Since there seems to be a little misunderstanding of what remote participation is and how it is used, I thought I would post this. There is also a little misunderstanding in how public business may be done these days and that will come in another post, as I do not wish to confuse anyone. Clearly, there is no participation through e-mail, but as you will observe in my next blog post, email is a most accepted way to do business, even for a selectmen to conduct normal required duties and responsibilities.
Jeffrey Bennett
(1) Preamble. Remote participation may be permitted subject
to the following procedures and restrictions. However, the Attorney General
strongly encourages members of public bodies to physically attend meetings
whenever possible. By promulgating these regulations, the Attorney General
hopes to promote greater participation in government. Members of public bodies
have a responsibility to ensure that remote participation in meetings is not
used in a way that would defeat the purposes of the Open Meeting Law, namely
promoting transparency with regard to deliberations and decisions on which
public policy is based.
(2) Adoption of Remote Participation. Remote participation
in meetings of public bodies is not permitted unless the practice has been
adopted as follows:
(a) Local Public Bodies. The Chief Executive Officer, as
defined in M.G.L. c. 4, sec. 7, must authorize or, by a simple majority,
vote to allow remote participation in accordance with the requirements of these
regulations, with that authorization or vote applying to all subsequent
meetings of all local public bodies in that municipality.
(b) Regional or District Public Bodies. The regional or
district public body must, by a simple majority, vote to allow remote
participation in accordance with the requirements of these regulations, with
that vote applying to all subsequent meetings of that public body and its
committees.
(c) Regional School Districts. The regional school district
committee must, by a simple majority, vote to allow remote participation in
accordance with the requirements of these regulations, with that vote applying
to all subsequent meetings of that public body and its committees.
(d) County Public Bodies. The county commissioners must, by
a simple majority, vote to allow remote participation in accordance with the
requirements of these regulations, with that vote applying to all subsequent
meetings of all county public bodies in that county.
(e) State Public Bodies. The state public body must, by a
simple majority, vote to allow remote participation in accordance with the
requirements of these regulations, with that vote applying to all subsequent
meetings of that public body and its committees.
(f) Retirement Boards. A retirement board created pursuant
to M.G.L. c. 32, sec. 20 or M.G.L. c. 34B, § 19 must, by a simple majority, vote to allow
remote participation in accordance with the requirements of these regulations,
with that vote applying to all subsequent meetings of that public body and its
committees.
(3) Revocation of Remote Participation. Any person or
entity with the authority to adopt remote participation pursuant to 940 CMR
29.10(2) may revoke that adoption in the same manner.
(4) Minimum Requirements for Remote Participation.
(a) Members of a public body who participate remotely and all
persons present at the meeting location shall be clearly audible to each other;
(b) A quorum of the body, including the chair or, in the chair’s
absence, the person authorized to chair the meeting, shall be physically
present at the meeting location, as required by M.G.L. c. 30A, sec 20(d);
(c) Members of public bodies who participate remotely may vote and
shall not be deemed absent for the purposes of M.G.L. c. 39, sec. 23D.
(5) Permissible Reasons for Remote Participation. If remote
participation has been adopted in accordance with 940 CMR 29.10(2), a member of
a public body shall be permitted to participate remotely in a meeting, in
accordance with the procedures described in 940 CMR 29.10(7), if the chair or,
in the chair’s absence, the person chairing the meeting, determines that one or
more of the following factors makes the member’s physical attendance
unreasonably difficult:
(a) Personal illness;
(b) Personal disability;
(c) Emergency;
(d) Military service; or
(e) Geographic distance.
(6) Technology.
(a) The following media are acceptable methods for remote
participation. Remote participation by any other means is not permitted.
Accommodations shall be made for any public body member who requires TTY
service, video relay service, or other form of adaptive telecommunications.
(i) telephone, internet, or satellite enabled audio or video
conferencing;
(ii) any other technology that enables the remote participant and
all persons present at the meeting location to be clearly audible to one
another.
(b) When video technology is in use, the remote participant shall
be clearly visible to all persons present in the meeting location.
(c) The public body shall determine which of the acceptable
methods may be used by its members.
(d) The chair or, in the chair’s absence, the person chairing the
meeting, may decide how to address technical difficulties that arise as a
result of utilizing remote participation, but is encouraged, wherever possible,
to suspend discussion while reasonable efforts are made to correct any problem
that interferes with a remote participant’s ability to hear or be heard clearly
by all persons present at the meeting location. If technical difficulties
result in a remote participant being disconnected from the meeting, that fact
and the time at which the disconnection occurred shall be noted in the meeting
minutes.
(e) The amount and source of payment for any costs associated with
remote participation shall be determined by the applicable adopting entity
identified in 940 CMR 29.10(2).
(7) Procedures for Remote Participation.
(a) Any member of a public body who wishes to participate remotely
shall, as soon as reasonably possible prior to a meeting, notify the chair or,
in the chair’s absence, the person chairing the meeting, of his or her desire
to do so and the reason for and facts supporting his or her request.
(b) At the start of the meeting, the chair shall announce the name
of any member who will be participating remotely and the reason under 940 CMR
29.10(5) for his or her remote participation. This information shall also be
recorded in the meeting minutes.
(c) All votes taken during any meeting in which a member participates
remotely shall be by roll call vote.
(d) A member participating remotely may participate in an
executive session, but shall state at the start of any such session that no
other person is present and/or able to hear the discussion at the remote location,
unless presence of that person is approved by a simple majority vote of the
public body.
(e) When feasible, the chair or, in the chair’s absence, the
person chairing the meeting, shall distribute to remote participants, in
advance of the meeting, copies of any documents or exhibits that he or she
reasonably anticipates will be used during the meeting. If used during the
meeting, such documents shall be part of the official record of the meeting,
and shall be listed in the meeting minutes and retained in accordance with M.G.L. c. 30A, sec. 22.
(8) Further Restriction by Adopting Authority. These
regulations do not prohibit any person or entity with the authority to adopt
remote participation pursuant to 940 CMR 29.10(2) from enacting policies, laws,
rules or regulations that prohibit or further restrict the use of remote
participation by public bodies within that person or entity’s jurisdiction,
provided those policies, laws, rules or regulations do not violate state or
federal law.
(9) Remedy for Violation. If the Attorney General
determines, after investigation, that 940 CMR 29.10 has been violated, the
Attorney General may resolve the investigation by ordering the public body to
temporarily or permanently discontinue its use of remote participation.
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