Division of Open Government issues guidance about open meeting law under new legislation

Following the enactment yesterday of a law extending certain special allowances from the COVID-19 state of emergency, the Attorney General’s Division of Open Government issued guidance as the new law relates to the state’s open meeting law.

Chapter 20 of the Acts of 2021 includes an extension, until April 1, 2022, of the remote meeting provisions of the governor’s March 12, 2020, Executive Order Suspending Certain Provisions of the Open Meeting Law. The Division of Open Government points out that, regarding public meetings, the new law has two major parts.

First, the new law allows public bodies to continue providing live “adequate, alternative means” of public access to the deliberations of the public body, instead of holding meetings in a public place that is open and physically accessible to the public.

“‘Adequate, alternative means’ may include, without limitation, providing public access through telephone, internet, or satellite enabled audio or video conferencing or any other technology that enables the public to clearly follow the proceedings of the public body in real time,” the guidance states.

Second, the new law authorizes all members of a public body to continue participating in meetings remotely.

“The Open Meeting Law’s requirement that a quorum of the body and the chair be physically present at the meeting location remains suspended,” the guidance states.

“The new law provides that a municipal public body that, for reasons of economic hardship and despite best efforts, is unable to provide alternative means of public access that will enable the public to follow the proceedings in real time, may instead post a full and complete transcript, recording, or other comprehensive record on its website as soon as practicable after the meeting.

“In light of the various free and low-cost technologies that could be used to provide the public with real time access, the Division of Open Government strongly recommends that a municipal public body consult with our office before determining that it is unable to provide the public with real time access to a meeting.

“Furthermore, this provision is not available for meetings when another general or special law, regulation or a local ordinance or bylaw requires allowance for active participation by members of the public, such as in the case of certain public hearings.”

All other provisions of the Open Meeting Law and regulations, such as the requirements regarding posting notice of meetings and creating and maintaining accurate meeting minutes, remain in effect.

Public bodies are reminded that notice of all meetings must be posted at least 48 hours in advance, not including weekends and holidays, and the meeting notice must clearly specify how the public may access the meeting, whether in-person, remote or both.

Finally, the Division of Open Government notes that, due to a typographical error in the final draft of the legislation, three paragraphs in Section 20(b) were compressed into one paragraph.

“Based on the legislative history of the new law and the Legislature’s clearly-demonstrated intent, the Attorney General interprets the sentence ‘This paragraph shall not apply to proceedings that are conducted pursuant to a general or special law, regulation or a local ordinance or by-law that requires allowance for active participation by members of the public’ as only applying to the economic hardship exception in the prior sentence, not to the entire paragraph of subsection (b).”

• View the complete guidance on the Division of Open Government website