New Open Meeting Law Possibly Upends Aldermen's Rules

What started out as a minor modification of the Melrose Board of Aldermen's rules to comply with the state's new Open Meeting Law revealed that long-standing board practices may run afoul of the law.

In lieu of making any changes to the board's rules (PDF), the aldermen's Legal and Legislative Matters committee voted Monday night to not take any action until the board can confer with Melrose City Solicitor Rob Van Campen.

The first practice in question is "removing an order from committee." That rule allows any alderman during a full board meeting, as long as no other alderman objects, to take an order that is still before one of the aldermen's subcommittees — and that's not on the full board's meeting agenda — and bring it forward to the full board for discussion at that meeting.

Another practice is "immediate consideration." Normally, orders presented to the full Board of Aldermen for the first time are sent to one of the aldermen's subcommittees for discussion. However, an alderman can request that an order on the full board's agenda be taken up for immediate consideration and, as long as no other alderman objects, the board can vote on the order that evening.

While not frequently used, both practices are not uncommon and are sometimes used by the aldermen to take action on orders where time is a factor — meeting an imposed deadline, voting before the end of the fiscal year, or voting before the aldermen take their summer break. Immediate consideration is sometimes used to move along non-controversial items, such as license applicants who've received all the appropriate approvals from relevant city departments, or mayoral appointments to boards such as the Melrose Human Rights Commission.

The rule changes before the aldermen on Monday night primarily sought to conform the aldermen's rules to the requirement of posting notice of a meeting 48 hours in advance of the meeting, a requirement of the new Open Meeting Law that went into effect July 1. Alderman at-Large Paul Brodeur said it was "very much a technical amendment," noting that the aldermen have long posted their agendas online in advance of a meeting, as well as within City Hall.

Alderman points out rule's potential violation of new law

However, Ward 6 Alderman Peter Mortimer pointed out that the aldermen's rule regarding taking an order from committee could potentially violate the new Open Meeting Law, which states that notices of a meeting must include a list of topics "that the chair reasonably anticipates will be discussed at the meeting." Taking an order from committee would mean the board would discuss an order that wasn't listed on the meeting notice.

Brodeur offered to change the rule so that an order that does not appear on the agenda could not be taken from committee, but then Board President and Ward 3 Alderman Frank Wright added another wrinkle, pointing out that the committees earlier on Monday evening had voted on a number of orders — which would normally then be sent to the full board — but then those orders didn't specifically appear on the agenda for the full board meeting scheduled for later the same night.

Wright, who is the acting city solicitor for Somerville, noted that the orders were technically posted in advance as items that would be discussed that evening, but only as items that would be discussed by committees — not by the full board.

Ward 2 Alderman Monica Medeiros said she interpretates the law to mean that because the full board meeting is a separate meeting, any orders that would be discussed during the full board meeting would have to be listed on the notice — regardless of whether or not those orders were being posted in notices for discussion earlier in the evening during committee meetings.

Medeiros suggested that the full board agendas could account for items that may receive committee approval by adding the caveat "if recommended by the committee," a common practice used on committee agendas for orders that require approval by more than one committee.

Aldermen criticize Legislature, AG's Office

Wright laid the blame for the confusing state of affairs on state legislators and the Attorney General's Office, which has taken over enforcement of the Open Meeting Law from county District Attorney Offices.

"Part of the problem ... is the Legislature passed an Open Meeting Law without consulting with municipalities," he said. "They didn't really take into consideration what happens at the municipal level. They had to create a new Division of Open Government in the Attorney General's office, which did not have the foresight to develop rules for us to follow. Those won't be ultimately written probably for months. They've left us and every other city and town in the commonwealth dangling in trying to figure out what the Open Meeting Law means."

Brodeur said that he believed Medeiros' suggestion would be the "safest way to go," but then brought up the issue of "immediate consideration," which in his view "seems like a slam dunk no-on under the new law." Mortimer responded that the problem isn't with orders on the agenda — as in the case of immediate consideration — and added that the new law contains emergency exceptions.

Alderman at-Large Don Conn said the board should have Van Campen weigh in on how the new Open Meeting Law affects the board's rules. He agreed with Wright's assessment of the state Legislature, calling the situation "just one of a thousand examples where the Great and General Court and powers that be are rushing to say they've solved the problem," and instead "created more problems than they've solved.

"If we can't do orders from committee and vote on the same night for a period of time while we're trying to address this, I think we'll just have to suck it up," Conn said.