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Massachusetts Board of Library Commissioners Resource Guide Collection

Trustees: Open Meeting Law and Social Distancing

Information, resources, and advice for library trustees in Massachusetts.

Update on the Open Meeting Law and COVID-19

On March 12, 2020, Governor Baker issued an Executive Order modifying certain requirements of the Open Meeting Law, to enable public bodies to carry out their responsibilities while adhering to public health recommendations regarding social distancing.

The Executive Order relieves public bodies from the requirement in the Open Meeting Law that meetings be conducted in a public place that is open and physically accessible to the public, provided that the public body makes provision to ensure public access to the deliberations of the public body through adequate, alternative means. “Adequate, alternative means” may include, without limitation, providing public access through telephone, internet, or satellite enabled audio or video conferencing or any other technology that enables the public to clearly follow the proceedings of the public body in real time. A municipal public body that for reasons of economic hardship and despite best efforts is unable to provide alternative means of public access in real time may instead post on its municipal website a full and complete transcript, recording, or other comprehensive record of the proceedings as soon as practicable afterwards.

In addition, all members of a public body may participate in a meeting remotely; the Open Meeting Law’s requirement that a quorum of the body and the chair be physically present at the meeting location is suspended.

All other provisions of the Open Meeting Law, such as the requirements regarding posting notice of meetings and creating and maintaining accurate meeting minutes, as well as the limited, enumerated purposes for holding an executive session, remain in effect.

Executive Order: https://www.mass.gov/doc/order-suspending-certain-provision-of-open-meeting-law/download

Guidance Spotlight: Temporary Modifications to the Open Meeting Law's Requirements
from This Month in the Division of Open Government March 2020 newsletter
https://mailchi.mp/8c9acff722b0/this-month-in-the-division-of-open-government-1523322?e=ec5372a3be
 
On March 12, 2020, the Governor issued an Executive Order Suspending Certain Provisions of the Open Meeting Law.  The Executive Order makes two primary changes to the Open Meeting Law.  First, the Order relieves public bodies from the requirement in the Open Meeting Law that meetings be conducted in a public place that is open and physically accessible to the public, provided that the public body makes provision to ensure public access to the deliberations of the public body through adequate, alternative means. Second, all members of a public body may participate in a meeting remotely; the requirement that a quorum of a public body be physically present at the meeting location is suspended.
 
The Division of Open Government reminds public bodies that all other provisions of the the Open Meeting Law and regulations remain in effect.  For example, notice of all meetings of public bodies must be posted at least 48 hours in advance of the meeting, not including Saturdays, Sundays, and legal holidays.  In lieu of a meeting "location," the meeting notice must included specific information on how the public may access a meeting that is being held remotely.  In addition, the standards for holding an emergency meeting, for which notice of a meeting may be posted less than 48 hours in advance, have not changed.  An "emergency" is defined in the Open Meeting Law as “a sudden, generally unexpected occurrence or set of circumstances demanding immediate action.” The existence of a declared state of emergency at either the state or local level does not automatically entitle public bodies to hold "emergency" meetings.  A public body seeking to hold an emergency meeting must be able to demonstrate not only the existence of a sudden, generally unexpected occurrence or set of circumstances, but also that the specific matters to be discussed could not wait long enough to post notice 48 hours in advance.  
 
With regard to remote participation by public body members, the Executive Order expressly authorizes all members of a public body to participate in a meeting remotely; therefore, during the time that the Executive Order remains in effect, public bodies need not vote to "adopt" the practice of remote participation before they may begin holding meetings with all public body members participating remotely.  However, we remind public bodies that all other procedural requirements for remote participation remain in effect, as set forth in the Attorney General's regulations.  See 940 CMR 29.10.  For example, all members of a public body participating remotely must be clearly audible to each other; text or online chat is not an acceptable method of remote participation.  If a public body member is disconnected from the meeting, that fact and the time the disconnection occurred shall be noted in the meeting minutes.  At the beginning of the meeting, the public body chair must identify all public body members participating remotely, and all votes taken during the meeting must be conducted by roll call vote.  In addition, at the start of any executive session, each public body member must state that no other person is present and/or able to hear the discussion at the remote location, unless the public body has voted to approve that person's presence.
 
Now, more than ever, it is critical that public bodies carry out their business as transparently as possible, and in accordance with the Open Meeting Law.  As always, the Division of Open Government's legal staff is available to provide guidance on the requirements of the Open Meeting Law.  Please contact us at (617) 963-2540 or OpenMeeting@state.ma.us
 

 Guidance Spotlight: In-Person Meetings 
from This Month in the Division of Open Government June 2020 newsletter
https://us15.campaign-archive.com/?u=cb4a8f8dde889f526f9b8ca4e&id=ffba21e1b5

As public bodies consider resuming in-person meetings, we urge all public bodies to adhere to the Governor’s orders regulating gatherings and social distancing, and to keep abreast of any changes. We also offer the following guidance to ensure continued compliance with the Open Meeting Law
 
May public bodies continue to meet entirely remotely?
Yes.  The Governor’s March 12, 2020, Executive Order suspending certain requirements of the Open Meeting Law is still in effect. This executive order relieves public bodies from the Open Meeting Law’s requirement that meetings be conducted in a public place that is open and physically accessible to the public, provided that the public body provides adequate, alternative means of public access to the public body’s deliberations. “Adequate, alternative means” may include, without limitation, providing public access through telephone, internet, or satellite enabled audio or video conferencing or any other technology that enables the public to clearly follow the proceedings of the public body in real time. This executive order also authorizes all members of a public body to participate in a meeting remotely; the Open Meeting Law’s requirement that a quorum of the body and the chair be physically present at the meeting location is suspended.
 
All other provisions of the Open Meeting Law and regulations, such as the requirements regarding posting notice of meetings and creating and maintaining accurate meeting minutes, as well as the limited, enumerated purposes for holding an executive session, remain in effect.
 
The full text of the Governor’s Executive Order may be found here: https://www.mass.gov/doc/order-suspending-certain-provision-of-open-meeting-law/download


May public body members meet in person, while requiring the general public to follow the proceedings remotely?
Yes.  We have interpreted the Governor’s Executive Order to permit public bodies to meet in person, but provide remote access for the public. Section (1) of the executive order allowing public access through adequate, alternative means is independent from Section (2), which allows members of the public body to participate remotely. The public body may conduct its proceedings under the relief provided in section (1) or (2) or both.
 
May a public body hold a meeting entirely in-person, without providing the public with alternative remote access?
The Governor’s March 12 executive order relieves public bodies from the requirement to provide in-person access, provided they instead provide adequate, alternative public access through remote means.  It does not prohibit public bodies from holding in-person meetings, if they are able to do so in a way that complies with the Governor’s current orders regarding gathering size and physical distancing, yet also complies with the Open Meeting Law’s requirements regarding access to the public. 
 
The Open Meeting Law requires that meetings of public bodies be open to the public.  Access, if not provided by remote means in accordance with the Governor’s executive order, must include the opportunity to be physically present as well as to see and hear what is being discussed by the members of the public body.  In addition, for a meeting to be truly open to the public, we have determined that it must be held at a location that is compliant with the Americans with Disabilities Act.  The meeting space must be sufficiently large to accommodate anticipated crowds, and a public body must make reasonable efforts to accommodate unexpectedly large turnouts. 
 
A public body may not cap the number of attendees for purposes of complying with the Governor’s orders regarding gathering size and physical distancing. A small public body that typically attracts few members of the public to its meetings should not assume that it will be able to comply with gathering size restrictions, and should plan for larger audiences.  Public bodies may consider holding meetings outdoors, if they can ensure that attendees will be able to see and hear the discussions, such as through the use of adequate audio systems.  To ensure the greatest transparency and consistent with the goals of the Open Meeting Law, the Division of Open Government encourages public bodies to continue to offer the public alternative access to the meeting through remote means even if the public body members will assemble in person and the meeting will be physically accessible to the public.
 
Finally, we note that Town Meetings are governed by separate laws and are not subject to the requirements of the Open Meeting Law. A Town Meeting is the annual or semi-annual gathering of a town’s eligible voters to act as the legislative body for a Massachusetts town. For questions about Town Meeting, please contact the Attorney General’s Municipal Law Unit.

Additional Resources

It is recommended that boards of trustees and library directors check with their local legal counsel, town clerk or local government for guidance on any technology available to them and local guidelines for hosting virtual meetings. 

How to Make the Most of Zoom for Every Kind of Event
https://www.libraryjournal.com/?detailStory=how-to-make-the-most-of-zoom-for-every-kind-of-event

Videoconferencing Software: 
(This is not a complete list nor  endrsement of any product) ‚Äč

Massachusetts Municipal Association has a few other resources that may be helpful: 


 

Security Considerations: 

There have been reports of Zoom-bombing, or disruptions of meetings by outsiders with offensive content as well as concerns about user privacy for video conference participants.