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   TOWN MEETINGS  >  23B. Meetings of Governmental
   Bodies to be Open; Procedure; Enforcement.
   

   

   
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                       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
   
                                      
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                    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.
   

   

   
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