brewster Red Top Road Community Housing Project Representative/CPC Contact Name: Elizabeth (Beth) Hardy Wade, Director of Land Acquisition Address: 411 Main St., Suite 6A, Yarmouth Port, MA. 02675 Telephone Number: 508-362-3559 x 24/207-930-5918 cell Email: land@habitatcapecod.org Amount: $100,000 # of Homes: 2 Project Status: Permitting: Our ZBA application was submitted on 8/3/2021. The application will be heard on 10/12/2021. Our application was continued for several reasons from the 9/14/2021 hearing. Infrastructure: % Complete: Construction: % Complete: Our plan for Wall-raisings remains as anticipated for July 2023, with a 12-month construction period. Volunteers: Fundraising: We have two home-sponsorship pledges for $50k each. CPC approved a $100k grant. We submitted our FHLBB grant by its deadline; and are now waiting to hear regarding our award (December 2021). Private fundraising is in the beginning stages, reaching out to foundations, private individuals, and faith-based & community organizations. Homeowners: A date for family applications has not been determined yet. Events/Press: Project Timeline/Schedule: Pending permitting, we hope to begin infrastructure work in spring or summer of 2022. Issues/Comments/Concerns: None at this time. From: Community Development Partnership Sent: Thursday, September 30, 2021 4:24 PM To: faythe.ellis@outlook.com Subject: Save the date and join us: Housing 101 Workshop Lower Cape Housing Institute REGISTER HERE This Housing 101 Workshop is designed specifically to address barriers to housing production on the Lower Cape by providing effective strategies to increase housing in your town. In this training we will cover the basics about: Who needs housing Why housing is so hard to build What you can do to increase housing production in your town We’ll also discuss the best ways to talk about housing so that you can be an effective agent of change in your role as a municipal official. You will leave this training with the knowledge and language to support housing initiatives as well as a firm understanding of what must be done to solve your town’s housing crisis. Audience: this workshop is open to all and is especially helpful for new town staff and members of municipal boards and committees including: Select Boards, Finance Committee, Planning Board, Zoning Board of Appeals, Community Preservation Committee, Affordable Housing Trust, Affordable Housing Committee/Local Housing Partnership, Open Space Committee, Conservation Commission, Housing Authority. For questions, email Pelinda Deegan, Housing Advocacy Program Manager. Community Development Partnership | 3 Main Street Mercantile, Unit #7, Eastham MA 02642 Page 1 of 2 Town of Brewster 2198 Main Street Brewster, MA 02631-1898 Phone: (508) 896-3701 Fax: (508) 896-8089 Policy #58 Adopted January 28, 2019 TOWN OF BREWSTER PUBLIC ENGAGEMENT POLICY INTRODUCTION The Town of Brewster: Is committed to open and honest communication with residents, businesses, employees, and visitors. Recognizes that municipal decisions are improved by engaging residents and other stakeholders as appropriate. PURPOSES This policy’s purposes are to: Ensure the Town of Brewster facilitates public input into decision-making. Promote a well-informed community. Improve the quality and responsiveness of municipal decisions. Create an environment that encourages community participation. Forge a bond of trust and accountability between Town government and the public. PUBLIC ENGAGEMENT DEFINITION Methods through which members of the public become more informed about, and have the opportunity to influence, government decisions and projects. TYPES OF PUBLIC ENGAGEMENT Public Information/Outreach: Characterized by one-way government communication to inform residents and others about a public issue or policy matter. Examples include press releases, video-recorded meetings, and presentations. Public Consultation: Characterized by two-way communication; includes public officials inviting individuals to express their views or recommendations about proposed public actions and decisions. Examples include public meetings, community outreach meetings, surveys, and listening sessions. ROLES Decision-makers should: Seek to gain a sound understanding of views expressed by the public. Consider public input as part of the decision-making process. Explain the rationale for decisions. Office of: Select Board Town Administrator Page 2 of 2 Town of Brewster 2198 Main Street Brewster, MA 02631-1898 Phone: (508) 896-3701 Fax: (508) 896-8089 TOWN OF BREWSTER PUBLIC ENGAGEMENT POLICY The Public should: Become as informed as possible about the issue under consideration. Recognize that multiple factors, including public input, will shape municipal decisions. APPLICATION Public engagement: Should be integrated into planning for new policies, programs, capital projects, fee changes, and services at the earliest feasible point or at a pre-regulatory stage as appropriate. Should take place if significant changes to or elimination of an existing program, project, or service, are proposed. May be necessary at multiple points in certain more consequential government activities such as coastal retreat projects, road projects, or parcel purchases. Should include public review at the 30% design stage in projects where engineering or other designs are being developed, with design elements identified that were made as a result of any earlier public input. May take place in response to a community-initiated request. May include discussion of options, as well as points of consensus and disagreement. Will be enhanced by posting notices of engagement activities at Town Hall, on the Town website and social media, and other locations including local cable television. May be enhanced in some circumstances by use of a facilitator. May be enhanced in some circumstances with voluntary notification of abutters. RESPECTFUL PUBLIC DISCUSSION For public engagement to be effective, discussion should be conducted in a respectful and safe manner by all participants. ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ Office of: Select Board Town Administrator Boston • Hyannis • Lenox • Northampton • Worcester • www.k-plaw.com © 2016 KP Law, P.C. (v3) HOW TO CONDUCT A PUBLIC HEARING There are three types of Public Hearings: Adjudicatory Hearings – hearings to determine the legal rights, duties or privileges of specifically named persons or entities, such as license violations or dangerous dog hearings. Application Hearings – hearings to act on applications for a license, permit, variance or other approval. Regulatory Hearings – hearings on adoption or amendment to a public body’s rules or regulations. Basic Framework – Four Step Process Step 1 – Notice Prior to conducting any public hearing, proper notice must be given to all interested parties. Timing - Substantive law will dictate when the notice needs to be sent and to whom. In the absence of a statutory requirement, ten days’ notice is generally acceptable for due process purposes. At a minimum, the notice must comply with the Open Meeting Law by posting at least forty-eight hours prior to the hearing, except in an emergency, calculated as required by law. Content - Substantive law will also dictate the content of the notice. Generally, notice must include the date, time and location of the hearing, statutory basis, and a brief statement of facts. Delivery – Unless addressed by applicable substantive law, when individual notice is required, it should be sent certified mail and first class mail, or in any other manner reasonably likely to provide actual notice to interested parties, e.g. service by constable. Step 2 - Open the Hearing The Chair should open the meeting by reading the hearing notice into the record and asking staff to confirm that notice was published, posted and served upon interested parties as required by law. For Application hearings, the Chair should confirm that the application is complete. The Chair (or Town Counsel if present) should establish ground rules, informing those present that: testimony will be limited to the issues directly related to the subject matter of the hearing; only one person will be permitted to speak at a time; all discussion will go through the Chair; all parties will be expected to conduct themselves civilly; and argument between parties will not be permitted. The proceeding should be recorded and the recording preserved. Before taking testimony, witnesses must be sworn. The Chair may ask anyone who intends to testify to stand, raise his/her right hand and swear that “the testimony I am about to give in this matter is the truth, the whole truth and nothing but the truth.” Boston • Worcester • Northampton • Lenox • www.k-plaw.com © 2016 KP Law, P.C. (v3) Step 3 – Collect Evidence Adjudicatory Hearings generally proceed in two phases: (1) collection of evidence of the violation from staff and/or complaining parties; and (2) collection of evidence in defense from the subject of the hearing and/or supporting witnesses. Application and Regulatory Hearings also proceed in two phases: (1) collection of evidence from the applicant/proponent and those wishing to speak in favor of the application or regulation; and (2) collection of evidence from those in opposition to the application or regulation. For each person who testifies, the Chair should ask them to identify themselves by stating their name and address for the record. Witnesses may be questioned by members. In Adjudicatory Hearings, however, witnesses may first be cross-examined by a representative of the hearing target. Any documentary or physical evidence should be given a unique identifier as part of the record and made available for inspection by interested parties. Such documents must be maintained as part of the official meeting record. Step 4 – Deliberate and Decide When it is determined that all relevant testimony and evidence has been presented, the Chair should entertain a motion to “close the evidentiary portion of the hearing”. Once the vote is taken, the Chair should declare the evidentiary portion of the hearing closed and inform the public that deliberations will begin. Members must then deliberate, in open session and in a manner that can be followed by those in attendance, i.e., in loud, clear voices. For Adjudicatory Hearings, members will vote on two issues: (1) whether there was a violation; and (2) if so, what, if any, action should be taken. To insulate a decision from challenge, members must separately consider each violation and, in connection therewith, make specific findings of fact. For Application Hearings, members will vote on whether to grant the license, permit or approval, and if so, whether to impose any conditions thereon. In order to insulate the decision from challenge, members must separately consider each criterion for issuance and make specific findings of fact to support that criterion. For Regulatory Hearings, following submission of written or oral testimony, members will deliberate and then vote on whether to adopt, rescind or amend regulations. Once final votes are taken, the Chair should entertain a motion to close the public hearing, and staff should be directed to prepare proper notice of the decision or other action taken, in accordance with applicable law. For Adjudicatory and Application proceedings, written notice should be sent, certified and first class mail, as soon as possible to all interested parties including any right of appeal, and such notice may also be required to be filed with the municipal clerk. For Regulatory proceedings, further notice or publication of the decision may be required. Page 1 of 2 Boston  Hyannis Lenox  Northampton  Worcester © 2016 KP Law, P.C. (v3) Reasons for Convening Executive Session (M.G.L. c.30A, Sec. 21(a) – Effective July 1, 2010) 1. To discuss the reputation, character, physical condition or mental health, rather than professional competence, of an individual, or discuss the discipline or dismissal of, or complaints or charges against, a public officer, employee, staff member or individual. (See Rights of Individuals on reverse.) 2. To conduct strategy sessions in preparation for negotiations with non-union personnel or to conduct collective bargaining sessions or contract negotiations with non-union personnel. 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 public body and the chair so declares. 4. To discuss the deployment of or strategy regarding security personnel or devices, e.g., a sting operation. 5. To investigate charges of criminal misconduct or to consider the filing of criminal complaints. 6. To consider the purchase, exchange, lease or value of real estate, if the chair declares that an open meeting may have a detrimental effect on the negotiating position of the public body. 7. To comply with, or act under the authority of, any general or special law or federal grant-in-aid requirements. 8. To consider or interview applicants for employment by a preliminary screening committee, if the chair declares that an open meeting will have a detrimental effect in obtaining qualified applicants. This shall not apply to any meeting regarding applicants who have passed a prior preliminary screening. 9. To meet with a mediator regarding any litigation or decision; provided that (i) any decision to participate in mediation shall be made in open session and the parties disclosed and (ii) no action shall be taken with respect to the issues involved without deliberation and approval of the action at an open session. 10. To discuss trade secrets or confidential or proprietary information regarding activities by a governmental body as energy supplier, municipal aggregator or energy cooperative, if an open session will adversely affect conducting business relative to other entities making, selling or distributing energy. Page 2 of 2 Boston  Hyannis  Lenox  Northampton  Worcester © 2016 KP Law, P.C. (v3) Procedures for Convening Executive Session 1. The meeting must be convened in an open posted session, with executive session listed on the agenda when reasonably anticipated by the chair. 2. The chair states the purpose for the executive session, stating all subjects that may be revealed without compromising the purpose of the executive session (and, under exemptions 3, 6, and 8, makes the required declaration). 3. A majority must vote in a recorded roll call to go into executive session. 4. The chair announces whether the meeting will reconvene in open session. 5. Accurate minutes and other records of the executive session must be maintained, with all votes recorded by roll call. Rights of Individuals 1. When a governmental body wishes to discuss: (a) the reputation, character, physical or mental health of an individual; or (b) the discipline or dismissal of or complaints or charges brought against a public officer, employee, staff member or individual, it must notify that person in writing at least 48 hours in advance of the meeting, not including Saturdays, Sundays or holidays. 2. Written notice may be waived by the individual. 3. The individual may request that the meeting be held in open session. 4. If an executive session is held, the individual has the right to be present for deliberations and to speak, and to have counsel or a representative of choice present for the purpose of giving advice but not for active participation. 5. The individual may have an independent record of the executive session created by audio recording or transcription, at the individual’s expense. 617.556.0007 | 1.800.548.3522 | www.k-plaw.com | © 2020 KP Law, P.C. Participation in Executive Session Prepared for the Massachusetts Municipal Association Meeting, January 2020 The Open Meeting Law [G.L. c. 30A, §§18-25] permits municipal boards and committees to convene in executive session for certain specific and enumerated reasons. The purpose of this memorandum is to address the often asked question of who may be present in an executive session in addition to the members of the board or committee that has convened the meeting. This question arises most frequently when a board meets in executive session to discuss strategy with respect to litigation, value of real property, and collective bargaining and non-union contract negotiations. In addition, this memorandum will address the right of an individual to be present if the board convenes an executive session to discuss the reputation or character of an individual or to hear complaints or charges against that individual. As a brief reminder, when entering the executive session portion of a public meeting, several procedures must be followed. The chair of the public body must (1) convene the meeting in open session (and the meeting notice must so provide if the executive session is the only matter to be undertaken at the meeting), (2) state the reason for the executive session, including the subjects to be discussed without compromising the purpose of the executive session, (3) take a roll call vote of the body to enter executive session, (4) declare whether open session will be resumed following the executive session, and (5) cause accurate records of the executive session to be maintained. G.L. c. 30A, §21(b). In the absence of authorized use of remote participation, members of the public body who wish to participate must be physically present at the meeting location. If remote participation has been authorized, the member must state at the beginning of the executive session that no other individual is present or able to hear the discussion at the remote location, or seek approval from the public body that such an individual may be present. 940 CMR 29.10(7)(d). Litigation Strategy The Open Meeting Law permits a public body to convene in executive session to “discuss strategy with respect to ... litigation if an open meeting may have a detrimental effect on the litigating position of the public body and the chair so declares...” G.L. c. 30A, §21(a)(3). [emphasis added]. Under this exemption, the public body may invite the participation of municipal employees, consultants, or others who may be in a position to assist the board in its deliberations. Such individuals may include attorneys, expert witnesses, and other consultants representing the municipality. In addition, the body convening the executive session may, at its discretion, invite other boards to participate in executive session (of course, such boards must also post their meeting in compliance with the Open Meeting Law). 617.556.0007 | 1.800.548.3522 | www.k-plaw.com | © 2020 KP Law, P.C. A public body may not, however, invite into the executive session opposing parties to the litigation, or opposing counsel, for the purpose of conducting settlement discussions or for any other purpose. As the Open Meeting Law only permits an executive session to discuss strategy with respect to litigation, it is plain that such conversations cannot be had in the presence of an opposing party to the litigation. Remember that in order to enter executive session under this exception, the chair must declare that a discussion in open session would jeopardize the litigation position of the municipality. Some may argue that if the public body is unable to have a frank closed-door session with the opposing party, this rule may hamper or impede settlement discussions. In order to pursue settlement, however, the board, as part of its executive session, may formulate and/or evaluate settlement proposals and then appoint counsel, a single member of the board (such as the chair), or a staff employee to meet with the opposing side to actually conduct settlement discussions. These discussions can even occur simultaneously. However, the public body should avoid appointing more than one of its own members to negotiate a settlement, however, because even if the appointees do not constitute a quorum of the public body, they would constitute a subcommittee subject to the Open Meeting Law. Collective Bargaining and Non-Union Contract Negotiations Under this exemption, a public body may convene in executive session either to discuss strategy with respect to negotiations, or actually conduct negotiations, with union representatives or non-union personnel. If a public body is meeting to consider strategy with respect to such matters, the union or non-union personnel may not be invited to participate in the executive session because in order to be in executive session, a declaration must be made that having the discussion in open session would be detrimental to the interests of the public body. However, any other person that may be useful to the public body may be invited to join such strategy session. If there is a breach of confidentiality or any other issue related to the executive session procedures or protocols that requires discussion, the municipal body must resume open session. See AG-OML-2013-129. Note that when meeting for strategy purposes, the public body need not name the particular union or non-union personnel at issue if doing so would undermine the public body’s negotiating position. However, when the executive session is held for the purpose of actually conducting negotiations, the union or the non-union personnel must be identified by name on the meeting notice. This exemption is often misunderstood and asserted in the context of contract negotiations generally. However, the exemption applies only to collective bargaining contracts and contracts with non-union personnel. Thus, this exemption does not permit a municipal board to convene in executive session to conduct contract negotiations with vendors or other firms or individuals providing goods or services to the municipality. Value of Real Property A municipal board may convene in executive session “to consider the purchase, exchange, taking, lease or value of real property if the chair declares that an open meeting may have a detrimental effect on the negotiating position of the public body.” G.L. c. 30A, § 21(a)(6). [emphasis added]. 617.556.0007 | 1.800.548.3522 | www.k-plaw.com | © 2020 KP Law, P.C. This exemption allows for executive session discussions of strategy with respect to land acquisition or disposal, or with respect to the value of real property only when an open meeting may have a detrimental effect on the negotiating position of the body. Thus, a municipal board may not meet in executive session with the “other side” to negotiate a sale or acquisition of real estate. Thus, a municipal board may not meet in executive session with private developers or landowners to negotiate the terms of a land acquisition or disposal; however, as discussed above, a public body may designate counsel or a single member of the body to negotiate with the landowner or developer. Note, further, that the Division has indicated that a municipality may not meet in executive session simply to consider the purchasing of land in the absence of a negotiation process or position to protect. See AG-OML-2016- 47. Complaints Against Individual Public Employees A municipal board may enter executive session to discuss the “reputation, character, physical condition or mental health… of an individual, or to discuss the discipline or dismissal of, or complaints or charges brought against, a public officer, employee, staff member or individual.” G.L. c. 30A, § 21(a)(1). This purpose includes discussing employee matters if such discussion will involve the “reputation, character, physical condition or mental health” of the individual, but it is important to distinguish such discussions from those simply pertaining to the individual’s “professional competence,” which should still be held in open session. This purpose triggers a number of notice and hearing requirements with respect to the individual being discussed. G.L. c. 30A, §21(a)(1). The individual to be discussed must be provided written notice that they will be discussed at the meeting no less than 48 hours before the proposed executive session and that they will be provided with the opportunity to present information on their own behalf. The individual also has the right to have the discussion held in open session, and may waive the notification requirement or the right to be heard. The individual may also have counsel or a representative (i.e. union representative) present during the executive session to advise the individual, but counsel or the representative may not “automatically” participate in the deliberations. The individual may also record the meeting at the individual’s discretion. Typically, if the subject of the executive session intends to record the meeting, the municipal body should also consider recording. While the individual to be discussed must receive notice, the municipal body is not required by the Open Meeting Law to provide the individual with specific information regarding the complaints submitted, although certain due process rights may nevertheless be implicated depending on the situation. OML-2016-15. Finally, if a particular individual has submitted a complaint against the municipal employee, that individual may also be present, at the public body’s discretion, to provide information and details relating to the complaint. OML-2017-49. In the event that a preliminary screening committee is considering an applicant for employment, it may enter executive session under G.L. c. 30A, §21(a)(8). Separately, if a complaint involves criminal allegations, the municipal body may invoke the fifth listed purpose for entering executive session, investigation of “charges of criminal misconduct.” G.L. c. 30A, §21(a)(5). In these circumstances, however, the individual at issue has no right to notice of the meeting, to attend the meeting or to speak on their own behalf. 617.556.0007 | 1.800.548.3522 | www.k-plaw.com | © 2020 KP Law, P.C. Summary As the above discussion highlights, there are many factors to consider before entering executive session. Importantly, the reason for entering executive session may dictate that certain persons or representatives may not participate in such session. It is important to identify the particular purpose for executive session, therefore, to ensure that persons prohibited from participation are not inadvertently allowed to attend that portion of the meeting. Please contact Attorney Brian W. Riley (briley@k-plaw.com) or any other member of our Government Information and Access group at 617-556-007 for further information about the use of executive session and the Open Meeting Law generally. Disclaimer: This information is provided as a service by KP Law, P.C. This information is general in nature and does not, and is not intended to, constitute legal advice. Neither the provision nor receipt of this information creates an attorney-client relationship with KP Law, P.C. Whether to take any action based upon the information contained herein should be determined only after consultation with legal counsel. 617.556.0007 | 1.800.548.3522 | www.k-plaw.com | © 2020 KP Law, P.C. Open Meeting Law – Preparing a Meeting Notice Prepared for the Massachusetts Municipal Association Meeting, January 2020 The Open Meeting Law requires the chair of the public body to prepare a meeting notice listing those topics that the chair “reasonably anticipates” will be discussed at the meeting. The Attorney General’s Division of Open Government (“Division”) interprets this requirement in a consistently strict manner. This memorandum seeks to summarize some of the more significant decisions regarding notice violations from the Division and courts. The Division’s decisions can be found on its website at http://www.mass.gov/ago/government-resources/open-meeting-law/. Law and Regulations The Opening Meeting Law requires that the notice be posted forty-eight (48) hours in advance of the meeting, excluding Saturdays, Sundays and legal holidays. The notice must include, along with the date, location, and time of the meeting, “a listing of topics that the chair reasonably anticipates will be discussed at the meeting.” G.L. c.30A, §20(b). [emphasis added]. Regulations promulgated by the Attorney General provide further that public bodies are required to list such topics with “sufficient specificity to reasonably advise the public of the issues to be discussed at the meeting." 940 CMR 29.03. In 2017, the Attorney General promulgated new regulations permitting town or city websites to serve as “all hours” posting locations. 940 CMR 29.02. A city or town adopting the website method of posting notice must file a written notice of adoption with the Attorney General, 940 CMR 20.03(1)(c), and post a written notice in city or town hall describing the website and how to access it. 940 CMR 29.03(2)(b)(2). The city or town must also “make every effort to ensure that the website is accessible to the public at all hours,” and if it becomes unavailable for any reason access must be restored within six (6) business hours or the meeting re-posted for another date and time. 940 CMR 20.03(7). In order for the website to be the official posting location, the chief executive officer of the municipality must approve the same. Division of Open Government Determinations The Division takes the position in a series of decisions that the matters included on the meeting notice must be itemized in specific detail, rather than listing only boilerplate headings or setting forth simple statements of the subject matter anticipated to be discussed. In drafting such topics, therefore, the specific items to be discussed must be individually listed and identified; if it is anticipated that votes may be taken, such information may also be included on the meeting notice. To the extent that the chair of the public body is 617.556.0007 | 1.800.548.3522 | www.k-plaw.com | © 2020 KP Law, P.C. aware of any particular speakers or presentations, it is likely that the Division would find that such information must also be listed on the meeting notice. Further, if the chair anticipates that an executive session might be needed, the meeting notice must include an item for such purposes, containing such detail as can be provided without compromising the purpose for the executive session, as well as whether an open session will resume after the executive session. Specific examples follow. 1. Recurring General Business Items In OML-2016-167, Swansea Board of Selectmen (December 6, 2016), the Division reiterated the need for specificity when posting notices of public meetings. The Board of Selectmen had noticed two items to be discussed, “Annual Re-Appointments” and “Trash Fee Abatements”. The Division concluded that such items were not sufficiently detailed for the public to be informed as to what would occur at the meeting. In particular, these notice items were deemed insufficient on their face because they did not list the candidate for reappointment or for the particular abatements requested. Practical Implications: These are just some examples of boilerplate headings that are not permitted. It is likely appropriate to assume that the terms “Old Business”, “New Business”, “Administrator’s Update”, “Reappointments”, “License Renewals”, and the like, can no longer be used to provide notice of particular matters that can be reasonably anticipated by the chair of a public body. Instead, if such notice items are used, below them must appear a list of the specific details of the topics to be discussed. In OML-2013-46, Dighton Police Station Building Committee (April 16, 2013), the Division received a complaint that a notice including the item “RFP for professional service” did not contain sufficient specificity to provide the public with an understanding of the topic that would be discussed. While there were additional facts that made the overall notice confusing, including that the original posted included the wrong date and required re-posting, the Division ultimately decided that the term, “professional services” was too vague to sufficiently notify the public of the particular service that would be sought. Of note, the Division also cautioned public bodies against using acronyms in a meeting notice, even if such acronyms are common, “municipal government vernacular.” See also OML-2015-116, Barnstable County Board of Regional Commissioners (August 14, 2015) (Division again cautioned against using acronyms in notices of public meetings). Practical Implications: A meeting notice must be tailored towards a public audience that is unfamiliar with the matters to be discussed, rather than to the municipal employees and parties that often attend such meetings. The overall circumstances concerning the meeting and the topic at issue will be considered when determining if the notice was sufficient. Further, it now appears well established that the use of acronyms should be avoided in meeting notices. 2. Form of Notice In Town of Swansea v. Maura Healey, Civil Action No. 2017-3269-E (Suffolk Sup. Ct. October 29, 2018), the Superior Court held that the Division’s determination of how a notice should be posted and the level of detail 617.556.0007 | 1.800.548.3522 | www.k-plaw.com | © 2020 KP Law, P.C. required was arbitrary because the Division applied subjective criteria to determine whether a notice was sufficiently detailed. This is one of few court decisions establishing a limit on the Division’s authority to enforce the Open Meeting Law. The Town had used a certain bulletin board to post its notices and, when a public meeting was to involve an unusually large number of appointments, it directed residents to obtain a full list of appointments from the Town Clerk. The Division approved that notice practice, and the Town continued to follow that process for a few meetings. When a shorter notice was posted that could fit on the bulletin board, however, directing the reader to the Town’s website, the Division concluded that that notice violated the Open Meeting Law. The Superior Court found such arbitrary approvals of notices based on factors not included in the Open Meeting Law were beyond the authority of the Division and quashed the Division’s decision. Practical Implications: The Division now consistently requires all notices contain all the information required by law, so cities and towns should not attempt to use summary notices or to direct residents to the Town Clerk to obtain a full list of meeting items. That being said, notices directing residents to visit websites is still permitted when the website serves as the official means of notice posting. 3. Verbiage In OML-2019-102, Massachusetts Board of Building Regulations and Standards (August 14, 2019), the Division concluded a notice item stating the Board would “discuss” a letter was insufficiently detailed since the Board ultimately discussed and voted on the items addressed by the letter. The President of the Massachusetts Federation of Building Officials sent the Board a letter reporting that the town of Douglas was considering replacing its building inspector with an inspection company, which the author considered to be a violation of law. At the meeting in which the letter was discussed, the Board discussed the letter and then voted to send the town of Douglas a guidance letter in relation to replacing its building inspector with an inspection company. The Board argued it did not put any more detail in the notice because it did not have any more information with regards to the allegations contained in the letter, and did not want to summarize or repeat false information in the notice. The Division disagreed, concluding that the Board had more verifiable information than it provided in the notice and should have included in its meeting notice that the letter under discussion pertained to the town of Douglas and its building inspector. Further, even if the Board in fact notified the Town, the notice is intended to notify the public, not only the subject of the items discussed. Practical Implications: To ensure that a notice item is complete, it should include both the subject of the item and the public body’s reasonably anticipated actions in relation thereto. While a public body must, of course, remain neutral on contested agenda items before the meeting at which such items are discussed, the body must also provide detailed, accurate, and sufficient notice to the public of the items to be discussed. 617.556.0007 | 1.800.548.3522 | www.k-plaw.com | © 2020 KP Law, P.C. 4. Executive Session Notices In OML-2017-49, Peru Board of Selectmen (March 28, 2017), the Division considered whether the Board provided a public officer, who was the subject of a complaint to be discussed in executive session, with sufficient notice and opportunity to be heard. The Division also considered whether the notice “Executive Session to discuss strategy with respect to ongoing litigation” was sufficient to invoke the litigation exception to the Open Meeting Law, G.L. c. 30A, §21(b)(3), and enter executive session to discuss a pending appeal before the Appellate Tax Board. The Division concluded that, while the Board provided verbal notice to the subject of the complaint discussed in executive session, it did not provide written notice as required by G.L. c. 30A, §21(a)(1). Further, while the Division noted its willingness to defer to the public body’s determination of the necessity of withholding the details of the litigation, it decided the evidence before it did not provide any reason that disclosing the identity of the litigation in this instance would compromise the purpose of going into executive session, “as it was a publicly filed appeal.” In the absence of such a reason, the executive session notice must identify the particular litigation discussed in executive session. Practical Implications: A public employee that is the subject of a complaint must be notified in writing no later than forty-eight (48) hours before that they will be discussed in executive session and be provided the opportunity to speak on their own behalf. Further, when invoking the so-called litigation exception to the Open Meeting Law, the particular litigation to be discussed must be disclosed unless the public body can specifically identify reasons that disclosing such information would compromise the municipality’s litigation strategy. 5. Discussion of Particular Permits or Renewals In OML-2011-11, Freetown Soil Conservation Board (February 15, 2011), the Division considered whether an agenda item entitled “Renewal of Fall Soil Permits” was sufficient notice to allow the Soil Conservation Board to act on particular permit renewals. The Division noted that where the Chair reasonably anticipated action on specific permits, the individual permits were required to be listed with “the details of those specific permits, including the name of the applicant and the location under consideration.” The Division suggests the meeting notice should have taken the following form: Renewal of Fall Soil Permits #496 [Name of Applicant], 5 acres on the south side of the Assonet River #497 [Name of Applicant], 53 Dr Braley Road #499 [Name of Applicant], 5 acres on Braley Road #498, [Name of Applicant], 4 acres on Chace Road #500, [Name of Applicant], AA Will Quarry Practical Implications: Form of Notice Items - This case, and those that have followed it, is of particular importance to land use boards, those boards that grant annual licenses or permits, and those that make annual appointments. In all such cases, the meeting notice, to the extent possible, 617.556.0007 | 1.800.548.3522 | www.k-plaw.com | © 2020 KP Law, P.C. must list the particular licenses, permits or appointments to be acted upon, as well as detailed information about the applicant (i.e., name and address for land use applications, and, to the extent applicable, applicant names for appointments). If the meeting notice does not list on the meeting notice itself each such item individually, it may refer to an attached list, or, if the website is the proper posting location, include a link to the complete list. 6. Negotiations with Non-Union Personnel In OML-2011-15, Melrose School Committee (May 1, 2011), the Division considered whether the following meeting notice was sufficient: “To conduct strategy sessions in preparation for negotiations and, if appropriate, to conduct contract negotiations with nonunion central office administrative personnel.” Although the person with whom the School Committee would be negotiating was likely obvious to persons familiar with the facts, the Division concluded that the notice must also include the name of that person. The Division stated, “Providing the public with this additional information would not have been detrimental to the Committee's negotiating position, particularly as [the individual] was aware of the session and had been invited to attend for the contract negotiation portion.” Practical Implications: This case makes clear that when a board intends to enter executive session for the purpose of negotiating with non-union personnel, the name and office of the non-union personnel must be included in the meeting notice. The same reasoning is equally applicable to notice items for conducting negotiations with collective bargaining units. In OML-2011-32, Templeton Board of Selectmen (July 26, 2011), the Division considered whether the following meeting notice was sufficient to allow discussion in executive session of charges against a public officer: “Complaint of charges against a public officer, employee, staff member or individual. May go into Executive Session under exemption #1 under the Open Meeting Law.” The Division found that the notice was sufficient, but stated further: Given the lack of detail contained within the meeting notice, a member of the public could have had questions about the exact nature of the discussion anticipated by the public body. However, the meeting notice complied with the letter of the Open Meeting Law because it stated the reason for the anticipated executive session, while balancing the privacy rights of the individual who was the subject of the complaint. Practical Implications: A board entering executive session pursuant to exemption (1) may, and often must, omit from the meeting notice the name of the individual to be discussed. The ability to utilize such exemption, however, includes a requirement that the public body otherwise preserve the privacy rights of that individual by not disclosing private information concerning that person. Summary Summary, the Open Meeting Law now requires that detailed meeting notices be prepared, listing all of the particular items to be discussed at the meeting. The level of specificity required is to be judged from the perspective of an individual who is unfamiliar with the municipality and the action to be taken, and the 617.556.0007 | 1.800.548.3522 | www.k-plaw.com | © 2020 KP Law, P.C. notice must be sufficiently specific for any member of the general public to anticipate what might be discussed at the meeting. Preparation of a properly detailed meeting notice will ensure that the public body’s hard work is not undermined by technical challenges to its compliance with the Open Meeting Law. Please contact Attorney Janelle M. Austin (jaustin@k-plaw.com) or any member of our Government Information and Access group at 617-556-0007 with any further questions concerning meeting notices or the Open Meeting Law generally. Disclaimer: This information is provided as a service by KP Law, P.C. This information is general in nature and does not, and is not intended to, constitute legal advice. Neither the provision nor receipt of this information creates an attorney-client relationship with KP Law, P.C. Whether to take any action based upon the information contained herein should be determined only after consultation with legal counsel. 617.556.0007 | 1.800.548.3522 | www.k-plaw.com | ©2019 KP Law, P.C. PUBLIC RECORDS LAW - BEST PRACTICES January 2019 The “new” Public Records Law has been in effect since January 1, 2017. Municipalities have made great strides to implement the law, but challenges remain. Below are a few strategies that may be used to develop appropriate best practices.  Public Records Status of E-mail: The Supervisor of Records has emphasized that the “use of personal email addresses by government officials, employees and/or board and commission members while conducting any day to day business of a government entity renders the emails and email addresses public records.” See SPR 17/1651. o As records requests often seek copies of e-mails, it is critical that all e-mails sent or received by employees, officials and volunteers, acting in their official capacities, be properly saved and stored, both to comply with records retention requirements (see below) and to facilitate efficient responses to requests. o Municipalities should consider providing all municipal employees, officials and volunteers with “official” municipal e-mail accounts, which, in turn, are backed up by appropriate municipal servers, to be used exclusively for public business. o If that goal is either technologically infeasible or financially impractical, we suggest that alternatives be explored, such as establishment of a policy whereby volunteers create private e- mail addresses to be used solely for government business purposes, with all official communications copied to a government e-mail address, thereby ensuring proper retention of all records subject to the PRL.  Retention of Public Records: Municipal officials and staff should review records retention policies and practices to ensure that public records, including e-mails, are property maintained in accordance with law. While most public records must be maintained for a period of no less than seven years, certain records, such as meeting minutes, are permanent records. The Municipal Records Retention Schedule, available online at https://www.sec.state.ma.us/arc/arcpdf/ Municipal_Retention_Schedule_20161109.pdf, sets forth detailed records retention schedules for commonly used records, both generally and by department.  Personal Information: Consideration should be given to review of existing forms to limit collection of personal information to that which is required by law, and further to adopting internal procedures to properly maintain the privacy of such information, including review and redaction of such information in response to a records request (for example, medical information, social security numbers, drivers’ license numbers and bank/financial account numbers, or information about the receipt of government assistance). 617.556.0007 | 1.800.548.3522 | www.k-plaw.com | ©2019 KP Law, P.C.  Use of Municipal Website: Where technological infrastructure permits, utilize the municipal website to post commonly requested records not generally subject to withholding or redaction under the exemptions to the PRL or the attorney-client privilege. Such records include but are not limited to: open session meeting agendas, packets and minutes; permit decisions; bylaws, charters, rules and regulations; executed contracts; operating and capital budget information; and other information of general interest. The municipality may even wish to post responses to public records requests to the website. It is faster, easier and less expensive to direct people to the municipal website than it is to locate and copy records. Visit our Public Records Resources Page at http://k-plaw.com/resources/public-records-law-resources/ for more on the Public Records Law. Should you have any questions concerning Public Records Law best practices, please contact Attorneys Michele Randazzo (mrandazzo@k-plaw.com) and Janelle Austin (jaustin@k-plaw.com) or any of the attorneys in our Government Information and Access Group at 617.556.0007. Disclaimer: This information is provided as a service by KP Law, P.C. This information is general in nature and does not, and is not intended to, constitute legal advice. Neither the provision nor receipt of this information creates an attorney-client relationship with KP Law, P.C. Whether to take any action based upon the information contained herein should be determined only after consultation with legal counsel. 617.556.0007 | 1.800.548.3522 | www.k-plaw.com | ©2019 KP Law, P.C. Public Records Law Update January 2019 Municipalities and public entities throughout the Commonwealth continue to adopt strategies to best implement new requirements imposed by the January 1, 2017 amendments to the Massachusetts Public Records Law (“PRL”). The following key issues that have emerged since the new PRL was enacted. Level of Specificity Required in Response to Public Records Requests. A presumption exists that all records held by a municipality are public records subject to mandatory disclosure. It is therefore the municipality’s burden to prove the application of an exemption justifying non-disclosure. Recent determinations issued by the state Supervisor of Records (“Supervisor”) reiterate and strongly emphasize that the response prepared by the Records Access Officer (“RAO”) must demonstrate with specificity the application of an exemption to the PRL or the attorney-client privilege as the bases for withholding records or portions thereof. Blanket invocation of an exemption or the privilege continues to be generally insufficient to support withholding of a record in its entirety. Instead, the Supervisor typically require that records be produced subject only to limited redaction of the portion or portions clearly exempt from disclosure. For all of these reasons, and because the Supervisor has only a limited timeframe to resolve appeals, it is imperative that the 10-business day response letter prepared by the RAO clearly and specifically detail the application of an exemption or the privilege to each portion of any record that the RAO wishes to withhold. The case of Healey v. Cruz, Suffolk Superior Court (November 27, 2018), illustrates this point. That case involved public records requests made by the Boston Globe to the offices of all Massachusetts district attorneys and the Attorney General for certain criminal case information maintained in their computer databases. The Globe appealed the non-compliance of three district attorneys, and the Supervisor agreed with the Globe, ordering that the requested records be produced. When the three district attorneys refused to comply with the orders, the matter was referred to the Attorney General, who sought enforcement of the orders. The Superior Court concluded that the district attorneys’ arguments justifying withholding were overly broad and without particular reference to applicable exemptions for each category of information sought. Importantly, the case reiterated that use of a government database to easily generate a report responsive to a records request is required by the PRL, and is not the equivalent of “creation” a new record, which action is not subject to the PRL. Unique Right of Access. Generally, any request for records constitutes a public records request subject to the law and its implementing regulations, 950 CMR §§ 32.00 et seq. However, 950 CMR § 32.06(g) and § 32.08(a) provide that a request for records does not constitute a public records request and trigger the appeal process where the individual has a “unique right of access” by statutory, regulatory, judicial or other applicable means. The Supervisor has declined appeals when the public records in question are the subject of and directly related to a dispute in active litigation. 617.556.0007 | 1.800.548.3522 | www.k-plaw.com | ©2019 KP Law, P.C. (See, e.g, SPR 18/1717; SPR 18/932; SPR 18/770; SPR 17/1779). To demonstrate the application of the “unique right of access” provision, in preparing its initial 10-business day response, a RAO must: (1) specifically detail that the particular records sought are the actual subject of a dispute in active litigation, administrative hearing or mediation; (2) cite to the docket and any other particulars relative to such matter; and (3) explain that the requester has a unique right of access to the responsive records through alternative means, such as court discovery processes or under administrative regulations, citing thereto. Assessment of Fees. The Supervisor has concluded that a requester may not separate a public records request into less than two hour increments to circumvent the fees a public entity may lawfully charge under the PRL. Similarly, the Supervisor has concluded that a public entity is not required to separate a request into two hour increments. (See SPR 18/1726). A custodian may always, however, waive fees at its discretion in a manner consistent with law. Petitions for Relief. There is no express mechanism in the PRL or its implementing regulations whereby a RAO can seek permission from the Supervisor to simply not respond to a public records request, even if the request is from someone who makes frequent, redundant requests. Nonetheless, RAOs do request such relief from the Supervisor, often in conjunction with a request for more time to respond to burdensome requests. While it is uncommon for the Supervisor to grant such relief, we are aware that the Supervisor has granted such a petition where the municipality demonstrated that the requestor had already obtained the requested documents, and that many of the records sought were created by the requester. In that limited context, the Supervisor concluded that the municipality had established the request was “part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity” as required by G.L. c.66, §10(c). (See SPR 17/1282). As the Supervisor’s action in that case is the exception rather than the rule, we continue to advise communities faced with numerous, ongoing, or duplicative records requests from the same requester to take the administrative steps needed to demonstrate the burden of such requests. For example, a RAO may wish to maintain written logs of all public records requests, including: name of the requester; date of the request; specific records requested; person or official to whom the request was directed; date of response; and a summary or copy of the response. This information will be important in any attempt to convince the Supervisor to relieve a RAO from the obligation to provide a response to a particular request or requests, or in the event of a law suit. Additionally, RAOs may wish to provide for the posting of all responses to public records requests and other materials to facilitate quicker and easier responses to requests. Should you have any questions concerning the Public Records Law, please contact Attorneys Michele Randazzo (mrandazzo@k-plaw.com) and Janelle Austin (jaustin@k-plaw.com) or any of the attorneys in our Government Information and Access Group at 617.556.0007, or visit our Public Records Resources Page at http://k- plaw.com/resources/public-records-law-resources/. Disclaimer: This information is provided as a service by KP Law, P.C. This information is general in nature and does not, and is not intended to, constitute legal advice. Neither the provision nor receipt of this information creates an attorney-client relationship with KP Law, P.C. Whether to take any action based upon the information contained herein should be determined only after consultation with legal counsel. Boston • Hyannis• Lenox • Northampton • Worcester • www.k-plaw.com © 2017 KP Law, P.C. THE PUBLIC RECORDS LAW – EFFECTIVE JAN. 1, 2017 G.L. c.66, §10 and G.L. c.4, §7(26) Basic Facts •A presumption exists that all governmental records are public records subject to mandatory disclosure upon request, unless a statutory exemption is applicable. •The law applies to any kind of “document” made or received by a public officer or employee, regardless of its format, such as papers, maps, recordings, e-mails, computer generated or stored records, etc. •The law applies to records in existence and in the custody of the public entity. Therefore, a public entity is not required to either create a record in response to a public records request, or answer questions posed by the requester. •A public records request may be made in person or in writing; a public entity is not obligated to respond to requests made by telephone only but may do so in its discretion. •A Records Access Officer (“RAO”) or other custodian of public records is presumed to have superior knowledge of the records in his or her custody or in the custody of the public entity generally, and even if a records request is not precise, RAOs/records custodian should use their superior knowledge of the records to attempt to identify and provide responsive records. •Generally, requesters may not be asked why they are seeking a particular record, subject to limited statutory exceptions. The Response •A public entity must respond to a records request within 10 business days following receipt of the request. •A public entity must provide a written response if any record(s) sought by the requester will not be produced or will be redacted. That written response has specific required elements. See KP Law reference card, “New Public Records Law - Responding to a Public Records Request” for more information. •Pursuant to the Public Records Access Regulations, 950 CMR 32.00 et seq., a public entity may charge a requesting party the following fees: (1) Photocopies (black and white) single or double sided, $.05 per page; computer printouts (black and white), $.05 per page, unless otherwise specified by statute; and for records not susceptible to ordinary means of reproduction, the actual cost to provide a copy. (2) Search time (i.e., the time necessary to search for and copy responsive records) or segregation time (i.e., the time necessary to delete or redact protected information from records otherwise subject to disclosure); such fee to be determined at the pro-rated hourly rate of the lowest paid employee capable of performing the search, but no more than $25 per hour. Municipal RAOs may seek permission of the Supervisor of Records to charge a higher rate, however. NOTE: Municipalities with 20,000 or more residents may not charge for the first two hours of work. Agencies may not charge for the first four hours of work. There may be further limitations upon the time that may be charged for segregation and redaction. •The analysis a public entity undergoes upon receipt of a public records request is generally the same regardless of the identity of the requester, except in certain limited circumstances, such as where the requester or requester’s representative has a “unique right of access” as a result of statutory, regulatory or other judicial means (i.e., requests for abutters’ lists in land use permitting matters, union information requests pursuant to G.L. c. 150E, and requests from litigants in civil or criminal cases). Boston • Hyannis• Lenox • Northampton • Worcester • www.k-plaw.com © 2017 KP Law, P.C. Frequently Asserted Exemptions •Exemption (a) allows withholding of records that are “specifically or by necessary implication exempted from disclosure by statute.” •Exemption (c) allows withholding of “personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” •Exemption (d) allows withholding of “inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based.” •Exemption (e) allows withholding of “notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit.” •Exemption (f) allows withholding of “investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” •Exemption (h) allows withholding of “proposals and bids to enter into any contract or agreement until the time for the opening of bids in the case of proposals or bids to be opened publicly, and until the time for the receipt of bids or proposals has expired in all other cases; and inter-agency or intra-agency communications made in connection with an evaluation process for reviewing bids or proposals, prior to a decision to enter into negotiations with or to award a contract to, a particular person.” •Exemption (i) allows withholding of “appraisals of real property acquired or to be acquired until (1) a final agreement is entered into; or (2) any litigation relative to such appraisal has been terminated; or (3) the time within which to commence such litigation has expired.” •Exemption (n) allows a records custodian, who reasonably believes that disclosure is “likely to jeopardize public safety” to withhold records including, but not limited to, “blue prints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety, or cyber security, of persons, buildings, structures, facilities, utilities, transportation or other infrastructure located within the commonwealth.” •Exemption (o) allows withholding of “the home address, personal email address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in section 167 of chapter 6.” 617.556.0007 | 1.800.548.3522 | www.k-plaw.com | ©2019 KP Law, P.C. Open Meeting Law Update January 2019 In 2018, several court cases were decided with implications under the Open Meeting Law (“OML”), G.L. c.30A, §§18-25. As municipalities continue to develop OML best practices, these recent notable court decisions may help inform decision making. Corey Spaulding v. Town of Natick School Committee, Middlesex Superior Court (November 21, 2018) — Public Comment During Public Meetings In this case, the Middlesex Superior Court concluded that the Natick School Committee violated free speech rights when it silenced persons during the public comment portion of certain meetings. The School Committee had, as a matter of policy, allowed "Public Speak" segments of School Committee meetings. The court concluded that the Committee “ha[d] opened [the meeting] for use by the public as a place to assemble” and discuss School Committee-related topics, thereby creating a designated public forum for purposes of the First Amendment. Under the First Amendment, the government may only impose reasonable time, place and manner restrictions o n speech occurring in a designated public forum. Thus, the court concluded that the Committee improperly limited the comments made by members of the public which were critical of the Committee, in violation of their free speech rights. This is a Superior Court decision, and, therefore, binding only against the Natick School Committee. While the OML (G.L. c. 30A, § 20(g)) gives the public body chair latitude to regulate public participation in open meetings, this decision serves as a strong caution that such authority should not be exercised in a way to suppress free speech rights . Thus, where a multiple member body allows the public to speak during designated portions of meetings, such as “public comment,” or “open forum”, its public comment policies and practices must ensure that any restrictions on such discussions, including as to time, are specific and narrowly tailored to the public body’s interest. Town of Swansea v. Maura Healey, Suffolk Superior Court (October 29, 2018) – Sufficiency of Meeting Notices General Laws c.30A, §20(b) provides that public body meeting notices must "be printed in a legible, easily understandable format and shall contain the date, time and place of the meeting and a listing of topics that the chair reasonably anticipates will be discussed at the meeting.” Public bodies throughout the state continue to grapple with the level of meeting notice detail required by this language. The issue is compounded by the interpretation of the Attorney General’s Division of Open Government (“Division”) that this language requires meeting notices to contain a level of detail “sufficiently specific to reasonably inform the public of the issues to be discussed….” 617.556.0007 | 1.800.548.3522 | www.k-plaw.com | ©2019 KP Law, P.C. In this case, the Suffolk Superior Court disagreed with a Division determination that the Town's Board of Selectmen ("Board") violated the OML with respect to the sufficiency of its meeting notices. Here, due to the sheer number of annual appointments to be made by the Board, and the limited space available on the Town Hall bulletin board for posting meeting notices, the meeting notice referenced "Annual Appointments" and indicated that a listing of same was on file with the Town Clerk and the Board’s Clerk. The Board followed this procedure for two consecutive meetings, after being told by a Division representative that the practice was acceptable. Although the meeting notices were identical, the Division found that one notice was “sufficiently” detailed because the full list of appointments for that meeting did not fit on the bulletin board, being four pages in length. In contrast, because the list of appointments for the second meeting was only one page in length, the Division concluded that a meeting notice containing that list could have fit on the bulletin board and therefore that the notice of the second meeting was not sufficiently detailed, in violation of the OML. The Town argued, and the Court agreed, that the Division acted arbitrarily by applying subjective criteria, such as available bulletin board space, to determine whether a meeting notice was sufficiently detailed. The court further held that the Division does not have the authority to expand the meaning of the OML by requiring more detail in meeting notices than is required by G.L. c.30A, §20(b). This is an important decision insofar as it establishes limits on the Division’s authority and protects municipalities attempting to comply with the law in good faith. Attorney Gregg Corbo of KP Law successfully prosecuted this case on behalf of the Town, and the Division has not appealed the decision. Boelter v. Board of Selectmen of Wayland, 479 Mass. 233 (2018) – Employee Evaluation Process By Public Bodies In another case with practical implications, the Supreme Judicial Court held that the Board of Selectmen (“Board”) violated the OML when written evaluations prepared by board members were shared with a quorum in advance of a meeting. Under the OML, the term “deliberation” “shall not include the distribution of a meeting agenda, scheduling information…or the distribution of reports or documents that may be discussed at a meeting, provided that no opinion of a member is expressed.” G.L. c.30A, §18 [emphasis added]. While the Court recognized that public bodies are permitted to compile aggregate employee evaluations, it nonetheless concluded that the circulation of such evaluations between a quorum of members, in advance of a public meeting and outside of the public view, violated the OML. The critical factor in the case was that the employee evaluations at issue necessarily contained “opinions” of the Board members as the employee’s performance, thus, to the Court, distinguishing these materials from other documents that are routinely circulated to board members in advance of public meetings. While the Court indicated that the distribution of materials in this case could be done in compliance with the OML if such distribution had also been “made available to the public” at the same time the documents were circulated to the Board members, such a resolution seems impracticable. Of note, subsequent to this decision, the Division updated its guidance on performance evaluations to track the Boelter decision. This will continue to be a challenging area of the law for municipal boards acting as employers. 617.556.0007 | 1.800.548.3522 | www.k-plaw.com | ©2019 KP Law, P.C. Perez v. Gross, U.S. District Court, Mass. (December 10, 2018) – Application to Government Officials of Massachusetts Wiretap Statute, G.L. c.272, §99 This federal case addressed First Amendment principles implicated by the so-called Massachusetts Wiretap Statue, G.L. c.272, §99, with respect to audio recordings of government officials. The Wiretap Statute generally prohibits the secret recording of oral communications (aside from publicly broadcast communications) without the consent of all parties to the communication. In previous court decisions, the First Circuit Court of Appeals held that citizens could openly record law enforcement officers performing their duties in public spaces, without violating the Wiretap Statute. In this case, the District Court concluded that the Wiretap Statute unconstitutionally prohibits secret recording of government officials, including law enforcement officers, performing their official duties in public spaces. While imposition of certain reasonable time, place and manner restrictions may still be appropriate, such as if the recording interferes with public safety, the District Court declined to make a determination as to what ultimately constitutes a “public space” or a “government official” for purposes of allowing secret recordings. In light of the decision, public officials, particularly in law enforcement, should be aware of the existence of a First Amendment right to audio record public officials performing public functions in public spaces. This decision did not concern government officials’ actions during a meeting governed under the OML, and thus did not address the requirement under G.L. c.30A, §20(f) that any person who wishes to audio or video record an open meeting must first inform the chair of the multiple member body, and the chair must announce that the meeting is being recorded. The current version of G.L. c.30A, §20(f) was adopted to address and reconcile certain inconsistencies between the older version of the Open Meeting Law and the Wiretap Statute. A crucial distinction between G.L. c.272, §99 and G.L. c.30A §20(f) is that the former criminalizes secret recordings, while the later simply provides procedural requirements for the conduct of public meetings. Nonetheless, given the relatively broad language of the District Court decision, it is theoretically possible that G.L. c.30A, §20(f) could be challenged as unconstitutional. The District Court decision is still subject to appeal, and we will keep you apprised of any developments. Should you have any questions concerning the Open Meeting Law, please contact Attorneys Janelle M. Austin (jaustin@k-plaw.com) or Michele E. Randazzo (mrandazzo@k-plaw.com), or any other member of the firm’s Government Information and Access Group at 617.556.0007. Disclaimer: This information is provided as a service by KP Law, P.C. This information is general in nature and does not, and is not intended to, constitute legal advice. Neither the provision nor receipt of this information creates an attorney-client relationship with KP Law, P.C. Whether to take any action based upon the information contained herein should be determined only after consultation with legal counsel. 617.556.0007 | 1.800.548.3522 | www.k-plaw.com | ©2019 KP Law, P.C. The Open Meeting Law and Social Media – Potential Pitfalls The Open Meeting Law (OML) prohibits a quorum of a public body from deliberating outside of a properly posted public meeting about matters within the jurisdiction of that body. When the OML was revised in 2010, “deliberation” was expressly defined to include exchanges by email. There is ample precedent from the Attorney General’s Division of Open Government (“Division”) that a violation of the OML occurs when a quorum emails about official business. It is less clear, however, how the OML applies to social media, such as Facebook, Twitter or Instagram, where communication is typically less direct. In fact, there are an ever increasing number of social media formats that leave a record of written posts or other communications that could lead to OML violations. While there is no clear answer, members of multiple member bodies should approach the issue proactively, exercising caution to avoid social media exchanges that could result in a written exchange between a quorums of members in violation of the OML. The division found a violation of the OML when one board member sent an email to the other members expressing her opinion on a matter within the jurisdiction of that board, even though none of the other members responded. See OML 2012-93. In that case, the Division concluded that a single member had violated the OML by sharing her opinion with a quorum outside of a posted meeting. Trying to anticipate how this ruling would apply to exchanges on social media, consider the result if a board member posts a comment on her Facebook page concerning a pending application for a permit, and a majority of her fellow board members are Facebook “friends”. Is the fact that a quorum may have read the post enough to violate the OML? In the only formal determination concerning a Facebook post, the Division found no violation when a board of selectmen chairman posted an opinion on a matter before the board on his Facebook page, but the Division also specifically noted that the other Selectmen did not follow the Chairman on Facebook. See OML 2013-27. This holding suggests that the Division could have found a violation if the other board members had access to each other’s Facebook pages, and that such a finding would have been even more likely if the other members posted comments in response to the original post. Community social media platforms are often a constructive means for residents to exchange opinions and shared ideas, and elected or appointed municipal board members may wish to similarly share their expertise, insight, and opinions. The Division recognizes that certain action taken by members of a multiple-member body may be “political” in nature, and has concluded that discussions between members of a public body may not violate the OML if they relate to a political statement. See OML 2012-10. However, the Division cautions that members of a board or committee must be “conscious, when formulating such statements, of the need to limit discussion to the political statement and avoid discussing matters that are within the public body’s jurisdiction”. The repercussions for making a mistake in this regard are potentially severe, ranging from an order that all posts be made part of a meeting record, to invalidating a vote or decision made by a board, or even imposing a fine for repeat offenses. 617.556.0007 | 1.800.548.3522 | www.k-plaw.com | ©2019 KP Law, P.C. While the Division has not yet issued much formal specific guidance on this topic, here are some issues members of a public body should consider when using social media: 1. The safest course is to avoid “friending” or “following” members of your board or committee, and further to refrain from commenting on “friends of friends” posts on other members’ pages or sites as to any matter within the jurisdiction of your board or committee. 2. If you do choose to “friend” or “Follow” other members, avoid posting with respect to applications, hearings or other specific matters that are pending or likely to be pending before your board. Note that in addition to avoiding OML issues, this proactive approach will also protect the public body from a charge that the body has violated the due process rights of the applicant. 3. If you do choose to post concerning municipal matters, such posts should be made in a broad fashion so as to address the remarks to the public, i.e., all followers or “friends”, rather than targeting just fellow board members. We anticipate that the Division would look to whether the member’s comments were intended to reach the quorum, similar to an email addressed to a quorum, as opposed to reaching everyone with access to the social media site. In other words, while simply posting a comment may not violate the OML, even if a quorum of board members are “friends”, calling them out in the post, and/or sending a direct message, would be likely to do so. 4. If you see a post from a fellow board member on a specific pending matter, do not write a comment or reply in any way. If needed, you may request that the chair include the topic on the notice for a properly posted meeting. 5. Comments made to a closed listserv format, where the member is presumable aware that their fellow board members with “receive” the comments, if challenged, would likely pose a significant risk of a violation for improper deliberation. In summary, members of boards and committees do not cede all of their first amendment rights when they take office. However, great caution should be exercised when using any social media platform to discuss matters within a board member’s official jurisdiction, particularly if the board member is “connected” with a quorum of members of their multiple-member body. Such “discussions” occurring in the context of a public hearing or other quasi-judicial process may also create a very real risk of due process claims. Finally, if social media statements are made by elected or appointed officials concerning municipal matters, ensure that it is clear such statements are made in the political context, such as using a “campaign” page or the like. Please contact attorney Brian W. Riley (briley@k-plaw.com) or any member of the firm’s Government Access and Information Group at 617.556.0007 with further questions on the Open Meeting Law and social media. Disclaimer: This information is provided as a service by KP Law, P.C. This information is general in nature and does not, and is not intended to, constitute legal advice. Neither the provision nor receipt of this information creates an attorney-client relationship with KP Law, P.C. Whether to take any action based upon the information contained herein should be determined only after consultation with legal counsel. Town of Brewster September 14, 2021 Lauren F. Goldberg, Esq. This information is provided as a service byKP Law, P.C. This information is general innature and does not, and is not intended to,constitute legal advice. Neither the provisionnor receipt of this information creates anattorney-client relationship between thepresenter and the recipient. You are advisednot to take, or to refrain from taking, anyaction based on this information withoutconsulting legal counsel about the specificissue(s). Disclaimer •Open meeting, public records and conflict of interest laws exist in virtually every state •Intended to eliminate secrecy and personal interest in development of public policy •Open Meeting Law (“OML”) generally requires public bodies to meet in open session •Public Records Law (“PRL”) generally requires all records to be maintained and disclosed upon request •Conflict of Interest Law (“COI”) generally prohibits a municipal employee from participating in a matter in which they have a financial interest and from holding more than one paid position with the municipality Open Meeting Law General Laws c.30A, §§18-25 What is a meeting? •Meeting includes a deliberation amongst a quorum to discuss matters within jurisdiction of body •The term “meeting” does not include an on-site inspection of a project or a program,provided that members do not deliberate (AG interprets this requirement very strictly) Post follow-up meeting of board or committee if members anticipate that they might want to discuss matters amongst themselves or respond to matters raised •The term “meeting” does not include attendance by a quorum at a public or private gathering or social event, provided that members do not deliberate Best practice-avoid creating the appearance that a public body is discussing public business Open Meeting Law Basics Provided no opinions of the governmental body are expressed, attendance or distribution amongst a quorum will not constitute a “meeting” or a “deliberation” for OML purposes: 1. Distribution to the public body by a member of: •A meeting agenda; •Scheduling or procedural information; •Reports or documents that may be discussed at an upcoming meeting, so long as the material does not express the ideas, feelings, beliefs, opinions of a member of the body. 2. Attendance at an on-site inspection 3. Attendance at a public or private gathering or social event 4. Attendance at a posted meeting of another public body, communicating only by open participation on matters there under discussion and not privately among themselves Exceptions to Definition of Meetings Open Meeting Law – Meeting Notice: What, When, Where What –Notice must include date, time and place: •“Listing of TOPICS that the chair reasonably anticipates will be discussed at the meeting."G.L. c.30A, § 20(b) (emphasis supplied) •The list of topics shall have "sufficient specificity to reasonably advise the public of the issues to be discussed at the meeting." 940 CMR 29.03(l)(b) •Interpreted by the AG to mandate that the notice include a listing of the particular ITEMS to be discussed, rather than general topics of discussion; must be very detailed •Regularly occurring items need more detail than simply using generic placeholders (i.e. old or new business) Notice Posting – What When – At least 48 weekday hours in advance of meeting, excluding Saturdays, Sundays and legal holidays unless an “emergency”. Where – Regulations allow municipal website as official method of notice posting; must be approved by Select Board. •If website goes down for more than 6 hours, then meeting notices are “no good”, and meetings must be reposted. Notice Posting – When Do not use acronyms – write out terms that may not be familiar to the general public (i.e. replacing "HUD CPD HOME" with "Department of Housing and Urban Development Community Planning and Development HOME Investment Partnerships Program") Include reference to planned executive sessions – cite to specific statutory reference(s), quote text of executive session purpose; provide additional detail that would not negatively impact body; more content may be necessary! Avoid shorthand references (i.e., “personnel”, “contract negotiations,” “real estate,” etc.) If executive session is planned and would be only matter on agenda,notice must also indicate open session as an agenda item Notice – Practical Considerations Matters not reasonably anticipated by chair MUST be added to agenda after posting deadline to extent feasible •Updated agenda must show time and date of update, as well as change to agenda Matters not reasonably anticipated by Chair MAY be discussed and acted upon •AG recommends that unless matter requires immediate action, should be put off to later meeting and included in posting Notice – Practical Considerations Open Meeting Law – Meeting Management: Public Participation, Practical Considerations Executive Session Management Practical considerations •NOT required by law (could be required by charter or special act) See OML 2015-12 •Should it be allowed at beginning or end of meeting? •Controls: Protect individual rights Consider adding issue as agenda item at future meeting Don’t try to resolve issues at time; Avoid debate Limit time per person and total time Treat people the same way regardless of their message Meeting Management – Public Participation Resignations •Elected officials and other “officers” must file resignation with clerk •Nothing in state law that says resignation must be filed by person resigning •Cannot put on and off the “cloak of authority” – resignation is irrevocable once filed •For others, resignation typically must be accepted by appointing authority Question •Is resignation a public record? Boards and Committees Questions •Must all appointees to a board be registered be registered voters? •Must all appointees to a board be residents? •Must all appointees to a board be United States citizens? •What are the implications if an appointed board member moves out of the municipality but does not notify the municipality? •What if the member is elected? Boards and Committees Meeting Management Board Member Sanctions •Nothing formal exists •Some bylaws/ordinances/charters provide for removal of appointed for failure to attend •Non-reappointment only real tool otherwise •Vote of board •Delay of votes •Typically handled best by informal methods Quantum •Majority of those present and voting unless statute establishes otherwise •Example: For special permit, 4/5 Rights of Chair under OML •No public participation required by statute •Charter or special act may provide for public participation Question Is there a difference between a meeting and a public hearing? Voting Parliamentary Procedure •Roberts Rules not required, but frequently used •Reconsideration •Motions, seconds, votes •Roll call? •Formalities? •No Secret Ballots Voting Recording by Individuals •Must inform the Chair •Chair must make required announcement •Chair may reasonably regulate recordings (i.e., placement and operation of equipment) Remote Meetings •Consider whether “glitches” in remote access meetings require that the meeting terminate •Chair must make a public statement regarding audio or video recording if an attendee or a staff member intends to record the meeting (wiretap statute) Meeting Management – Practical Considerations •Just as with the meeting notice, a vote to enter executive session must also include all information possible without compromising the purpose of the session •Name/title of non-union personnel or union must be identified in the notice and vote if bargaining negotiations will be conducted •Case names to be discussed under litigation strategy must be listed, unless doing so would compromise the Town’s litigating position •Property address must be included, unless doing so would compromise the Town’s bargaining position •Any necessary declarations by the Chair must be made Meeting Management – Executive Session Open Meeting Law – Executive Session All meetings of a public body must be open, unless the topic falls within one of ten executive session purposes, such as, for example: •Purpose 1: Discuss the reputation, character, physical condition or mental health, rather than professional competence, of an individual, or to discuss the discipline or dismissal of, or complaints or charges brought against, a public officer, employee, or staff member. Notice to individual required •Purpose 2: Conduct strategy sessions in preparation for negotiations with nonunion personnel or to conduct collective bargaining sessions or contract negotiations with nonunion personnel •Purpose 3: 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 public body and the chair so declares •Purpose 6: Consider the purchase, exchange, lease, or value of real property if the chair declares that an open meeting may have a detrimental effect on the negotiating position of the public body Executive Session – Purpose •Notice must list open session if all that will be undertaken is an executive session; •First convene in open session; •State purpose(s) of executive session “stating all subjects that may be revealed without compromising the purpose for which the executive session was called”; •Take and record roll-call to go into executive session; •Announce if open session will reconvene afterward; •Maintain exhibits and documents used in reasonable proximity to minutes; •Only discuss matters cited on meeting notice; if unanticipated matter arises, follow initial protocol to enter session; and •Take all votes in executive session by roll-call. Executive Session Open Meeting Law – Meeting Minutes: Content, Approval •Date, time, place of meeting, and members present or absent; •Detailed summary of discussion of each topic sufficient to allow a person not present at the meeting to understand the substance of what occurred at that meeting; •Decisions made, actions taken, and votes recorded (no secret ballots permitted); and •List of documents and other exhibits used by the body at the meeting, which will be “part of record” but not of minutes; 1.Document is physically present at meeting; 2.Document is verbally identified; and 3.Content of document is discussed by members (OML 2012-42). Meeting Minutes - Content Open session minutes created and approved in timely manner •New-ish regulations indicate that approval must occur generally within the next 3 meetings or within 30 days, whichever is later •Minutes of meetings, including drafts, are public records at moment of creation, regardless of whether approved Executive Session Minutes •May be withheld until purpose of exemption has been met, unless otherwise protected under the Public Records Law •Review periodically •Can approve in executive session, either under purpose for which session was originally held, or, if more than one purpose, under Exemption 7, referencing law that allows the same Meeting Minutes - Approval Questions: •Are Town Clerks responsible for posting minutes to bulletin board, website, other? •Where should minutes be filed/posted? •Are Clerks required to have copies of minutes in paper format? •What about electronic format? •If a Board or Committee has a dedicated administrative assistant, may that individual keep the minutes in their office as opposed to the Clerk’s office? Meeting Minutes – Questions Open Meeting Law – Email & Social Media is now explicitly addressed in the OML A quorum may not use e-mail to share their ideas, feelings, opinions, beliefs, whether serially or in a single e-mail, on board business, and may not use a non-member to avoid law Practical approaches to avoid violations: Beware of “reply to all” on emails Limit use of e-mail to scheduling purposes, and try to avoid using e-mail to undertake Town business Assume that e-mail may be forwarded to unintended recipients, and therefore limit content to business matters; be prepared to read e-mail in local newspaper or blog Don’t ask for or express opinions, ideas, feelings, beliefs or impressions in an e-mail to other members Deliberation–Email Social media also subject to the OML Alternative electronic communications have become more prevalent, including blogging, instant messaging, texting, social networking such as Facebook, Snapchat, and Twitter Practical approaches to avoid violations: Do not direct comments to other members of body If matter directly involves issue pending before body, consider not engaging Be thoughtful about manner in which comments are made Consider using separate accounts for campaign purposes and following election Remember that applicants have due process rights; if the board member is involved in a matter adjudicating the rights of others, only discuss matter at the hearing Deliberation–Social Media Personal Use Of Social Media –Practical Steps •If public official or employee will use social media, make sure to differentiate between any “official site”, and a “private” site, such as a campaign site •If you post on social media in “personal” capacity, make sure that the post so indicates •Use municipal e-mail address rather than a private e-mail address for “official business” •Use social media in “official capacity” for public announcements, emergency alerts, event reminders •DO NOT debate or discuss matters with members of the public if such matters are or could be pending before the Board Bottom Line: •Remember that anything you create as a public official relating to your public business is likely to be subject to the Public Records Law •Never press “send” or “enter” without thinking about whether and why you should or should not send the same •Be prepared to read your posts on a blog or newspaper site E-mail & Social Media Open Meeting Law - Complaints •Complainant must file written complaint with the public body within 30 days of the alleged violation and on form prepared by the AG; •Public body must forward complaint to AG within 14 business days of receipt and inform AG of any remedial action taken; and •Complainant may file a complaint with AG after 30 days from the date complaint was filed with public body. OML - Complaints Attorney General regulations require public body to consider complaint at properly posted meeting, which should include the following: •Matter must appear on meeting notice with specificity; •May meet in executive session in accordance with Attorney General precedent; •Acknowledge receipt of complaint; •Deliberate concerning allegations and possible resolution; •Vote to resolve complaint; and •If appropriate, authorize response to be prepared and sent to Attorney General and Complainant. OML - Complaints Cure •“Public deliberation (at a properly posted open meeting) may effectively cure the private discussion which occurred over email because it enabled the public to see the discussion that went into the creation of the policy. To cure a violation of the Open Meeting Law, a public body must make an independent deliberative action, and not merely a ceremonial acceptance or perfunctory ratification of a secret decision.” See OML 2011- 14 AG Resolution •Broad authority to resolve, including order to “undo” action taken by body in violation of law •Often includes that future violation will be deemed intentional OML - Complaints 37 Meeting Notice Requirements •The Act extended relief first provided by the Governor’s Open Meeting Law Executive Order, allowing public bodies to meet remotely provided, generally, that the public has adequate, alternative means of access, including: •telephone, internet, or satellite enabled audio or video conferencing or •any other technology that enables public to follow proceedings in real time. •Notice of the meeting must include clear instructions for accessing meeting remotely, including a link or call in number, or, to avoid so-called “Zoom bombing”, the notice may require the public to call in to obtain access information so long as the notice includes clear contact information and the public can obtain access for duration of the meeting (cannot be required to register in advance; someone monitoring call). Remote Meetings -Chapter 20 of the Acts of 2021 38 •Remote meetings can be totally remote or partially remote; a quorum need not be physically present. •To open a remote meeting, the chair must either introduce the board members, or have the board members introduce themselves. •If a board member is participating remotely and has a camera, the camera should be left on during the meeting. •All votes taken will require a roll call (just like what is required in executive session). •As with meetings conducted fully in person, public participation is not required at remote meetings of a public body. Remote Meetings, Cont. If the public body allows public participation, or if the meeting is a public hearing, members of the public must be able to communicate with the public body and be heard by other members of the public. The Attorney General takes the position that if any members of the public are permitted to attend in person, there must be enough room for all members of the public to attend in person. The Attorney General does not allow public bodies to allow only some members of the public to attend in person. When meetings are conducted virtually, the meeting notice must provide instructions as to how the public can view and participate in the meeting. At the start of the meeting, the chair must announce the name of the member or members who are participating remotely; such information must also be recorded in the meeting minutes. All votes taken in a virtual meeting must be by roll-call vote, even if the vote is unanimous. Remote Meetings – Public Hearings All other provisions of the Open Meeting Law apply, meaning that notice must be posted at least forty-eight (48) hours prior to the meeting, the notice must contain a detailed list of topics the chair anticipates will be discussed, executive session must be identified and for a permissible purpose, and minutes must be kept. Should the public body encounter technical problems while meeting remotely, the person chairing the meeting may decide how to address the technical difficulties, but is encouraged wherever possible to suspend discussion while reasonable efforts are made to correct any problem that interferes with a remote participant's ability to hear or be heard clearly. If technical difficulties result in a remote participant being disconnected from the meeting, that fact and the time at which the disconnection occurred must be noted in the meeting minutes; if the matter is a public hearing, the hearing should not continue until the connection is restored; if not, the hearing should be continued to a time, date and place more than 48 hours following the time and date of the posting. Remote Meetings – Public Hearings, cont. Key Takeaways •No meetings of a quorum, whether simultaneously or successive, other than at posted meeting held in accordance with law. •All meetings posted no less than 48 weekday hours prior to date and time of meeting. •Meeting notice must contain significant detail concerning the matters to be discussed such that a reasonable person would be able to anticipate the discussion. •Meeting minutes must contain the same level of detail, and be created and approved no later than 3 meetings following, or 1 month, whichever is later. •Chair presides at meetings and decides questions of order; public does not have a right to participate in meetings. •If members share ideas, feelings, opinions and belief amongst a quorum, will likely violate the law Open Meeting Law General Laws c.268A Conflict of Interest Law Broad application to all “Municipal Employees” A person performing services for or holding an office, position, a municipal agency, whether by election, appointment, contract of hire employment or membership in or engagement, whether serving with or without compensation, on a full, regular, part-time, intermittent, or consultant basis, but . . . Chapter 268A . . . excluding : (1) elected members of town meeting, and (2) members of a charter commission established under Article LXXXIX of the Amendments to the Constitution. “Municipal Employee” - Exemptions •Special municipal employee - designated by BOS; unpaid or part-time up to 800 hours per year •Law applies to special municipal employee less strictly in two ways: •Easier to hold more than one position with the municipality •Can communicate with municipality on behalf of another, other than with the individual’s own board Special Municipal Employee •Section 17: A municipal employee may not (a) receive compensation from anyone other than the Town, or (b) act as “agent or attorney” for anyone other than the municipality, with regard to any particular matter in which the municipality is a party or has a “direct and substantial” interest. •Avoids appearance of, or actual, divided allegiance. Note: Special municipal employees are prohibited only from acting as agent before their own board or office. Receiving Money from or Acting as Agent for Private Party Matters Involving Financial Interest of Member •Section 19: Whether appointed or elected, employee may not participate in official capacity in any particular matter in which employee, employee’s “immediate family” or private business or employer has a financial interest - regardless of the size of financial interest. •Possible exemption, for appointed officials only: Disclose financial interest and seek written approval from appointing authority – approval is not automatic. Contracts or Second Positions •Section 20: A municipal employee may not have financial interest in a contract with the municipality (“contract” includes a second office, if paid), unless qualifies for an exemption. •Many exemptions, but all fact specific – special municipal employees, part-time or call firefighter/public safety officer, housing subsidy programs, etc. •Some exemptions in other statutes, i.e., a town clerk can hold a second position (see G.L. c.41, §19I, any clerk who also serves in any other position for such municipality may also receive additional pay for such other position). Contracts or Second Positions •Section §20(b): “regular” employee exemption elements: contract with different department made after public notice [newspaper] or public bidding written disclosure filed with Clerk if for “personal services” [second municipal position], must be outside normal hours of primary position, no more than 500 hours/yr., head of agency files certification, and BOS votes to approve Contracts or Second Positions •New[ish]§20 exemptions created by regulation: 940 CMR 6.02 – Municipal employee/paid official may take on new uncompensated position without requiring a §20 exemption; for this purpose, “uncompensated” means a position for which no salary or stipend is offered; i.e., cannot accept position and decline payment. Avoiding Appearances of a Conflict of Interest Section 23: – Several provisions go beyond the prohibitions of the above sections. Two primary paragraphs to remember: G.L. c.268A, §23(b)(2) – may not use or attempt to use one’s office to obtain, for employee or others, any unwarranted privilege of substantial value ($50) “not properly available to similarly situated individuals.” Avoiding Appearances of a Conflict of Interest G.L. c.268A, §23(b)(3) – Municipal employee may not “act in a manner which would cause a reasonable person, having knowledge of the relevant circumstances,” to conclude that employee acting with bias, favoritism or otherwise for personal reasons. Only way to avoid this violation is to file written disclosure of facts before acting Recuse if uncomfortable…that’s a “red flag” Public Records Law Definition: All books, papers, maps, photographs, recorded tapes, financial statements, statistical tabulations, or other documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee… Must respond within 10 business days by providing the requested records or by notifying the requester in writing of the reason why the records are not being provided as requested, and stating with specificity application of pertinent exemptions. Public Records •Records created by elected and appointed boards and committees aresubject to the PRL •Same rules apply – records either need to be printed and brought to municipal offices, or sent to/copied to a municipal employee at municipal offices •Records retention schedule governs how long record must be maintained Public Records •Board members records are subject to records maintenance requirements and records requests •When a request is made, board member will have to review their private e-mail accounts to locate responsive records unless stored on Town computer system •If they claim to have deleted or otherwise not have records, Supervisor of Public Records could, at least in theory, require forensic examination of computer •“Delete” doesn’t necessarily mean “deleted” Public Records Use Town e-mail account for Town business; Deliver any records created outside of Town Hall or off of Town servers to Town Hall; post everything you can on website; Ensure that when you hit “send” on an e-mail, you are comfortable with that e-mail being forwarded, printed, posted and tweeted; Use “formal tone” when conducting Town business in writing (and otherwise); Avoid asking for or providing personal information in Town e- mails, including unpublished telephone numbers, medical information, social security numbers, financial account numbers, and the like; and Consider whether formal record is required (as one Town Manager put it, “Phones still work”). Creating Records – Best Practices •Questions raised under PRL about use of social media; how and what needs to be maintained continues to be a challenge •Constituent inquiries, particularly for elected officials; campaign work or municipal work •Mixed content – personal and municipal •Use of municipal e-mail addresses •Other forms of technology Public Records – Practical Issues KP Law Website and Public Records Resources: http://www.k-plaw.com and http://www.k- plaw.com/resources/public-records-law-resources/ Attorney General’s Open Meeting Law Website: https://www.mass.gov/the-open-meeting-law State Ethics Commission Website https://www.mass.gov/orgs/state-ethics-commission Secretary of the Commonwealth Public Records Division: http://www.sec.state.ma.us/pre/preidx.htm Secretary of the Commonwealth Archives Division: http://www.sec.state.ma.us/arc/arcrmu/rmuidx.htm Resources Lauren F. Goldberg, Esq. KP Law, P.C. 101 Arch Street, 12th Floor Boston, MA 02110 (617) 556-0007 www.k-plaw.com Contact Information