The main message that Jason Talerman of New Bedford-based Mead, Talerman & Costa LLC put out to attendees of Monday night’s special Rochester Select Board meeting was that the Commonwealth of Massachusetts’ Division of Open Government is looking for educated compliance with the Open Meeting Law, not to set a trap to snare an unsuspecting community volunteer.
After all, said Talerman referencing a typical perusal of his inbox, any given day he is bound to trip over a half-dozen Open Meeting Law violations.
“Email is the biggest trap out there for violations,” said Talerman, whose one-hour PowerPoint presentation at the Senior Center brought out several chairpersons of municipal, adjudicatory boards and dozens of board, commission and committee members.
The hour spent on Monday night was the prelude to Lisa Sullivan’s appearance on behalf of the state agency Green Communities.
The Select Board thought it timely to get better acquainted with Mead, Talerman & Costa LLC, Rochester’s new town counsel and, at the same time, refresh and otherwise educate less-experienced elected officials. As Select Board Chairman Woody Hartley explained to The Wanderer, Open Meeting Law is only the first topic of discussion. More topics relevant to public service will be addressed in future meetings.
Learning how to avoid unintentional violations of the state’s Open Meeting Law (M.G.L. c. 30A, Sections 18-25) was mutually considered an appropriate place to start, and Talerman stressed that the law doesn’t exist for the officials or even the applicants who file with the Planning Board or Conservation Commission, for instance, but the public.
The law is meant to ensure townspeople have an opportunity to know what’s going on and to comment on it, be it deliberations (any considerations between members of a public board, committee or commission that go beyond general correspondence or fact finding) or actions (votes.)
Upon Talerman’s examples of email mistakes that constitute Open Meeting Law violations, Planning Board member Ben Bailey suggested using the “bcc” rather than “cc” address function to keep members from being able to view other recipients and then reply-all.
“Great tip,” said Talerman, who did not stop there. He pointed out more possible email-related infractions of the Open Meeting Law as food for thought. For instance, a singular reply to a chairperson’s email about committee business, followed by the forwarding of the chairperson’s email to another member with a comment, establishes a chain.
“Now three people are in the discussion,” he explained. “Serial communications through email are a real trap. We’re probably going to all violate at some point.”
Social media brings its own potential problems.
Talerman advised elected officials against getting caught up in Facebook discussions, even if a board member read misinformation and stopping short of offering an opinion sought out to set the record straight. Hypothetically, should another board member chime in 10 comments later, then a third, they may not even see that other members posted and be in violation.
“No good deed goes unpunished,” said Talerman.
When it comes time to report an Open Meeting Law violation, the Attorney General frowns upon ignorance as an excuse. Learning the law, explained Talerman, is an essential part of becoming an elected municipal official.
Prior to state supervision, the Open Meeting Law was governed by each county’s District Attorney Office. A lack of consistency in the application of the law led to the state taking over. Now even state agencies are governed by the Open Meeting Law.
While the state takes into consideration the many volunteers who do not deserve to be discouraged in their effort to serve their communities, proper reporting of Open Meeting Law violations remains mandatory.
Actual sanctions, reinforced Talerman, target those who show no interest in compliance or repeat the same violations over and over again.
Talerman went on to discuss definitions of terms such as quorum and examples of what constitutes a deliberation during a site visit.
He offered the “cautionary tale” of a five-person board, in which two members meet privately to plot strategy. Such a meeting, according to the Attorney General, does not require public posting. But, if that two-person group meets repeatedly, the Attorney General could determine it is actually a subcommittee (requiring public posting.)
Monday night’s training was posted as a public meeting, but that was not required according to Talerman, providing members of the same board did not huddle and discuss board business.
Without posting, the Zoning Board of Appeals can attend the Planning Board meeting to listen to the Planning Board discuss a zoning bylaw, but if ZBA quorum present and its meeting is not posted, the ZBA may not discuss what could come before its members for that would constitute deliberation.
Town Meeting, said Talerman, does not require public advertising, but an informational, pre-meeting does.
In cautioning against jumping off place-holder agenda items (old business, for instance) into a discussion. Talerman reminded the attendees that the agenda exists for the sake of the public, not themselves, and that the proper action is to identify the subject worthy of discussion and agree to place it on the agenda for that board’s next meeting.
Attendees learned about how to deal with emergencies, amended agendas and the like.
“It’s a chair’s world,” said Talerman, emphasizing that agendas fall under the control of the chairperson, who should strive to ensure public access to any discussions.
Where it concerns the public, Talerman said the right to record a meeting does not give the media, for instance, the license to disrupt proceedings. He gave two examples, one of a camera standing on a tripod at close proximity, shining its bright light directly on the speaker. In the other case, a stenographer, who understandably wanted a complete record of a meeting, interrupted to request participant talk slower and not talk over one another.
There is also an important distinction between the public’s right to comment during a public hearing and at a public meeting, the latter requiring permission from the chairperson.
“When you give the public the right to speak, you’re really going to have to allow some counterpoint,” said Talerman. The key is making sure that public comment sticks to the agenda item.
Open Forum, he said, opens the door “wide open” under the U.S. Constitution. Comment cannot be hateful or disruptive, “but they can be downright rude, and you can’t stop them,” said Talerman, who advises against granting people the right to take potshots at board members. “Put some guardrails up. … There is somewhat of an erosion over the last decade in public forum in terms of civility.”
School committees in the Tri-Town, for example, confine Public Comment to 15 total minutes, each speaker being given three minutes.
Confining himself to approximately 55 minutes, Talerman only briefly touched on ethics, recommending board members concerned about a possible conflict of interest to seek guidance before attending the meeting.
“Generally speaking, we are available before the Open Meeting Law mistake,” said Talerman, encouraging board members and chairpersons to reach out to Town Administrator Glenn Cannon. “Town Counsel will answer on the spot. Most problems can be easily avoided.”
In a short meeting that preceded the 6:00 pm agenda, the Rochester Select Board voted and signed a contract with Special Town Counsel (Miyares and Harrington, LLP) to represent the town in matters associated with 19 County Road. This was done upon advice that regular Town Counsel has a potential conflict of interest with the property.
The next regular meeting of the Rochester Select Board is anticipated on Monday, April 17, at 6:00 pm.
Rochester Select Board
By Mick Colageo