Override Study Committee: Open Meeting Law problems

Open Meeting Law: Meetings and meeting records of government organizations in Massachusetts are currently regulated by the Open Meeting Law of 2009 and by corresponding state regulations. [G.L.C. 30A, Secs. 18-25, and 940 CMR 29] They require every organization to hold all meetings in public–except for ten strict exceptions–and to prepare, keep and distribute accurate records of meetings.

Since 2008, Article 3.21 of the Brookline Bylaws has also regulated meetings of government organizations in the community, It requires posting meeting notices and records on Brookline’s municipal Web site and provides for distribution of information by e-mail.

State law requires a notice for a meeting to be posted 48 hours before the start of the meeting, “excluding Saturdays, Sundays and legal holidays.” [G.L.C. 30A, Sec. 20(b)] A notice must include an agenda: the “list of topics shall have sufficient specificity to reasonably advise the public of the issues to be discussed.” [940 CMR 29.03(b)]

Notices on the Web site cannot satisfy state regulations now, because they fail to provide for “the date and time that the notice is posted [to] be conspicuously recorded thereon.” [940 CMR 29.03(1)(b)] Notices at the town clerk’s office cannot satisfy state law, because they are not “conspicuously visible to the public at all hours.” [G.L.C. 30A, Sec. 20(c)] Brookline organizations post notices both on paper at the town clerk’s office, where they are time-stamped, and on the Web site, where they are visible at all hours.

State law also requires a government organization to “create and maintain accurate minutes of all meetings.” [G.L.C. 30A, Sec. 22(a)] In addition to minutes, state law provides that meeting records include “documents and other exhibits.” [G.L.C. 30A, Sec. 22(d)] Those could be charts, diagrams, drawings, sketches, renderings, maps, photographs, computer files, film-slide or computerized presentations, and video or sound recordings. Brookline’s bylaw requires records of meetings to be posted on the municipal Web site. [Sec. 3.21.4]

The Massachusetts Open Meeting Law requires all members of government organizations participating in meetings to certify receipt of copies of the law, the regulations and instructions from the attorney general. [G.L.C. 30A, Sec. 20(g)] It will not be easy to claim ignorance of the law. Violations are punishable by fines of up to “$1,000 for each intentional violation.” [G.L.C. 30A, Sec. 23(d)(4)] The attorney general can “nullify in whole or in part any action taken” in violation of state law or regulations. [G.L.C. 30A, Sec. 23(d)(3)]

Patterns in Brookline: Brookline boards, committees, commissions and councils have varied patterns of compliance with the laws and of making information available to the public. A few–including the Board of Selectmen–distribute both on paper and via the Web timely and detailed meeting notices, punctual and thorough minutes, and supporting documents including contracts and reports.

Other organizations provide the public with spotty or unusable information. For example, some PDF files distributed by the Planning Department are internally scrambled. They can be viewed but not searched. If one tries to mark and copy a segment for reference, when pasted into a document one gets gibberish. This will not happen by accident; Planning Department staff must configure documents to cause the behaviors. The practices are not currently forbidden by law, but they violate the spirit of so-called “open government” to which Brookline says it is committed.

Actions of the Override Study Committee: Actions of the Override Study Committee of 2013 illustrate some of the serious and typical problems. That committee was appointed on August 13, 2013, and voted its recommendations on July 30, 2014. It has yet to distribute a final report. The organization is neither at the best nor at the worst of Brookline’s Open Meeting Law compliance.

During the year from August, 2013 through July, 2014, the Override Study Committee formed nine subcommittees. The combined groups held a total of 174 meetings. Problems began early. As of August 1, 2014, minutes for two of the 12 meetings held in October, 2013, still could not be found on the Brookline municipal Web site. One group was diligent with minutes, but the others were not. Three posted minutes for only about 20 percent of their meetings.

Organization Meetings Minutes Percent
Override Study Committee 37 21 57%
Benefits subcommittee 4 4 100%
Capital subcommittee 20 4 20%
Demographic subcommittee 32 17 53%
Fiscal subcommittee 9 2 22%
Municipal subcommittee 18 11 61%
Populations subcommittee 17 3 18%
Revenue subcommittee 12 8 67%
School program task force 19 11 58%
Schools subcommittee 6 5 83%
All combined 174 86 49%

Overall, minutes for less than half the 174 total meetings had been posted by August 1. Compliance with Open Meeting Law requirements for minutes collapsed after April. As of August 1, minutes had been posted for only one of the 43 meetings held in May, June and July. Without spending hundreds of hours at meetings, the public had almost no way to know what the committee had been doing.

Year Month Meetings Minutes Percent
2014 Jul 16 0 0%
2014 Jun 15 1 7%
2014 May 12 0 0%
2014 Apr 14 9 64%
2014 Mar 18 13 72%
2014 Feb 11 8 73%
2014 Jan 28 15 54%
2013 Dec 24 12 50%
2013 Nov 22 16 73%
2013 Oct 12 10 83%
2013 Sep 2 2 100%
2013 Aug 0 0 N/A
Total 174 86 49%

The committee and its subcommittees have entertained exhibits of statistical spreadsheets, budget models and computerized presentations at their meetings. So far, despite the requirements of state Open Meeting Law and Brookline law, those have not been posted on the municipal Web site. The committee is currently trying to use information withheld from the public. Since the information was openly conveyed in public sessions, it does not qualify for any of the exceptions in the state Open Meeting Law.

A vote by the full committee taken July 29 did not use a roll call, although one member was connected by telephone–contrary to state regulations, which require roll call votes when any member is participating remotely. [940 CMR 29.10(7)(c)] No exception is obtained by calling something a “straw vote,” as one committee member tried to do. The motion failed on a tie vote, treated as disposative. If a vote matters, then it’s a vote.

The seven full committee meetings this July were described to the public only through opaque and generic notices, saying the committee might do any or many of various things it is authorized to do. Without inside information, the public had no reasonable notice that on July 30–unlike the other days–the committee would vote a recommendation on a permanent, general tax override.

State open meeting regulations require, on a meeting notice, that “topics must be sufficiently specific to reasonably inform the public.” [940 CMR 29.03(b)] They were not, yet insiders clearly knew. A quorum of the School Committee was present at that July 30 meeting but not the others.

– Craig Bolon, Brookline, MA, August 7, 2014

Attorney General of Massachusetts, Open Meeting Law Guide, August 1, 2013

Office of the Attorney General, Open meetings, Massachusetts Regulations 940 CMR 29

Article 3.21, Readily accessible electronic meeting notices, agendas and records, Brookline Bylaws

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>