Insider's Guide to the Open Meeting Law

The state's Open Meeting Law is an archaic anachronism in today's electronic age.

The purpose of the law is clear: to make sure that local government does things in the open. Discussions and decisions must be debated and made in open meetings. These meetings must be posted in advance so the public can attend.

This is a very important law. In the past, many town governments found it more comfortable to do things outside of the public eye. For people who were not part of the ruling clique, these decisions were mystifying and there was little or no way to fight them. (If every member showed up to a meeting with their minds already made up, what's the point of listening to the public or having a debate?)

The law itself was written probably over 20 or 30 years ago, and it doesn't include in its language such things as telephone conversations or emails. But the Attorney General's office and county District Attorneys have ruled that the law applies equally to these more modern forms of communication.

What does the law say? It is long, so we won't reprint it, but you can review it at http://www.mass.gov/legis/laws/mgl/39-23b.htm. You can also read various opinions online, including the often-cited opinion of former Middlesex DA Martha Coakley's office as a PDF at http://www.middlesexda.com/.

But the relevant sections to local town government are as follows:

* 1. Meetings must be posted in advance.
* 2. Minutes must be kept and made available to the public
* 3. A quorum of the membership of a government body cannot communicate about a matter that will come before them in their official capacity except during an open meeting.

Last year (2006), some members of the Board of Selectmen were concerned that certain individuals in town were using email inappropriately. This sparked a discussion of the Open Meeting Laws and the League of Women Voters held a forum on the topic, which was very enlightening.

The Assistant DA told the audience that members of boards were advised to use outside-meeting communications only for mundane topics (agenda items, minutes, etc.) They also advised that an individual member of a board should not opine to more than a quorum of fellow board members outside of a meeting. (A quorum can be reached at one time, or serially. For example, a member couldn't speak with another member, then another, then another, thus talking to more than a quorum.)

Many members of our town like to opine. Evidently, it is OK to opine in an op/ed in the paper, or on a website, but not in an email. I guess the op/ed and website are more available to the public.

The DA also discouraged emails in general because sometimes these communications can get forwarded to a quorum of a board unintentionally. That being said, there is no prohibition on a board member from writing to other boards on which they do not serve. Some have suggested adding a warning not to forward emails of this kind to anyone else as a precaution against an OML violation.

Subcommittees of boards or committees must also follow the open meeting law.

As far as Executive Sessions go, the law spells out very specific circumstances when a government body can hold a secret deliberation. Minutes of these meetings must also be kept and released when the subject matter is no longer sensitive. Boards often go into executive session to discuss labor negotiations, private personnel issues, and things like purchases and lawsuits.

There has been talk on the state level of revising the Open Meeting Law. Some proposals include individual penalties for violations and updating the law to include electronic communications. We feel that the law should be broadened to embrace the new technologies and to allow more communication...while ensuring easy and ready public access to those communications.