Open Meeting and Conflict of Interest – Buzzards Bay National Estuary Program

MA Open Meeting Law & Conflict of Interest Law

Background

The Buzzards Bay NEP works closely with elected and appointed officials in the Buzzards Bay watershed. Many of these officials are unpaid volunteers, with little government training. Some of these officials may have a basic understanding of the Massachusetts Open Meeting Law and Conflict of Interest Law, but may not appreciate their many nuances. We also receive inquiries by residents about alleged conflicts of interest or alleged violations of open meeting laws. We have set up this page as a resource to direct government officials and residents to the appropriate state agencies overseeing these laws, and to documents that provide guidance on these laws.

Open Meeting Law

The Massachusetts Open Meeting Law applies to all governmental “public bodies” at the state, county, and local levels What constitutes a “public body”? Public bodies are defined in Massachusetts General Law in Chapter30A Section18, but in simplest terms, boards and committees of any entity defined under state law (state, county, district, city, region, town, or district), must comply with the requirements. The law does not apply to meetings of agency and municipal staff, nor committees to advise public officials in decisions that they could make on their own. See the Attorney General’s website for more information.

Massachusetts open meeting law is more than just trying to stop a governmental board from secretly meeting in some dark smoke-filled room to decide a public matter. The Massachusetts Open Meeting Law and requires that meetings be open to the public, that notice of such meetings be publicly posted, and that accurate records of the meeting be kept and made available to the public. In addition, public officials cannot try to circumvent the law in other ways. For example, it is contrary to the law for public officials to sequentially call board members to decide the issue or take a straw vote. Similarly, the Cape and Islands district attorney’s office has determined that conducting such straw votes or discussing a permit via emails also violates the law.

For more information, go to the Massachusetts Attorney General’s office, or click here to download the AG’s Open Meeting Law Guidelines.

You can also read the legislation enacted under MGL Chapter 30A: Section 11A 1/2 Open meetings of governmental bodies.

To report an open meeting law violation, provide a written description of events to both the Massachusetts Attorney General and your County District Attorney. Evidence to support your allegations (e.g. statements on videotape during a public hearing) can be helpful. An alternative to this strategy is for three or more registered voters to file a complaint in superior court. This would require the services of an attorney. The governing body would need to respond to the suit by providing evidence that its actions were in compliance with the law. If the court finds that the Open Meeting Law was violated, it could levy civil fines or invalidate decisions of the body where the violation occurred.

Emails and Electronic Communications

The Attorney General’s guidance document on the Open Meeting Law has this information:

“With the advent of computers, it has become more common for persons, both at home and at work, to communicate through electronic mail, or “e-mail.” Like private conversations held in person or over the telephone, e-mail conversations among a quorum of members of a governmental body that relate to public business violate the Open Meeting Law, as the public is deprived of the opportunity to attend and monitor the e-mail “meeting.” Thus it is a violation to e-mail to a quorum messages that can be considered invitations to reply in any medium, and would amount to deliberation on business that must occur only at proper meetings. It is not a violation to use email to distribute materials, correspondence, agendas or reports so that committee members can prepare individually for upcoming meetings.”

What about “newsgroups” and “chat rooms”? We have not seen specific legal guidance on these forums, but any effort to “deliberate” on matters of the meeting with a quorum of board members (e.g. laying out the pros and cons or consequences of a particular decision) would seem to be a violation. Was the public given notice of such an electronic meeting? Does the public have access to the website? If a board member posts a notice to a newsgroup (e.g., about what factors might influence his decision without expecting a reply), is this a deliberation if a quorum of board members belong to a newsgroup? Perhaps there are some parallels in the concept of “chance meetings” where legal opinions have been made. In the handbook “UNDERSTANDING THE OPEN MEETING LAW”, Norfolk County District Attorney William R. Keating writes:

“Chance meetings or social encounters during which board members happen to mention “matters relating to” official business are exempted from the statute. Such meetings, however, cannot be used to circumvent the letter and spirit of the Open Meeting Law. Discussions of official business at chance or social encounters are strongly discouraged.” And also, “A consultation between members of a board and the board’s attorney constitutes an exchange of views among members of the board, and is thus subject to the Open Meeting Law. District Attorney for the Plymouth District v. Board of Selectmen of Middleborough, 395 Mass. 629, 631-633 (1985)(rejecting argument that consultation with attorney did not constitute a meeting and deliberation of the board, as it did not consist primarily of communication between board members themselves). As the above case illustrates, courts are not receptive to hyper-technical arguments that a particular gathering of board members does not fall within the statute because a particular conversation did not amount to deliberations, or that a particular verbal exchange was not in the course of attempting to arrive at a decision.”

If in doubt on any “gray areas” of the Open Meeting Law, town officials can call the Attorney General’s office to get a free legal opinion.

Office of the Attorney General, Municipal Law Unit
1350 Main Street, 4th Floor
Springfield, MA 01103
Tel: (413) 784-1240

Interesting 2005 Local Violation:
Intentionally Whispering is a Violation of the Open Meeting Law

On May 4, 2005, the Wareham Conservation Commission, in its deliberations about a permit application for the Onset Bay Marina, began to whisper over a period of 15 to 20 minutes so that the audience could not hear the content of their discussions. They did this despite repeated requests from the audience that the Commission members speak up. After their whispered discussion, they announced to the public they had voted to accept a revised plan.

These actions caused an uproar with the audience, and a Wareham resident mailed a copy of a tape of the meeting to the District Attorney’s office (it had been broadcast on the local public access cable channel).

The Plymouth County Assistant District Attorney found that the Wareham Conservation Commission violated the open meeting law, and that the tape “demonstrates that the public was not provided its right to hear the Commission’s deliberations.” The Assistant DA noted that the Commission Chairman asserted “it was not necessary for the public to hear the discussion.”

In a rebuke of the Commission’s actions, Assistant District Attorney ordered that the Wareham Conservation Commission acknowledge that they violated the open meeting law at its next open session, make public the substance of its whispered discussions, and provide a written addendum of the minutes of their whispered deliberations.

Read Assistant District Attorney letter to Wareham Town Council

Public Hearings Versus Public Meetings and the Right to Speak

In Massachusetts, as in other states, the operation of appointed and elected boards is generally conducted at a “public meeting,” also called an “open meeting.” Under the Massachusetts Open Meeting Law (MGL 30A 11 1/2), the public has the right to attend public meetings and observe the government board, but the public does not have the right to speak or participate at public meetings. This principal has been affirmed by the US Supreme Court. Some public meetings, or portions of public meetings, may be advertised as “public hearings” (hear from the public) whereby statue, law, regulation, convention, or the board’s agenda, allows for public input. When there is a public hearing, participation by the public is governed by rules or procedures established by the board prior to holding the hearing. Massachusetts residents may find informative this New Hampshire public meeting freedom of speech fact sheet.

To illustrate these points, Massachusetts Conservation Commission hold meetings in accordance with state Wetlands Protection Act regulations 310 CMR 10.0. A nuance of the state wetland regulations is that one type of commission decision called “Requests for Determination of Applicability” are required to be decided at a public meeting [10.05 (2) (b)], but permit applications, like a “Notice of Intent” must be decided at a public hearing [10.05 (5)(a)]. In practice, most Conservation Commissions allow the applicant to speak, and sometimes abutters or even the public when deciding a “Request for Determination” because they feel it is their town’s interest. In general, if a board is holding just a “public meeting,” they may still have the latitude to allow public comment during a public meeting if they feel it is in the best interest of the town or board, and is done in accordance to their rules of order and meeting policies in allowing exceptions.

Conflict of Interest

The Conflict of Interest Law regulates the conduct of all state, county and municipal employees and volunteers, whether paid or unpaid, full or part-time, intermittent or temporary. General Law chapter 268A governs what public officials and employees may do on the job, what they may do after hours, or on the side, and what they may do after they leave public service.

The State Ethics Commission oversees the law, which is enacted as Massachusetts General Law Chapter 268A. The Commission posts decisions and guidelines about the state’s conflict of interest law. Municipal officials, whether appointed or elected, and state and municipal employees should follow the Guidelines for Public Officials and Public Employees. Some of the most frequent allegations we have heard about relate to these four guidelines (excerpted from the Commission’s website):

You may not ask for or accept anything (regardless of its value), if it is offered in exchange for your agreeing to perform or not perform an official act.
You may not ask for or accept anything worth $50 or more from anyone with whom you have official dealings.
You may not hire, promote, supervise, or otherwise participate in the employment of your immediate family or your spouse’s immediate family.
You may not take any type of official action that will affect the financial interests of your immediate family or your spouse’s immediate family. For instance, you may not participate in licensing or inspection processes involving a family member’s business.
You may not take any official action affecting your own financial interest, or the financial interest of a business partner, private employer, or any organization for which you serve as an officer, director or trustee.

Public Disclosure

The State Ethics Commission website notes that “The appearance of a conflict of interest can be dispelled by making a full written disclosure of the relevant facts to the employee’s appointing authority, or if no appointing authority exists, by making a public disclosure. A section 23(b)(3) disclosure is necessary “whenever there exists a potential for serious abuse of a public position by a public employee. This potential for serious abuse need not involve any financial interest on the part of the other party.”

Who do you make the disclosure to? An Ethics Commission fact sheet (AVOIDING “APPEARANCES” OF CONFLICTS OF INTEREST STANDARDS OF CONDUCT (Section 23) states:

Appointed officials must make such disclosures in writing to their appointing authority (the person or board who appointed them to their job). This disclosure must be kept available for public inspection. An elected official’s public disclosure must be made in writing and filed with the city or town clerk. These public disclosures must be made prior to any official participation or action. In addition, if an appearance of a conflict of interest arises in a public meeting, officials would be well advised to make an oral disclosure for inclusion in meeting minutes.

Once a public disclosure has been made, the official may participate in the matter notwithstanding the “appearance” of a conflict. When officials do act on matters affecting individuals with whom they have a private relationship, they must act objectively and be careful not to use their official position to secure any unwarranted privilege or benefit for that person.

These disclosures are public records, and any person may go to the Clerk’s office or appointing board and request to see all public disclosures for a given period, or ask if public disclosures have been made by a particular individual.

How the Massachusetts Election Laws Affect Town Officials

From time to time we receive inquiries from town officials about how their board might support or take a position on a town meeting article or municipal ballot question. We direct these inquiries to the Massachusetts Office of Campaign and Political Finance (OCPF). OCPF is an independent state agency that administers Massachusetts General Laws Chapter 55, the campaign finance law, and Chapter 55C, the limited public financing program for statewide candidates. OCPF provides free legal opinions, and makes available past legal advisory opinions and Interpretive Bulletins on their website.

However, town officials should be aware of a few key concepts about the laws as the apply to town boards supporting town meeting warrants and local ballot questions.

1) Elected and appointed boards can vote resolutions for or against town warrant articles or town ballot questions; it is done all the time. Generally only the Board of Selectmen in towns will decide what may appear as ballot questions in town elections, or as warrant articles at town meeting. The exception to this rule is that many town charters allow for local petition initiatives to initiate warrant articles or ballot questions. Boards of Selectmen generally have to include petition articles on the warrant, irrespective of whether they agree with them, or think they are not “legal.” Call your town clerk for more information.

2) The various Massachusetts campaign and finance election laws apply to town-wide elections and ballot questions, but they do not apply to fund raising or use of public funds for lobbying or electioneering for town meeting warrant articles (read page 4 of OCPF IB-91-01). It is important that electioneering materials for town meeting warrants do not also advocate follow-up votes on town-wide ballot questions.

3) Citizens organized to fund raise and support candidate are called Political Action Committees (PACs); citizens organized to fund raise and support ballot questions are called Ballot Question Committees. See your town clerk about registering, and read the OCPF guidebooks about the rules relating to the involvement of town officials in those organizations.

4) Town boards can provide informational brochures or flyers about a town ballot question and distribute them unsolicited (as in mass mailing) to the public using town resources (town funds or personnel). They can even print advocacy flyers (“vote for ballot question x”) using town resources, and make those flyers available to interested parties (e.g. placing on a counter at town hall), but they cannot distribute these advocacy flyers unsolicited (e.g. mass mailing to residents) using town resources. To understand why this is the case, read this fascinating OCPF advisory opinion (AO-01-03) about a case where the Town of Hull’s Conservation Commission was preparing a flyer advocating that town residents adopt the Community Preservation Act.

Public Records

Please see our page on the Massachusetts Public Records Law and Federal Freedom of Information Act for information on your right to know.

State and Local “officials” versus employees

Generally, throughout the Massachusetts General Laws, “public officials” refer to individuals either elected or appointed to their position by a higher authority. For example, under MGL Chapter 32 Section 1, a “state official” is person appointed by the Governor (Secretaries, heads of Departments and Divisions and other “political appointees”). Most individuals who work for state or local government are more properly termed state or municipal employees. See also the interesting variations of public officials in Chapter 227 of the Acts of 2014.