Governor Baker Signs Executive Order On Open Meeting Law In MA

MASSACHUSETTS — Gov. Charlie Baker signed an order suspending parts of open meeting law to let local municipalities make quicker decisions during COVID-19 state of emergency.

Baker issued an Executive Order suspending some provisions of open meeting law - a law that was designed to ensure transparency in government - during the ongoing COVID-19 public health emergency on Thursday.

The order comes as many municipal officials raised concern about how to make quick decisions and how to practice health official recommendations to help reduce the spread of the new coronavirus. The temporary order allows cities and towns can now restrict access to many public buildings, hold meetings and hearings remotely, place caps on the size of public meetings and events among other things as a way to protect the public and those most vulnerable to the novel coronavirus through social distancing.

According to the CDC, "Social distancing means remaining out of congregate settings, avoiding mass gatherings, and maintaining distance (approximately 6 feet) from others when possible.

What's changed:

Open meeting law requires public bodies conduct meetings in a public place that is open and physically accessible to the public. The new provision allows that to be modified as long as the public body makes provision to ensure public access to the deliberations of the public body "through adequate, alternative means."

That may include 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, according to the Attorney General’s Division of Open Government, which is charged with enforcing the law.

If a municipal public doesn't have the financial resources to provide a modified means of real-time access, can post on its municipal website a full and complete transcript, recording, or other comprehensive record of the proceedings as soon as practicable afterwards, according to the temporary adjustment.

The governor's order also allows for members of a public body may participate in a meeting remotely, rather than requiring a quorum of the body and the chair be physically present at the meeting location, according to the Attorney General’s office.

What hasn't changed:

Public bodies are still required to post meeting notices, create and maintain accurate minutes, and be specific and follow the law's rules when it comes to closed door executive sessions.

What about Town Meeting?

Town Meeting is not subject to Open Meeting Law. Still, municipalities are looking at whether they could follow the same rules as the executive order.

"It may be most applicable, in my opinion, to Representative Town Meetings with elected members and a defined number as opposed to open town meetings where any citizen can attend and vote," said Mark DiSalvo, North Andover town moderator and a co-chair of the forward-looking 2040 Committee of the Massachusetts Moderators Association.

"It is clear under the law that there needs to be a named location for a meeting. It is less clear thereafter."

DiSalvo said under Massachusetts law, voters may participate from a physical location separate from the physical address of the main meeting hall if They are connected to the main hall by a two-way public address system (ie the internet or conference call); The remote location is within the town’s borders, absent allowance by special law, charter, or by-law; The remote location has been listed in the warrant; and The moderator has some means for determining that the person casting a vote is named on the voting list.

Support from the Massachusetts Municipal Association

The Massachusetts Municipal Association has argued that the open meeting law and related regulations would make it nearly impossible to conduct necessary governmental business and abide by health official recommendations.

“The governor’s Executive Order provides municipalities and state agencies with an important measure of relief from the open meeting law during the public health emergency,” said Association Executive Director Geoff Beckwith. “The MMA has been in close contact with the governor’s office regarding open meeting law issues, and many others, and we appreciate that the administration is taking action to address those concerns.”

• Read the governor’s Executive Order Suspending Certain Provisions of the Open Meeting Law

• See MMA’s Coronavirus News and Resources for Local Government Leaders page