By Matthew Bernat
Staff Writer
REGION – Requiring the Pledge of Allegiance, the right to address a public board, advertising a meeting through print, television or mail – all fallacies people attach to the Open Meeting Law.
Earlier this year, legislators revamped the law and July 1, 2010, marks the first day town boards face new rules regarding email, enforcement and record keeping.
The recent emergence of Attorney General Martha Coakley in the missing email investigation involving a top aide to Boston Mayor Thomas Menino only highlights how seriously the judiciary regards the law. Public officials, take heed.
Attorney Lauren F. Goldberg, of the municipal law firm Kopelman and Paige, P.C., led an information session held in Sturbridge Sept. 30 to inform the region’s officials of the statute as it stands, and what can be expected come July.
She began by addressing common misconceptions.
“The Open Meeting Law says nothing about the pledge of allegiance, but believe it or not many district attorneys receive complaints from individuals who complain about the pledge not being recited,” Goldberg said. “It’s not a violation.”
Regarding the public’s right to address a board: It doesn’t exist. Goldberg said citizens could address a board or committee in open meeting only if recognized by the chair. The law does not compel a chair to recognize anyone, she said.
Posting a public meeting must be done 48 hours before it’s scheduled, but the notice doesn’t have to be in a newspaper, on television or mailed. The law stipulates the posting be in a public place accessible to all, Goldberg said.
The heart of the session focused on the law’s intent, which seeks to eliminate secrecy around deliberations on public policy by forcing those talks into the open.
It does that by prohibiting board members from making decisions on public affairs outside of posted meetings.
While members cannot schedule to meet outside of posted meetings, a clause allows chance or social meetings between members. During a chance meeting members are not prohibited from discussing public business, however it is illegal to reach a decision.
Goldberg said though the law allows discussion at these chance meetings, the better practice is to not have that conversation.
“Kopelmam and Paige says, no discussion, please avoid it, it leads to bad results, much better to leave public business for the public forum,” she said.
According to Goldberg, discussion extends to email and social media such as Facebook and Twitter. She noted, for the purposes of the law, receiving a message on policy constitutes discussion, even if there is no reply from the recipient.
Should board members or public officials discuss policy or other decisions from home-based email accounts, or social media, those correspondences would be subject to disclosure upon request.
To comply, some towns draft policy to avoid officials or employees improperly deleting emails, Goldberg said. According to the law, public records must be kept for seven years before disposable. Some municipalities copy emails to a town hall employee, or mandate employees outside of town hall print emails and bring them to the office weekly for storage.
Those who violate the law must now contend with sweeping changes in its enforcement.
Currently, citizens must file an Open Meeting Law complaint with the district attorney’s office, which would then contact the town. Local officials then respond to the district attorney. In July, the attorney general’s office will be granted greater authority in dealing with complaints.
“I think this is very significant. It’s really putting the attorney general in a very powerful position,” Goldberg said.
Under the revision, complaints will be filed with the town, which has 14 days to forward the grievance to the attorney general. Towns must report if remedial action was taken.
If a violation is discovered the attorney general will have authority to void action a board or committee took during the breach.
Also, the attorney general can reinstate an employee without loss of compensation, seniority, tenure or other benefits, if the law is violated.
Goldberg described the latter as, “a pretty extraordinary remedy.” She noted such action was previously handled by the Superior Court.
The attorney general’s office will also have the authority to impose a civil penalty upon a public body of not more than $1,000 for each intentional violation.
But, if a board recognizes a violation beforehand, and addresses it, the attorney general will take that into account if a formal complaint is filed.
“One of the ways that you fix an open meeting law violation, or potential violation by having a full and fair discussion of the issues on the record at the next properly posted meeting” she said.
The best action for public officials, Goldberg said, is to keep debate transparent, in keeping with the spirit of the law.
