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December 9‚ 2011
Remote Participation in Meetings Subject to the
Massachusetts Open Meeting Law
By John R. Regier
The Massachusetts Attorney General recently promulgated
regulations authorizing remote
participation in meetings subject to the Open
Meeting Law under certain prescribed circumstances.
The Massachusetts Open Meeting Law has long required public
bodies to conduct their business in meetings that are open to the public.
They cannot, for example, take action by unanimous written consent, as many
private sector boards can. Before 2009, when the legislature enacted
substantial revisions to the Open Meeting Law, there was some uncertainty
about whether members of public bodies could participate in meetings by
telephone. The Attorney General’s office had always said no, but a few
district attorneys, who had jurisdiction over meetings of local bodies, had
said yes.
When the
law was revised in 2009, the answer became clear. Remote participation
in meetings was prohibited, effective July 1, 2010, without the permission
of the Attorney General’s office. (The power to enforce the Open Meeting Law
was also consolidated in the Attorney General’s office.) The Attorney
General was given the power to authorize remote participation by members of
a public body not present at the meeting location, so long as the absent
members and all persons present at the meeting location would be clearly
audible to each other and so long as a quorum of the body, including the
chair, would be present at the meeting location. By promulgating the new
regulations, the Attorney General has decided to allow such remote participation
under certain circumstances, although the Attorney General strongly
encourages members of public bodies to be physically present at meetings
whenever possible.
If a public body wishes to avail itself of this flexibility,
it must first take formal action to adopt the practice of remote
participation, generally by majority vote of the body. Such a vote will
permit remote participation in subsequent meetings of that body and of its
committees. In the case of cities and towns, the mayor (or other chief
executive officer) in a city and the board of selectmen (or other chief
executive officer) in a town are authorized to adopt the practice for all
local public bodies in that municipality.
As required by the statute, members of a public body who
participate remotely and all persons present at the meeting location must
be clearly audible to each other, and a quorum of the body, including the
chair or, in the chair’s absence, the person authorized to chair the
meeting, must be physically present at the meeting location. Members of the
public body who participate remotely are permitted to vote.
There are five permissible reasons for remote participation.
The chair (or other person chairing the meeting) must make a determination
that one or more of the following factors make the member’s physical
attendance unreasonably difficult:
(a) personal illness;
(b) personal disability;
(c) emergency;
(d) military service; or
(e) geographic distance.
At the start of the meeting, the chair must announce the name
of any member who will be participating remotely and the reason. All votes
must be taken by a roll call.
A member participating remotely may participate in an
executive session, but must state at the start of the session that no other
person is present and/or able to hear the discussion at the remote
location, unless the presence of that person is approved by a simple
majority vote of the public body.
A public body may use any technology that enables the remote
participant and all persons present at the meeting location to be clearly
audible to one another, including telephone, Internet, or satellite-enabled
audio or video conferencing. If video technology is used, the remote
participant must be clearly visible to all persons present in the meeting
location.
A municipality or public body may adopt policies that
prohibit or further restrict remote participation.
We will provide further alerts and advisories on future
guidance and regulations issued regarding the new Open Meeting Law.
* * *
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