[Massplanners] S2475

Thu Jun 17 11:09:11 EDT 2021

Richard,
The way I read the paragraph below, the highlighted section only pertains to those boards that "for reasons of economic hardship....etc."  In other words, it if is a public hearing, you MUST allow the public to participate - either via "in person" or via a virtual medium like Zoom.  So the directive stated below to post a full and complete transcript IF the public body was unable to provide an alternative means of public access - would not apply to public hearings.  If it was a public hearing you'd have to postpone until you can figure out a way to allow the public the participate.

"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 by-law requires allowance for active participation by members of the public, such as in the case of certain public hearings."

Katrina O'Leary, AICP
Middleton Town Planner
195 North Main Street     Middleton, MA   01949     PH: (978)777-8917
When responding, please be aware that the Massachusetts Secretary of State has determined that most email is public record and, therefore, cannot be kept confidential.

From: MassPlanners <massplanners-bounces at masscptc.org> On Behalf Of Richard McCarthy
Sent: Thursday, June 17, 2021 10:32 AM
To: Christian Brandt <christian.w.brandt.12 at gmail.com>; Harry LaCortiglia <hlacortiglia at comcast.net>
Cc: massplanners at masscptc.org
Subject: Re: [Massplanners] S2475

Christian and Harry,

Sounds like I'm missing it but I raised the question based on highlighted text in AG guidance.  40A Section 11 requires date, time and place for public hearings.  I will restate my question this way. If we are holding public hearings in person are we required to provide adequate alternative means?
Updated guidance on holding meetings pursuant to the Act Extending Certain COVID-19 Measures
Guidance Update - June 16, 2021
On June 16, 2021, Governor Baker signed into law An Act Extending Certain COVID-19 Measures Adopted During the State of Emergency.  This Act includes an extension, until April 1, 2022, of the remote meeting provisions of his March 12, 2020, Executive Order Suspending Certain Provisions of the Open Meeting Law. 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.
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 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 by-law 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.

Richard J. McCarthy, Jr.
Town Planner
1 Liberty Lane
Norfolk, MA 02056
508-440-2807
Office Hours- Monday through Thursday 9am to 6pm
Closed Fridays

Please be advised that the Secretary of State has determined that e-mail sent by or received by municipal employees is a public record.

From: MassPlanners [mailto:massplanners-bounces at masscptc.org<mailto:massplanners-bounces at masscptc.org>] On Behalf Of Christian Brandt
Sent: Thursday, June 17, 2021 10:22 AM
To: Harry LaCortiglia
Cc: massplanners at masscptc.org<mailto:massplanners at masscptc.org>
Subject: Re: [Massplanners] S2475

Good Morning All!

The AGO released this new guidance pertaining to virtual and hybrid meetings which you can find here: https://www.mass.gov/service-details/updated-guidance-on-holding-meetings-pursuant-to-the-act-extending-certain-covid-19-measures

I've pasted the first three paragraphs below:

This Act includes an extension, until April 1, 2022, of the remote meeting provisions of his March 12, 2020, Executive Order Suspending Certain Provisions of the Open Meeting Law. 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.

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.
So, based on that I think the very short answer is that you can continue to hold virtual-only meetings for the time being.

Best,

Christian Brandt, AICP
Planner and Community Engagement Specialist I
Metropolitan Area Planning Council
617-933-0796 | cbrandt at mapc.org<mailto:cbrandt at mapc.org>

Den tor. 17. jun. 2021 kl. 10.07 skrev Harry LaCortiglia <hlacortiglia at comcast.net<mailto:hlacortiglia at comcast.net>>:

Hi Richard,

Respectfully, you're wrong.

My read is that for Hearings, virtual is ok provided we allow for "Participation".

We've been conducting Hearings this way via Zoom for months now. The Public posting of the Meeting on the town website provides a link and a phone number for anyone who wishes to join us. We've conducted Hearings with participation of well over a hundred citizens. When Public comment time comes, folks hold their virtual hands up for recognition by the Chair. They are then un-muted and provide testimony or ask questions. (It's actually working far better than I had anticipated.)

This latest extension language from the legislature and signed by the Governor is below. (Please excuse the line numbers and the crude paste job...)

I do recognize that some communities may be using a Remote Participation Application that doesn't allow for the public to join them without a specific invitation. If that's the case, then you're up the creek... or more accurately, you're in the real world meeting room again. ;)

Good Luck,

H. LaCortiglia

Chairman Georgetown P.B>

138 SECTION 20. (a) For the purposes of this section, "adequate, alternative means of public
139 access" shall mean measures that provide transparency and permit timely and effective public
140 access to the deliberations of the public body, including, but not limited to, providing public
141 access through telephone, internet, satellite enabled audio or video conferencing or any other
142 technology that enables the public to clearly follow the proceedings of the public body while
143 those activities are occurring.
144 (b) Notwithstanding section 20 of chapter 30A of the General Laws or any general or
145 special law to the contrary, a public body, as defined in section 18 of said chapter 30A, shall not
146 be required to conduct its meetings in a public place that is open and physically accessible to the
147 public; provided, that if the public body does not conduct the meeting in a public place that is
148 open and physically accessible to the public, the public body shall ensure public access to the
149 deliberations of the public body for interested members of the public through adequate,
150 alternative means of public access. Where active, real-time participation by members of the
151 public is a specific requirement of a general or special law, regulation or a local ordinance or by-
152 law, pursuant to which the proceeding is conducted, any adequate, alternative means of public
153 access shall provide for such participation and shall be sufficient to meet such participation
154 requirement. A municipal public body that for reasons of economic hardship and despite best
155 efforts is unable to provide adequate, alternative means of public access that will enable the
156 public to follow the proceedings of the municipal public body as those activities are occurring in
157 real time may instead post on its municipal website a full and complete transcript, recording or
158 other comprehensive record of the proceedings as soon as practicable upon conclusion of the
159 proceedings. This paragraph shall not apply to proceedings that are conducted pursuant to a
160 general or special law, regulation or a local ordinance or by-law that requires allowance for
161 active participation by members of the public. A public body shall offer its selected adequate,
162 alternative means of public access to its proceedings without subscription, toll or similar charge
163 to the public.
164 (c) Notwithstanding subsection (d) of section 20 of chapter 30A of the General Laws or
165 any other general or special law to the contrary, a public body may allow remote participation by
166 all members in any meeting of the public body and a quorum of the body and the chair shall not
167 be required to be physically present at a specified meeting location.
168 (d) A public body that elects to conduct its proceedings under this section shall ensure
169 that any party entitled or required to appear before it shall be able to appear through remote
170 means, as if the party were a member of the public body and participating remotely as provided
171 in subsection (b).
172 (e) All other provisions of sections 18 to 25 of chapter 30A of the General Laws and the
173 attorney general's implementing regulations shall otherwise remain unchanged and fully
174 applicable to the activities of public bodies.
175 (f) Notwithstanding said section 20 of said chapter 30A, if this section does not take
176 effect until after June 15, 2021, a public body may provide for remote meetings as specified in
177 this section and any action taken thereof shall be ratified, validated and confirmed as if this
178 section had been in place.

On 6/17/2021 9:38 AM, Richard McCarthy wrote:
Good morning all,

Seeking clarity, if we have public hearings those have to be in person the extension only pertains to business that's not a public hearing.

I'm right or wrong?

Sincerely,

Richard J. McCarthy, Jr.
Town Planner
1 Liberty Lane
Norfolk, MA 02056
508-440-2807
Office Hours- Monday through Thursday 9am to 6pm
Closed Fridays

Please be advised that the Secretary of State has determined that e-mail sent by or received by municipal employees is a public record.

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Christian Brandt
90 School Street, Somerville, MA 02143
christian.w.brandt.12 at gmail.com<mailto:christian.w.brandt.12 at gmail.com>
208.596.2895

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