Source: All Sources > States Legal - U.S. > Massachusetts > Statutes & Legislative Materials > MA - Annotated Laws of Massachusetts TOC: Annotated Laws of Massachusetts > / . . . / > . . . / PART I. ADMINISTRATION OF THE GOVERNMENT > TITLE VII. CITIES, TOWNS AND DISTRICTS > CHAPTER 39. MUNICIPAL GOVERNMENT / . . . TOWN MEETINGS > § 23B. Meetings of Governmental Bodies to be Open; Procedure; Enforcement. Terms: minutes and public (Edit Search) Focus: minutes and public and 303 (Exit FOCUS(TM)) Select for FOCUS(TM) or Delivery Mass. Ann. Laws ch. 39, § 23B ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 2002 Matthew Bender & Company, Inc., one of the LEXIS Publishing (TM) companies All rights reserved *** THIS DOCUMENT IS CURRENT THROUGH 2002 CH. 87, 4/11/02 *** PART I. ADMINISTRATION OF THE GOVERNMENT TITLE VII. CITIES, TOWNS AND DISTRICTS CHAPTER 39. MUNICIPAL GOVERNMENT TOWN MEETINGS Unconverted Image GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY Mass. Ann. Laws ch. 39, § 23B (2002) § 23B. Meetings of Governmental Bodies to be Open; Procedure; Enforcement. All meetings of a governmental body shall be open to the public and any person shall be permitted to attend any meeting except as otherwise provided by this section. No quorum of a governmental body shall meet in private for the purpose of deciding on or deliberating toward a decision on any matter except as provided by this section. No executive session shall be held until the governmental body has first convened in an open session for which notice has been given, a majority of the members have voted to go into executive session and the vote of each member is recorded on a roll call vote and entered into the minutes, the presiding officer has cited the purpose for an executive session, and the presiding officer has stated before the executive session if the governmental body will reconvene after the executive session. Nothing except the limitation contained in this section shall be construed to prevent the governmental body from holding an executive session after an open meeting has been convened and a recorded vote has been taken to hold an executive session. Executive sessions may be held only for the following purposes: (1) To discuss the reputation, character, physical condition or mental health rather than the professional competence of an individual, provided that the individual involved in such executive session has been notified in writing by the governmental body, at least forty-eight hours prior to the proposed executive session. Notification may be waived upon agreement of the parties. A governmental body shall hold an open meeting if the individual involved requests that the meeting be open. If an executive session is held, such individual shall have the following rights: (a) to be present at such executive session during discussions or considerations which involve that individual. (b) to have counsel or a representative of his own choosing present and attending for the purpose of advising said individual and not for the purpose of active participation in said executive session. (c) to speak in his own behalf. (2) To consider the discipline or dismissal of, or to hear complaints or charges brought against, a public officer, employee, staff member, or individual, provided that the individual involved in such executive session pursuant to this clause has been notified in writing by the governmental body at least forty-eight hours prior to the proposed executive session. Notification may be waived upon agreement of the parties. A governmental body shall hold an open meeting if the individual involved requests that the meeting be open. If an executive session is held, such individual shall have the following rights: (a) to be present at such executive session during discussions or considerations which involve that individual. (b) to have counsel or a representative of his own choosing present and attending for the purpose of advising said individual and not for the purpose of active participation. (c) to speak in his own behalf. (3) To discuss strategy with respect to collective bargaining or litigation if an open meeting may have a detrimental effect on the bargaining or litigating position of the governmental body, to conduct strategy sessions in preparation for negotiations with nonunion personnel, to conduct collective bargaining sessions or contract negotiations with nonunion personnel. (4) To discuss the deployment of security personnel or devices. (5) To investigate charges of criminal misconduct or to discuss the filing of criminal complaints. (6) To consider the purchase, exchange, lease or value of real property, if such discussions may have a detrimental effect on the negotiating position of the governmental body and a person, firm or corporation. (7) To comply with the provisions of any general or special law or federal grant-in-aid requirements. (8) To consider and interview applicants for employment by a preliminary screening committee or a subcommittee appointed by a governmental body if an open meeting will have a detrimental effect in obtaining qualified applicants; provided, however, that this clause shall not apply to any meeting, including meetings of a preliminary screening committee or a subcommittee appointed by a governmental body, to consider and interview applicants who have passed a prior preliminary screening. (9) To meet or confer with a mediator, as defined in section twenty-three C of chapter two hundred and thirty-three, with respect to any litigation or decision on any public business within its jurisdiction involving another party, group or body, provided that: (a) any decision to participate in mediation shall be made in open meeting session and the parties, issues involved and purpose of the mediation shall be disclosed; and (b) no action shall be taken by any governmental body with respect to those issues which are the subject of the mediation without deliberation and approval for such action at an open meeting after such notice as may be required in this section. This section shall not apply to any chance meeting, or a social meeting at which matters relating to official business are discussed so long as no final agreement is reached. No chance meeting or social meeting shall be used in circumvention of the spirit or requirements of this section to discuss or act upon a matter over which the governmental body has supervision, control, jurisdiction, or advisory power. Except in an emergency, a notice of every meeting of any governmental body shall be filed with the clerk of the city or town in which the body acts, and the notice or a copy thereof shall, at least forty-eight hours, including Saturdays but not Sundays and legal holidays, prior to such meeting, be publicly posted in the office of such clerk or on the principal official bulletin board of such city or town. The secretary of a regional school district committee shall be considered to be its clerk and he shall file the notice of meetings of the committee with the clerk of each city or town within such district and each such clerk shall post the notice in his office or on the principal official bulletin board of the city or town and such secretary shall post such notice in his office or on the principal official bulletin board of the district. If the meeting shall be of a regional or district governmental body, the officer calling the meeting shall file the notice thereof with the clerk of each city and town within such region or district, and each such clerk shall post the notice in his office or on the principal official bulletin board of the city or town. The notice shall be printed in easily readable type and shall contain the date, time and place of such meeting. Such filing and posting shall be the responsibility of the officer calling such meeting. A governmental body shall maintain accurate records of its meeting, setting forth the date, time, place, members present or absent and action taken at each meeting, including executive sessions. The records of each meeting shall become a public record and be available to the public; provided, however, that the records of any executive session may remain secret as long as publication may defeat the lawful purposes of the executive session, but no longer. All votes taken in executive sessions shall be recorded roll call votes and shall become a part of the record of said executive sessions. No votes taken in open session shall be by secret ballot. A meeting of a governmental body may be recorded by any person in attendance by means of a tape recorder or any other means of sonic reproduction or by means of videotape equipment fixed in one or more designated locations determined by the governmental body except when a meeting is held in executive session; provided, that in such recording there is no active interference with the conduct of the meeting. Upon qualification for office following an appointment or election to a governmental body, as defined in this section, the member shall be furnished by the city or town clerk with a copy of this section. Each such member shall sign a written acknowledgment that he has been provided with such a copy. The district attorney of the county in which the violation occurred shall enforce the provisions of this section. Upon proof of failure by any governmental body or by any member or officer thereof to carry out any of the provisions for public notice or meetings, for holding open meetings, or for maintaining public records thereof, any justice of the supreme judicial court or the superior court sitting within and for the county in which such governmental body acts shall issue an appropriate order requiring such governmental body or member or officer thereof to carry out such provisions at future meetings. Such order may be sought by complaint of three or more registered voters, by the attorney general, or by the district attorney of the county in which the city or town is located. The order of notice on the complaint shall be returnable no later than ten days after the filing thereof and the complaint shall be heard and determined on the return day or on such day thereafter as the court shall fix, having regard to the speediest possible determination of the cause consistent with the rights of the parties; provided, however, that orders with respect to any of the matters referred to in this section may be issued at any time on or after the filing of the complaint without notice when such order is necessary to fulfill the purposes of this section. In the hearing of such complaints the burden shall be on the respondent to show by a preponderance of the evidence that the action complained of in such complaint was in accordance with and authorized by section eleven A1/2 of chapter thirty A, by section nine G of chapter thirty-four or by this section. All processes may be issued from the clerk's office in the county in which the action is brought and, except as aforesaid, shall be returnable as the court orders. Such order may invalidate any action taken at any meeting at which any provision of this section has been violated, provided that such complaint is filed within twenty-one days of the date when such action is made public. Any such order may also, when appropriate, require the records of any such meeting to be made public, unless it shall have been determined by such justice that the maintenance of secrecy with respect to such records is authorized. The remedy created hereby is not exclusive, but shall be in addition to every other available remedy. Such order may also include reinstatement without loss of compensation, seniority, tenure or other benefits for any employee discharged at a meeting or hearing held in violation of the provisions of this section. Such order may also include a civil fine against the governmental body in an amount no greater than one thousand dollars for each meeting held in violation of this section. The rights of an individual set forth in this section relative to his appearance before a meeting in an executive or open session, are in addition to the rights that an individual may have from any other source, including, but not limited to, rights under any laws or collective bargaining agreements, and the exercise or nonexercise of the individual rights under this section shall not be construed as a waiver of any rights of the individual. HISTORY: 1958, 626, § 4; 1960, 437, § 4; 1975, 303, § 3; 1976, 397, § 6; 1977, 527; 1977, 829, § 3; 1978, 372, §§ 10-12; 1980, 220, § 3; 1983, 648; 1985, 333; 1986, 694; 1987, 159; 1988, 116, § 4; 1988, 291; 1989, 341, §§ 18, 19 Amended by 1993, 455, approved Jan 13, 1994, effective 90 days thereafter; 1994, 259, approved Dec 29, 1994, effective March 29, 1995 NOTES: EDITORIAL NOTE-- Acts 1975, ch. 303 § 3, replaced former 23B with a new section pursuant to a statutory scheme to provide a uniform procedure for meetings of governmental bodies at all levels of government. The 1976 amendment made special provision for filing the notice of a meeting of a regional or district governmental body, prescribed certain duties for district attorneys in specified counties rather than districts, and substituted the word "complaint" for the word "petition". The first 1977 amendment rewrote the second sentence of the sixth paragraph, relating to the posting of notices for a regional school district committee meeting. The second 1977 amendment rewrote the fourth sentence of the eleventh paragraph, deleting the reference to § 11B and inserting a reference to § 11A1/2. The 1978 amendment, by § 10, added the notification and individual rights provisions to clauses (1) and (2) of the fourth paragraph, and the words "or to discuss the filing of criminal complaints" to clause (5) of said paragraph; by § 11, provided in the seventh paragraph that votes in executive session be roll call votes; and, by § 12, provided in the twelfth paragraph for a 21-day limit, rather than a 14-day limit, deleted the words "by provision of this section" from the first sentence of the thirteenth paragraph, and added the fourteenth paragraph, dealing with individual rights before governmental bodies. The 1980 amendments rewrote the fourth sentence of the sixth paragraph to require notice of municipal governmental meetings to be printed in easily readable type. The 1983 amendment added a sentence to the thirteenth paragraph concerning reinstatement of an employee discharged at a meeting or hearing held in violation of the provisions of this section. The 1985 amendment rewrote clause (3) of the fourth paragraph, adding at the end of the clause, the words "or contract negotiations with nonunion personnel.". The 1986 amendment added the eighth clause to the fourth paragraph relative to a governmental body's power to consider and interview applicants for employment by preliminary screening committee or subcommittee in executive session. The 1987 amendment, in the eighth paragraph, added language relating to videotaping as a permitted means of recording a meeting of a governmental body. The first 1988 amendment, in the seventh paragraph, inserted the sentence "No votes taken in open session shall be by secret ballot.". The second 1988 amendment, in clause (3) of the fourth paragraph, inserted ", to conduct strategy sessions in preparation for negotiations with nonunion personnel". The 1989 amendment, in the fourth sentence of the eleventh paragraph, following "In the hearing of such", substituted "complaints" for "complaint", and in the twelfth paragraph, substituted "order" for "orders". The 1993 amendment inserted the fourteenth paragraph regarding civil fines for meetings held in violation of this section. The 1994 amendment, in the fourth paragraph, added subparagraph (9). CROSS REFERENCES-- Applicability of section to meetings of Boston Water and Sewer Commission, see ALM Spec L c 17 § 3. TOTAL CLIENT-SERVICE LIBRARY REFERENCES-- 8 Mass Jur, Property § 25:380. 8 Mass Proc, Administrative Procedure §§ 2:12, 25. 5 Mass Proc, Civil Procedure §§ 54:67-69. 56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 140, 147, 148, 151-168. ANNOTATIONS-- Validity, construction, and application of statutes making public proceedings open to the public. 38 ALR3d 1070. Emergency exception under state law making proceedings by public bodies open to the public. 33 ALR5th 731. Attorney-client exception under state law making proceedings by public bodies open to the public. 34 ALR5th 591. TEXTS-- Marzelli and Marzelli, Massachusetts Real Estate, 2d ed. (Michie) Form 38. LAW REVIEW REFERENCES-- Johnson, The "City Lawyer" and the Town Meeting. 55 Mass L Q 363, 1970. Gahan, The Headless Fourth Branch of Government. 64 Mass L Rev 21 February, 1979. Arzt, Privacy Law in Massachusetts: Territorial, Informational and Decisional Rights. 70 Mass L Rev December 1985. CASE NOTES I. IN GENERAL 1. Generally; purpose 2. Applicability 3. Relation to other provisions 4. Notice and hearing 5. Evidence; admissibility of records made at meetings 6. Particular substantive matters-constituting violation of section 7. Not constituting violation of section 8. Practice and procedure 9. Remedies; enforcement 10. Judicial review 11. Miscellaneous II. EXECUTIVE SESSIONS 12. Not to be used for subterfuge 13. Vote to go into session 14. Effect of, and on, other statutory provisions 15. Notice 16. Secrecy; disclosure of records 17. Collective bargaining 18. Litigation strategy 19. Preliminary screening 20. Dismissal or suspension of employee 21. Other particular matters 22. Miscellaneous III. DECISIONS UNDER FORMER LAW 23. Under former ALM GL c 39 § 23C 24. Under former law provisions I. IN GENERAL 1. Generally; purpose That concept of town meeting divided in time and method of action on articles for meeting, but called under single warrant, is well understood in this Commonwealth is shown by provisions of predecessor to this section. Robinson v Selectmen of Watertown (1957) 336 Mass 537, 146 NE2d 900. Open-meeting law is designed to eliminate secrecy surrounding deliberations and decisions on which public policy is based; however, all gatherings of members of governmental bodies need not be open to public. Ghiglione v School Committee of Southbridge (1978) 376 Mass 70, 378 NE2d 984, 99 BNA LRRM 3070. General policy of Open Meeting Law is that all meetings of governmental body should be open to public unless exempted by statute. Doherty v School Committee of Boston (1982) 386 Mass 643, 436 NE2d 1223. Under Open Meeting Law all meetings of governmental body must be open to public and no quorum of governmental body may meet in private for purposes of deciding on or deliberating toward decision on any matter, with 7 specified exceptions. District Attorney for Plymouth Dist. v Board of Selectmen (1985) 395 Mass 629, 481 NE2d 1128, 12 Media L R 1064. ALM GL c 39 § 23B is statutory public waiver of any possible privilege of public client in meetings of governmental bodies except in narrow circumstances stated in statute. District Attorney for Plymouth Dist. v Board of Selectmen (1985) 395 Mass 629, 481 NE2d 1128, 12 Media L R 1064. Open Meeting Law (ALM GL c 39 § 23B) embodies general policy that all meetings of governmental bodies should be open to public unless they are specifically exempted. Pearson v Board of Health (1988) 402 Mass 797, 525 NE2d 400. Goal of Open Meeting Law is to advance democracy by providing broad access to governmental decision-making and eliminating secrecy surrounding deliberations and decisions on which public policy is based. Bartell v Wellesley Housing Authority (1990) 28 Mass App 306, 550 NE2d 883. 2. Applicability GL c 39 § 23B(2) is inapplicable to massive layoffs of public employees based on financial inability of public employer to pay its personnel. Doherty v School Committee of Boston (1982) 386 Mass 643, 436 NE2d 1223. Meeting between governmental body and its attorney is not exception to Open Meeting Law. District Attorney for Plymouth Dist. v Board of Selectmen (1985) 395 Mass 629, 481 NE2d 1128, 12 Media L R 1064. Open Meeting Law did not apply to school committee's selection committee informally appointed by superintendent of schools to assist superintendent in nominating candidate for position of high school principal. Connelly v School Committee of Hanover (1991) 409 Mass 232, 565 NE2d 449, 18 Media L R 2166. Refuse disposal service company had no standing as sole plaintiff in case to enforce open meeting requirements. Vining Disposal Serv., Inc. v Board of Selectmen (1993) 416 Mass 35, 616 NE2d 1065, summary op at (Mass) 21 M.L.W. 3217. Legislative mandate of Open Meeting Law applies to zoning board of appeals. Yaro v Board of Appeals (1980) 10 Mass App 587, 410 NE2d 725. Three member subcommittee of 7 member conservation commission is required to hold open meetings, to give notice of its meetings and to maintain accurate records thereof, whenever it makes findings of fact which are to be reported to commission or in formulating recommendations to commission. Nigro v Conservation Com. of Canton (1984) 17 Mass App 433, 458 NE2d 1219. Judge's ruling that Open Meeting Law protections were inapplicable to members of governmental body which convened meeting was erroneous, but judge did not abuse discretion in not granting damages to assessor-clerk removed from his position, where assessor-clerk had actual notice of meeting and participated in it. Pentecost v Spencer (1990) 29 Mass App 991, 562 NE2d 843, review den (1991) 409 Mass 1101, 565 NE2d 792. Attendance by chairman of town's board of selectmen at nonpublic meeting with officials of adjoining city and others did not violate Open Meeting Law, since chairman was not subcommittee of board. Pearson v Board of Selectmen of Longmeadow (2000) 49 Mass App 119, 726 NE2d 980. Ministerial acts such as scheduling and cancelling meetings are not subject to Open Meeting Law. Pearson v Board of Selectmen of Longmeadow (2000) 49 Mass App 119, 726 NE2d 980. 3. Relation to other provisions Open Meeting Law is not inconsistent with statutes governing procedures for zoning boards of appeal. Yaro v Board of Appeals (1980) 10 Mass App 587, 410 NE2d 725. Where inconsistency exists between Open Meeting Law requiring meetings of governmental bodies to be in public and teacher dismissal law giving school committees discretion to conduct dismissal hearings in public or in private, specific provisions of teacher dismissal law would prevail. Kurlander v School Committee of Williamstown (1983) 16 Mass App 350, 451 NE2d 138, review den (1983) 390 Mass 1103, 454 NE2d 1276. Remedies under Open Meeting Law are not exclusive, and are in addition to all other remedies. Bartell v Wellesley Housing Authority (1990) 28 Mass App 306, 550 NE2d 883. Express statutory right of public employee to have his dismissal considered at public meeting takes precedence over general exception which permits consideration of collective bargaining matters in closed session. Bartell v Wellesley Housing Authority (1990) 28 Mass App 306, 550 NE2d 883. 4. Notice and hearing Notice and hearing requirements of Open Meeting Law and teachers' tenure law are analogous, in that individual hearings are not required where employees are laid off solely for budgetary reasons. Doherty v School Committee of Boston (1982) 386 Mass 643, 436 NE2d 1223. Public notice made conformably with ALM GL c 39 § 23B (Open Meeting Law) sufficient for adjourned sessions. Tebo v Board of Appeals (1986) 22 Mass App 618, 495 NE2d 892, review gr (1986) 398 Mass 1105, 498 NE2d 1357 and affd (1987) 400 Mass 464, 510 NE2d 267. Open Meeting Law requires 48 hours notice by filing and posting, of every meeting of governmental body, except in emergency. Pentecost v Spencer (1990) 29 Mass App 991, 562 NE2d 843, review den (1991) 409 Mass 1101, 565 NE2d 792. Judge's ruling that Open Meeting Law protections were inapplicable to members of governmental body which convened meeting was erroneous, but judge did not abuse discretion in not granting damages to assessor-clerk removed from his position, where assessor-clerk had actual notice of meeting and participated in it. Pentecost v Spencer (1990) 29 Mass App 991, 562 NE2d 843, review den (1991) 409 Mass 1101, 565 NE2d 792. 5. Evidence; admissibility of records made at meetings Minutes of town zoning board meetings were not admissible to prove truth of evidence before board recorded in minutes, i.e., date particular use of property began. Building Inspector of Chatham v Kendrick (1983) 17 Mass App 928, 456 NE2d 1151. Minutes of town's zoning board are admissible to prove certain matters such as date of meeting, motions made, votes taken, members present and absent, and reasons stated for decision, but board's findings have no evidentiary weight. Building Inspector of Chatham v Kendrick (1983) 17 Mass App 928, 456 NE2d 1151. Open Meeting Law did not give right to videotape city council proceedings. Wright v Lawrence (1985) 21 Mass App 343, 486 NE2d 1151. 6. Particular substantive matters-constituting violation of section School committee violated open-meeting law by failing to disclose at public meeting names of applicants for position of superintendent of schools, where it could not show that disclosure of names would impinge on any candidate's statutory right of privacy. Atty. Gen. v School Committee of Northampton (1978) 375 Mass 127, 375 NE2d 1188. Town planning board did not comply with Open Meeting Law when board specified conditions for approval of subdivision plan after adjournment of public hearing. J. & C. Homes, Inc. v Planning Board of Groton (1979) 8 Mass App 123, 391 NE2d 1232. 7. Not constituting violation of section Open Meeting Law does not require board to hold public hearing for purpose of reducing to writing decision reached at meeting which was open to public and where accurate records of meeting were kept and substance of decision was made known to public. Yaro v Board of Appeals (1980) 10 Mass App 587, 410 NE2d 725. Where zoning board granted special permit complied with Open Meeting Law, any technical violations were de minimis. Tebo v Board of Appeals (1986) 22 Mass App 618, 495 NE2d 892, review gr (1986) 398 Mass 1105, 498 NE2d 1357 and affd (1987) 400 Mass 464, 510 NE2d 267. 8. Practice and procedure In suits under Open Meeting Law each party must bear its own legal costs. Pearson v Board of Health (1988) 402 Mass 797, 525 NE2d 400. GL c 39 § 23B has strict statute of limitations for complaints seeking to invalidate actions taken at meetings held in violation of Open Meeting Law, i.e., 21 days of date when action is made public. Benevolent & Protective Order of Elks, Lodge No. 65 v City Council of Lawrence (1988) 403 Mass 563, 531 NE2d 1254, later proceeding (1992) 33 Mass App 701, 604 NE2d 715. Any violation of Open Meeting Law, consisting of city council president's privately speaking with council members prior to meeting as to how they would vote on redevelopment project, was cured by holding of later meeting in compliance with law. Benevolent & Protective Order of Elks, Lodge No. 65 v City Council of Lawrence (1988) 403 Mass 563, 531 NE2d 1254, later proceeding (1992) 33 Mass App 701. Judge did not abuse discretion in not exercising authority to order rescission of vote discharging housing authority maintenance director for violations of Open Meeting Law, while ordering public hearing to be held with notice to director of charges against him and opportunity to confront witnesses and present rebuttal. McDermott v Watertown Housing Authority (1988) 25 Mass App 995, 521 NE2d 1387. 9. Remedies; enforcement Redevelopment authority's violation of Open Meeting Law on one date did not have effect of invalidating determination made at meeting two days later at which Open Meeting Law's requirements were followed. Benevolent & Protective Order of Elks, Lodge No. 65 v Planning Bd. of Lawrence (1988) 403 Mass 531, 531 NE2d 1233, later proceeding (1988) 403 Mass 563, 531 NE2d 1254, later proceeding (1992) 33 Mass App 701, 604 NE2d 715. School committee's screening committee did not violate Open Meeting Law by withholding names of individuals it considered during preliminary screening process. Gerstein v Superintendent Search Screening Committee (1989) 405 Mass 465, 541 NE2d 984, 16 Media L R 2486. Where zoning board granted special permit complied with Open Meeting Law, any technical violations were de minimis. Tebo v Board of Appeals (1986) 22 Mass App 618, 495 NE2d 892, review gr (1986) 398 Mass 1105, 498 NE2d 1357 and affd (1987) 400 Mass 464, 510 NE2d 267. Power to set aside public action because of violations of ALM GL c 39 § 23B is discretionary in nature. Tebo v Board of Appeals (1986) 22 Mass App 618, 495 NE2d 892, review gr (1986) 398 Mass 1105, 498 NE2d 1357 and affd (1987) 400 Mass 464, 510 NE2d 267. Remedies under Open Meeting Law are not exclusive, and are in addition to all other remedies. Bartell v Wellesley Housing Authority (1990) 28 Mass App 306, 550 NE2d 883. Judge's ruling that Open Meeting Law protections were inapplicable to members of governmental body which convened meeting was erroneous, but judge did not abuse discretion in not granting damages to assessor-clerk removed from his position, where assessor-clerk had actual notice of meeting and participated in it. Pentecost v Spencer (1990) 29 Mass App 991, 562 NE2d 843, review den (1991) 409 Mass 1101, 565 NE2d 792. 10. Judicial review Interpretation of Open Meeting Law to require meeting between governmental body and its attorney to be in public does not violate Article 30 of Declaration of Rights. District Attorney for Plymouth Dist. v Board of Selectmen (1985) 395 Mass 629, 481 NE2d 1128, 12 Media L R 1064. Where board of selectmen violated Opening Meeting Law by holding private executive session with its attorney, judge's order that records of closed session be made public was correct, but order that board carry out provision of law at future meetings was too broad and should be replaced with order that board hold executive sessions only for purposes enumerated in statute. District Attorney for Plymouth Dist. v Board of Selectmen (1985) 395 Mass 629, 481 NE2d 1128, 12 Media L R 1064. Judge erred in ordering that city board of health pay attorney's fees and costs ($ 3,050.18) to 3 plaintiffs who successfully brought action to invalidate board meetings due to violation of Open Meeting Law on private attorney general theory, but because violations were open and flagrant, case would be remanded for judge to determine if board's defenses were frivolous so as to allow award of attorney's fees to plaintiffs. Pearson v Board of Health (1988) 402 Mass 797, 525 NE2d 400. Complaint alleging violation of Open Meeting Law based on conversations between president of city council with other members of city council, individually and privately, before council voted at public meeting to approve urban redevelopment project was barred by running of 21-day statute of limitations. Benevolent & Protective Order of Elks, Lodge No. 65 v Planning Bd. of Lawrence (1988) 403 Mass 531, 531 NE2d 1233, later proceeding (1988) 403 Mass 563, 531 NE2d 1254, later proceeding (1992) 33 Mass App 701, 604 NE2d 715. Superior Court Judge had discretion to return case to Planning Board for new determination as to whether to grant request for endorsement of plan of land that approval of Board was not required. Kelley v Planning Board of Dennis (1978) 6 Mass App 24, 372 NE2d 275. Judge has discretion to invalidate action of Board but is not required to do so. Robinson v Planning Board of Hingham (1978) 6 Mass App 835, 372 NE2d 279. Action of school committee discharging school principal invalidated due to violation of Open Meeting Law; however, reinstatement to position is not proper remedy, rather backpay from date of faulty discharge was proper. Puglisi v School Committee of Whitman (1981) 11 Mass App 142, 414 NE2d 613. Open Meeting Law was not violated by school committee which held public hearings on teacher's dismissal, deliberated in private, and voted in public to dismiss teacher, because school committee had unfettered discretion by statute (ALM GL c 71 § 42) to close all, part, or none of hearing. Kurlander v School Committee of Williamstown (1983) 16 Mass App 350, 451 NE2d 138, review den (1983) 390 Mass 1103, 454 NE2d 1276. Where discharge of housing authority employee was invalidly approved by authority at executive session in violation of Open Meeting Law, employee was entitled to backpay from date of wrongfully-held closed hearing to date of properly-held open hearing. Bartell v Wellesley Housing Authority (1990) 28 Mass App 306, 550 NE2d 883. 11. Miscellaneous Interviews by screening committee of school committee of candidates for position of school superintendent by use of prepared questions constituted "verbal exchange." Gerstein v Superintendent Search Screening Committee (1989) 405 Mass 465, 541 NE2d 984, 16 Media L R 2486. Open Meeting Law did not give right to videotape city council proceedings. Wright v Lawrence (1985) 21 Mass App 343, 486 NE2d 1151. Police sergeant was not entitled to qualified immunity on journalist's § 1983 false arrest claim, where he arrested journalist trying to videotape scheduled meeting of town historic district commission for weekly cable news program, because arrest was clearly improper in light of ALM GL c 39 § 23B's broad grant of right to videotape meetings of governmental bodies. Iacobucci v Boulter (1999, CA1 Mass) 193 F3d 14. II. EXECUTIVE SESSIONS 12. Not to be used for subterfuge Executive session held by school committee, although following letter of law, was sham, in that superintendent of schools called session to consider his own "reputation and character" when true purpose was to discuss of elementary school principal who was subject of discharge proceeding pending before committee. Puglisi v School Committee of Whitman (1981) 11 Mass App 142, 414 NE2d 613. Exceptions in G L c 39 § 23B are not to be used for subterfuge to retreat from open meeting into executive session. District Attorney for Northwestern Dist. v Board of Selectmen (1981) 11 Mass App 663, 418 NE2d 642. 13. Vote to go into session Majority vote to go into executive session was not achieved when one selectman voted in favor and two others abstained. District Attorney for Northwestern Dist. v Board of Selectmen (1981) 11 Mass App 663, 418 NE2d 642. 14. Effect of, and on, other statutory provisions Provision in ALM GL c 71 § 42 giving school committee discretion to hold hearing on dismissal of teacher in public or private does not supersede provision of Open Meeting Law (ALM GL c 39 § 23B) governing publication of minutes of executive sessions. Foudy v Amherst-Pelham Regional School Committee (1988) 402 Mass 179, 521 NE2d 391. School committee did not violate Open Meeting Law by excluding teacher and his counsel from its deliberations regarding dismissal of teacher, because ALM GL c 71 § 42 governing dismissal of public school teachers authorized private deliberations. O'Sullivan v School Committee of Worcester (1991) 411 Mass 123, 579 NE2d 160. 15. Notice School committee's screening committee's violation of Open Meeting Law by convening in executive session without first announcing whether it would reconvene in open session was de minimus, since committee did not reconvene in open session. Gerstein v Superintendent Search Screening Committee (1989) 405 Mass 465, 541 NE2d 984, 16 Media L R 2486. 16. Secrecy; disclosure of records School committee lacked authority and discretion to keep secret minutes of several executive sessions discussing whether to dismiss school administrator for engaging in acts of sexual harassment of other school employee after administrator had resigned and related litigation had terminated. Foudy v Amherst-Pelham Regional School Committee (1988) 402 Mass 179, 521 NE2d 391. School committee which promised administrator charged with sexual harassment that it would keep minutes of its executive sessions private if administrator resigned did not have authority to carry out such promise in perpetuity. Foudy v Amherst-Pelham Regional School Committee (1988) 402 Mass 179, 521 NE2d 391. Failure of minutes to recite how members of committee voted was not violation of ALM GL GL ch 39 § 23B, seventh paragraph, because nothing in record suggested that member who rated and discussed candidates for position actually voted at meeting. Gerstein v Superintendent Search Screening Committee (1989) 405 Mass 465, 541 NE2d 984, 16 Media L R 2486. ALM GL c 39 § 23B(7), fourth paragraph, requiring keeping of accurate records of meetings and executive sessions, does not prohibit governmental body from going "off record," nor does it require transcribing or recording of executive session discussions. Perryman v School Committee of Boston (1983) 17 Mass App 346, 458 NE2d 748. 17. Collective bargaining School committee, by holding teacher's grievance hearing in closed session, did not violate open-meeting law, since grievance procedure is part of collective bargaining process which is specifically made one of purposes for closed executive sessions. Ghiglione v School Committee of Southbridge (1978) 376 Mass 70, 378 NE2d 984, 99 BNA LRRM 3070. Where school committee could properly anticipate challenge by teachers' union to layoffs based on limited funds available to school committee, committee's meeting in executive session fell within exception provided by GL c 39 § 23B(3) and its action need not be ratified in open meeting. Doherty v School Committee of Boston (1982) 386 Mass 643, 436 NE2d 1223. School committee, by holding executive session for purpose of discussing salaries and working conditions for certain nonunion employees, was not in violation of open meeting law, since executive session fell within statutory exemption "to discuss strategy with respect to collective bargaining." Atty. Gen. v School Committee of Taunton (1979) 7 Mass App 226, 386 NE2d 1295, 5 Media L R 1073. Selectmen who refused to conduct collective bargaining sessions in closed executive sessions committed unfair labor practice. Board of Selectmen v Labor Relations Com. (1979) 7 Mass App 360, 388 NE2d 302. Executive session to allow selectmen to discuss with department heads salaries of nonunion employees was not exception to open meeting requirement, as it was not discussion of strategy for collective bargaining. District Attorney for Northwestern Dist. v Board of Selectmen (1981) 11 Mass App 663, 418 NE2d 642. 18. Litigation strategy GL c 39 § 23B(3) does not require school committee to reconvene in open meeting if, at time it goes into executive session, matters to be discussed concerned litigation strategy and open meeting might have adverse impact on committee's litigation position. Doherty v School Committee of Boston (1982) 386 Mass 643, 436 NE2d 1223. 19. Preliminary screening Preliminary screening committee is authorized to consider and interview applicants for employment in executive session unless applicants have passed prior preliminary screening, and review of resumes and writing samples does not constitute "prior preliminary screening." Gerstein v Superintendent Search Screening Committee (1989) 405 Mass 465, 541 NE2d 984, 16 Media L R 2486. Exception (8) to Open Meeting Law means that once screening committee has completed its screening, which may include more than one step and may or may not include interviews, and has voted to recommend candidate, that process may not be repeated in executive session. Gerstein v Superintendent Search Screening Committee (1989) 405 Mass 465, 541 NE2d 984, 16 Media L R 2486. School committee's screening committee's violation of Open Meeting Law by convening in executive session without first announcing whether it would reconvene in open session was de minimus, since committee did not reconvene in open session. Gerstein v Superintendent Search Screening Committee (1989) 405 Mass 465, 541 NE2d 984, 16 Media L R 2486. Interviewing and evaluating applicants for position of school superintendent by screening committee of school committee in "executive session" closed to public did not violate Open Meeting Law, since under exception (8) interviews in open session might have detrimental effect in obtaining qualified applicants and candidates had not passed prior preliminary screening. Gerstein v Superintendent Search Screening Committee (1989) 405 Mass 465, 541 NE2d 984, 16 Media L R 2486. 20. Dismissal or suspension of employee When school committee meets in executive session to consider dismissal of many tenured teachers due to budgetary constraints, it may do so without giving notice to teachers, because such dismissals do not involve any particular teacher nor are they concerned with misconduct or discipline of any individual teacher. Doherty v School Committee of Boston (1982) 386 Mass 643, 436 NE2d 1223. School committee did not violate Open Meeting Law by excluding teacher and his counsel from its deliberations regarding dismissal of teacher, because ALM GL c 71 § 42 governing dismissal of public school teachers authorized private deliberations. O'Sullivan v School Committee of Worcester (1991) 411 Mass 123, 579 NE2d 160. School committee's decision to meet in executive session while considering whether indicted teachers should be suspended fell within exemption of GL c 39 § 23B(3). Perryman v School Committee of Boston (1983) 17 Mass App 346, 458 NE2d 748. School committee could close portion of meeting concerning suspension of indicted teachers, where executive session was held for appropriate reason and teachers were present but chose not to exercise right to speak. Perryman v School Committee of Boston (1983) 17 Mass App 346, 458 NE2d 748. 21. Other particular matters Vote of zoning board at closed executive session was meeting held in violation of Open Meeting Law. Yaro v Board of Appeals (1980) 10 Mass App 587, 410 NE2d 725. Executive session held by school committee, although following letter of law, was sham, in that superintendent of schools called session to consider his own "reputation and character" when true purpose was to discuss of elementary school principal who was subject of discharge proceeding pending before committee. Puglisi v School Committee of Whitman (1981) 11 Mass App 142, 414 NE2d 613. 22. Miscellaneous Closed executive session between board of selectmen and its attorney concerning negotiation of contract for rubbish disposal was "meeting" and was held in violation of Open Meeting Law. District Attorney for Plymouth Dist. v Board of Selectmen (1985) 395 Mass 629, 481 NE2d 1128, 12 Media L R 1064. Open Meeting Law applies only to "governmental bodies" as defined by ALM GL c 39 § 23A. Connelly v School Committee of Hanover (1991) 409 Mass 232, 565 NE2d 449, 18 Media L R 2166. III. DECISIONS UNDER FORMER LAW 23. Under former ALM GL c 39 § 23C Where Board of Zoning Adjustment of city of Boston voted to make certain changes in zoning law at executive meeting of which no notice of open meeting was given and no open meeting held, it was decided that such vote was validated by provisions of former § 23C, which validates action otherwise duly taken where no public notice of meeting is given, and which by construction also validates such action where no open meeting is held. Elmer v Board of Zoning Adjustment (1961) 343 Mass 24, 176 NE2d 16. Legislative intent is plain that § 23C was to validate board meetings held in violation of requirement that such meetings be open. Elmer v Board of Zoning Adjustment (1961) 343 Mass 24, 176 NE2d 16. Former § 23C took effect as of Jan. 5, 1959. Elmer v Board of Zoning Adjustment (1961) 343 Mass 24, 176 NE2d 16. Provision of former § 23C that "action otherwise duly taken at any meeting shall not be invalidated by failure of any officer to carry out. . . responsibilities for public notice of meetings" was referred to in connection with discussion of validity of meetings of zoning board of appeals. Dion v Board of Appeals (1962) 344 Mass 547, 183 NE2d 479. Even if terms of c. 39, §§ 23A and 23C as to open meetings required that action for removal of assessor under c. 41 § 25 be made at open meeting, such removal was not invalid because made at hearings in executive session. Reilly v Board of Selectmen (1963) 345 Mass 363, 187 NE2d 838. Instant section was referred to in case involving taking by town pursuant to school building committee's recommendation, in connection with proposition that nothing turned on absence of formal notice of committee's hearing. Del Prete v Board of Selectmen (1966) 351 Mass 344, 220 NE2d 912. 24. Under former law provisions Action filed beyond 14 day period, alleging violation of Open Meeting Law, properly dismissed (prior to extension of time period, in 1978, to 21 days). Nantucket Land Council, Inc. v Planning Board of Nantucket (1977) 5 Mass App 206, 361 NE2d 937. Effect of 1974 amendment with respect to 14-day period is that it runs from date of forbidden "action" and not from date when action was made public, discovered by plaintiff, or intended to take effect (in case decided prior to extension of period to 21 days). Nantucket Land Council, Inc. v Planning Board of Nantucket (1977) 5 Mass App 206, 361 NE2d 937. Source: All Sources > States Legal - U.S. > Massachusetts > Statutes & Legislative Materials > MA - Annotated Laws of Massachusetts TOC: Annotated Laws of Massachusetts > / . . . / > . . . / PART I. ADMINISTRATION OF THE GOVERNMENT > TITLE VII. CITIES, TOWNS AND DISTRICTS > CHAPTER 39. MUNICIPAL GOVERNMENT / . . . TOWN MEETINGS > § 23B. Meetings of Governmental Bodies to be Open; Procedure; Enforcement. Terms: minutes and public (Edit Search) Focus: minutes and public and 303 (Exit FOCUS(TM)) View: Full Date/Time: Tuesday, April 30, 2002 - 8:24 AM EDT About LexisNexis | Terms and Conditions Copyright © 2002 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.