Introduction

 

The purpose of this handbook is to assist the members of appointed boards, committees, and commissions to easily understand the variety of laws, procedures and traditions in participating in municipal government.  This handbook blends the directions and requirements that are found in state and local laws, town charter and administrative directives.  Throughout this handbook the term “Town board” applies to every board, committee, commission, or subcommittee that is represented as a governing body.

 

 

 

Table of Contents

I 1

Table of Contents.. 2

Town Board Membership.. 4

Absences Without Informing The Chair.. 4

Alternate Board Member.. 5

Compensation.. 5

Ineligible for Membership. 5

Reappointment.. 6

Resignation.. 6

Term Limits. 6

Termination.. 6

Vacancy.. 7

Officers.. 7

Election of Officers. 7

Chair.. 7

Vice-Chair.. 8

Clerk.. 8

Rotating  Clerk.. 8

Paid Secretary.. 8

Pre-Meeting Requirements.. 8

Posting Public Meeting Notice & Reserving Meeting Room Space. 8

Available Meeting Rooms. 9

Judge Welsh Hearing, Room Occupancy Limit: 82. 9

Conducting A Meeting.. 10

Open Meeting Law... 10

Executive Session.. 10

Minutes and Records of Town Boards   M.G.L. c.39, §23B. 11

Adoption of Rules & Regulations. 12

Tape Recording by Observers. 12

Voting.. 12

Calculation of Majority Vote   (K&P March 18, 1996) 12

Quorum... 13

Rule of Necessity (K&P June 1993) 13

Hearings.. 13

Adjudicatory Hearing.. 13

Public Hearing.. 13

Reports.. 15

Official Files & Records.. 15

Records of Doings and Accounts. 15

Budgeting & Procurement.. 18

Budgeting.. 18

Procurement.. 19

Disbursements. 19

Support Services.. 19

Parking.. 19

Photocopying.. 19

Postage. 19

Staff Support.. 19

Town Counsel (TM Memo 9-18-1992) 20

Conflicts-of-Interest.. 20

Obtaining Legal Advice. 20

Filing a Complaint.. 20

Conflict-of-Interest Disclosure   (Admin Dir 97-3) 20

State Ethics Commissions. 22

Available Bulletins. 22

Definitions.. 23

Deliberation: 23

Emergency: 23

Executive session: 23

Governmental body: 23

Meeting: 23

Quorum: 24

Town employee: 24

Town board: 24

Town Authority: 24

Description of Town Boards.. 25

Appendix A.. 26

Municipal Resources. 26

Available From The Town Clerk’s Office. 26

Appendix B.. 27

Massachusetts Open Meeting Law... 27

Appendix C.. 28

Massachusetts Public Record Law... 28

Appendix D.. 29

Mullin v. Planning Board of Brewster.. 29

Appendix E. 30

MGL C. 39, §23D Town Board quorums at Adjudicatory Hearings. 30

Appendix F. 32

Application of the Public Records Law and the Open Meeting Law to electronic Mail and Voice Mail Communications. 32


 

Town Board Membership

 

To participate on a Town board within the Town of Provincetown an application needs to be filed with the Town Clerk.  The applicant must be a registered voter within the Town of Provincetown (c.3-4-1).  The Town Clerk will forward the application to the appropriate appointing authority.  Depending upon the Town board and the length of time that a position is vacant, the appointing authority may be the Board of Selectmen, Town Manager, Town Moderator or the board.  The Town Clerk’s office maintains a monthly directory of which appointing authority is empowered to appoint members to each Town board.

 

Absences Without Informing The Chair

A member or alternate member of any Town board who is absent from three consecutive meetings without informing the Chair or his/her designee, shall automatically cease to be a member of the board. (c.3-1-3)   The Chair of a Town board who is absent from three consecutive meetings without informing the appointing  authority and without appointing an Acting Chair for such  meetings shall automatically cease to be a member of such board. (c.3-1-4)

 

Procedure:

1.   The fact that a member has been absent from three consecutive meetings without informing the Chair needs to be reflected in the minutes for each meeting.

 

2.   The Chair should notify the Town Clerk of a member missing three consecutive meetings without informing the Chair.

 

3.   Once the minutes are  filed with the Town Clerk’s office, the Town Clerk will prepare and mail a letter notifying the member that he/she has cease to be a member of this board.

 

Appointment Procedures (AD.90-2)

Once the decision is made to appoint a member to a Town board, the Appointing Authority shall be responsible to:

1.   File a completed "Notice of Appointment" form with the Town Clerk for each appointment made to a Town board.(GBL.5-4-1)

 

2.   Notify the appointee of his/her appointment, either in writing, in person, or by telephone; and to inform him/her of the need first to be sworn to the faithful performance of their duties, before he/she may sit as a member or alternate member of a Town board.

 

If an Appointee accepts the offer to participate on a Town board, the appointee shall be responsible to:

1.   Appear at the office of the Town Clerk as soon as practicable after receiving notification of appointment to a Town board; sign the notice accepting such appointment; and be sworn to the faithful performance of his/her duties.(GBL5-4-2)

 

2.   Accept the appointment within thirty (30) days of the date the appointment was made or forfeit the appointment and have the appointing authority consider the appointment to be vacant as of that time.

 

The Town Clerk shall be responsible to:

1.   Maintain a file of all notices of appointment as a public record available for inspection.

 

2.   Maintain, publish, and periodically update a roster of the membership of all Town boards, including the following information for each board member: (a) name; (b) voting address; (c) mailing address, if different; (d) home telephone number; and (e) date of term expiration.

 

3.   Notify the appointing authority in writing if the appointee has not been sworn to his/her official duties by thirty (30) days following the filing of the Notice of Appointment.

 

4.   Notify the appointing authority in writing of the scheduled expiration of any term of office for a Town board position to be filled by such appointing authority, such notice to be given at least thirty (30) days prior to the scheduled date of such term's expiration.

 

Alternate Board Member

If a member of a Town board is absent or excuses him/herself from voting on a certain issue, an alternate shall assume the powers of a member.  If two alternates are present but only one is needed, the one shall be selected by lot. (c.3-2-3)  The selected alternate should sit on a given matter until its conclusion.

 

When a  seat of  a regular member becomes available the alternate cannot automatically assume that position.  If an alternate member desires to become a regular member he/she must make application to the appointing authority. 

 

Compensation

A member of a Town board shall be a volunteer and shall not receive compensation for service on the board but may be reimbursed for vouchered expenses pertaining to Town business. (c.3-4-5)   In addition, a member of a Town board shall not be paid for any work done for the Town, or be allowed to bid on any Town contract for a job, which is in any way related to the board on which he/she serves or on which he/she has served within the past year. (c.3-4-6)    Also, a member of the Board of Selectmen, the Board of Assessors, the Finance Committee, the Personnel Board, or the School Committee shall not receive any payment from the Town but may be reimbursed for vouchered expenses pertaining to town business. (c.3-4-7)

 

Ineligible for Membership

Individuals who are not registered to vote within the Town of Provincetown are ineligible to participate on Town boards.  A paid employee of the Town  shall not be a member of a Town board which is in any way related to his/her employment. (c.3-4-2). Also, any paid Town employee with supervisory duties shall not be a member of a Town board which is in any way related to his/her employment during his/her term of office or for at least one year after leaving office. (c.3-4-3)

 

In regard to participation on a regulatory board, no person shall serve simultaneously as a member/alternate member of more than one of the following  Town boards: Conservation Commission, Board of Health, Historical Commission, Licensing Board, Planning Board or Zoning Board of Appeals. (c.3-4-9)

Reappointment

Reappointments are not automatically issued.  A board member must reapply at the end of his/her term if he/she desires and is eligible to serve again.  A board member can continue to serve after the expiration date of their appointment, until their successors are chosen and qualified, unless the charter provides otherwise.  One such exception would be the three consecutive term limit maximum listed below.

 

Resignation

A board member who is no longer able to serve should resign promptly so that the vacancy may be filled.  A written resignation needs to be submitted to the chair of the board and to the appointing authority.  The resignation letter shall then be filed with the Town Clerk.

 

Term Limits

A member of a Town board shall not serve on that Town board for more than three consecutive terms.  Service to complete the term of another member shall constitute service for one term if the balance of said term being completed is more than fifty percent of the original term. A person who has been prohibited from serving on a Town board by this section may be reelected or reappointed to that board after two years have elapsed from the ending date of their previous service. (c.3-4-4)  However, this clause does not prohibit  an individual from serving or holding office on any other Town board.  In computing the term limits, any service on a Town board prior to July 1, 1990 is not to be considered. (c.11-2-8)

 

Termination

Any non‑elected member of a Town board may be removed by the appointing authority for good cause, in accordance with the following:

 

Procedure:

1.   A written notice of the intent to remove and a statement of the reasons therefor shall be delivered by registered mail to the last known address of the member sought to be removed.

 

2.   Within fourteen days of delivery of the notice, the member may request a public hearing before the appointing authority.

 

3.   If the member fails to request a public hearing, then he/she shall be discharged forthwith.

 

4.   Such member may be represented by counsel at the hearing, and shall be entitled to present evidence, to call witnesses, and to examine any witness appearing at such hearing.

 

5.   Within ten days after the public hearing is adjourned, the appointing authority may, by a majority vote, remove the member for good cause.

 

6.   A notice of a decision to remove the member and the reasons therefor shall be delivered by registered mail to the last known address of the member.

 

7.   Within fourteen days of delivery of such notice, such member may request a public hearing before the Personnel Board.

 

8.   If such member fails to request a public hearing, then he/she shall be discharged forthwith.

 

9.   Such member may be represented by counsel at the hearing, and shall be entitled to present evidence, to call witnesses, and to examine any witness appearing at such hearing.

 

10. Within ten days after the public hearing is adjourned, the personnel board may, by a two‑thirds

       vote, reinstate such member.(c.10-2-1)

 

Nothing is this section shall be construed as granting a right to such a hearing when a member who has been appointed to a fixed term is not reappointed when his or her original term expires. (c.10-2-3)

 

Vacancy

The Chair of any Town board shall notify the appointing authority in writing when a vacancy occurs on the Town board.  The appointing authority shall fill the vacancy within sixty days of receipt of the notice of vacancy.  In the event of the failure of the appointing authority to fill the vacancy within the allowed time, the Town Moderator shall then be charged with filling the vacancy within sixty days.  In the event of the failure of the Moderator to fill the vacancy within the allowed time, the Town board shall fill the vacancy.

(c. 3-1-2)

Officers

 

Please Note:     The duties that are described for officers originate from general practice.  A Town board, through a majority  vote of its members, can further define and/or redefine these responsibilities.  Additionally, Robert’s Rules of Order  also defines the responsibilities of each Town board officer.

 

Election of Officers

All Town boards shall annually elect a Chair and other necessary officers. (c.3-2-4)   Each  Town board has the discretion to elect other officers.

 

Chair

The Chair presides at all meetings, decides questions of order, calls special meetings, and signs official documents that require the Chair’s signature.  The Chair has the same rights as other members to offer  resolutions, make or second motions, discuss questions, and vote thereon.  The Chair is also responsible for  ensuring that the provisions of the open meeting law are met.  A Town board, through a vote of the majority, may extend additional authority to the Chair.

 

Vice-Chair

The Vice-Chair acts for the Chair whenever the latter is absent from meetings and performs other necessary duties.

 

 

Clerk

The Clerk is responsible for the following duties of the Town board:

1.   Take and prepare the minutes for the Town board.

 

2.   Prepare agendas and any other materials.  The tentative agenda for the next meeting and minutes of the previous meeting should be prepared and available to each board member prior to each meeting.

 

3.   Schedule meeting location through the Town Clerk’s office.

 

4.   Where applicable, process the accounts payable and turnovers for the board to the Accountant’s Office.

 

Rotating  Clerk

A Town board may choose to have a rotating Clerk.  The responsibilities of the rotating Clerk are identical to those of a Clerk.  At the beginning of the next meeting, the rotating Clerk should request that the Chair designate a successor.  If one is not designated, the previously appointed Clerk continues in that capacity.

 

Paid Secretary

If a Town board determines that its workload or meeting schedule is such that the Clerk’s responsibilities will have an adverse impact on the board’s operation, the board may submit a budget request for an on-call secretary through the standard annual budget process.  If immediate assistance is required, a written request should be made to the Town Manager that outlines the amount, type and frequency of need.

 

Pre-Meeting Requirements

Unless otherwise stated, the requirements and procedures identified in this handbook apply to all types of meetings including: special meetings, workshops, emergency meetings, sub-committee meetings, and public hearings.  A public meeting occurs at any time a quorum of the Town board (or subcommittee) members get together to discuss or consider any public business or policy over which the board has some jurisdiction or advisory power.

 

Posting Public Meeting Notice & Reserving Meeting Room Space

At least forty‑eight hours before any meeting of a Town board is to be held, an agenda containing all items which are scheduled to come before the Town board at the meeting shall be posted on the Town bulletin board.  (c.3-2-1)

It shall be the responsibility of the person calling a meeting of a Town board to first ascertain from the applicable building supervisor the specific availability of any meeting space listed on the inventory for a particular day and time. (BOS Administrative Directive)

 

The Town Clerk shall maintain a log book, to provide a record of which accessible meeting spaces are assigned to which Town boards for particular periods of time.  Such log book shall be available for public inspection, and may be used by Town board Chair in selecting times and locations for their board meetings.

 

For each meeting of a Town board, the Chair or other authorized member of such board shall submit to the Town Clerk:

(1)  a completed Public Meeting Notice form provided by the Town requesting assignment of a particular meeting space for a particular period of time, including the expected duration of the meeting; and

 

(2)  an agenda containing all items which are scheduled to come before the Town board at a meeting for such meeting to be in accordance with Charter section 3-2-1.  Such form and agenda shall be submitted to the Town Clerk at the Town board's earliest convenience, but not later than forty-eight hours prior to the time the meeting is scheduled to convene.

 

Upon receipt of the completed Public Meeting Notice form, the Town Clerk shall assign the meeting space requested for the period of time requested unless such space has already been assigned; whereupon the Town board shall request another location or period of time.

 

The Town Clerk shall promptly post on the Town bulletin board at Town Hall a copy of the approved Public Meeting Notice form together with the agenda.  The Town Clerk shall also provide a copy of the Public Meeting Notice form to the appropriate building supervisor.

 

Available Meeting Rooms

Meetings must be held in approved meeting rooms within Town-owned buildings. This provision shall not prohibit on-site inspection when necessary for the proper conduct of Town business. (GBL.5-6) All meeting rooms must meet the standards for  barrier-free access.

 

Provincetown Town Hall, 260 Commercial Street, Contact: Town Clerk 487-7013

Judge Welsh Hearing, Room Occupancy Limit: 82

Caucus Hall, Room Occupancy Limit: 42

Meeting Room A Occupancy Limit: 14

            Auditorium, Room Occupancy: 708

     

Provincetown Public Library, 44 Bradford Street: Contact: Recreation Director 487-7097

Provincetown Community Center, 356 Commercial Street: Contact: Library Director 487-7095

Grace Gouveia, 26 Alden Street, Contact: Council on Aging 487-7080

Dining Room, Room Occupancy Limit: 30

1st Floor Senior Meeting Room, Room Occupancy Limit: 49

2nd Floor Senior Meeting Room, Room Occupancy Limit: 49

Water Department Conference Room, Room Occupancy Limit: 12

 

 

Conducting A Meeting

 

In all procedural matters, meetings of Town boards shall follow the latest revised edition of Robert's Rules of Order, except as provided by the adoption of rules and regulations governing the conduct of adjudicatory hearings. (c.3-3-1)

 

Open Meeting Law

The Massachusetts Open Meeting Law requires that all meetings of elected or appointed boards, committees or subcommittees be open to the public except for the nine specific situations (listed below) where Executive Session is required.  The law does not apply to chance meetings or social occasions; however, such meeting cannot be used to circumvent the requirement of discussing and deliberating at public meetings.  The law does not apply to administrative meetings or to advise on administrative matters.  Please refer to Appendix B for a complete reading of the Open Meeting Law.

 

Basic Requirements:

All meetings of a governmental body shall be open to the public and any person shall be permitted to attend any meeting except under those circumstances listed below. (MGL.c39§23B)     

 

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 the circumstances listed below.(MGL.c39§23B)   

 

No votes taken in open session shall be by secret ballot. (MGL.c39§23B)

 

Except in emergency, a notice of every meeting of any governmental body shall be filed with the Town Clerk at least 48 hours, including Saturdays but not Sundays and legal holidays, prior to such meetings.

 

The notice shall be printed in easily readable type and shall contain the date, time, and place of such meeting.

 

Executive Session

Executive Session  is a meeting that is closed to the public for one of the nine purposes listed below. 

The following required procedures must be followed:

1.   The Town board shall first convene in an open session for which an agenda had been posted.

 

2.   A motion is made to enter into an Executive Session and the Chair has cited the purpose for an Executive Session.

3.   A majority of 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.

 

4.     The Chair states before the Executive Session whether or not the governmental body will reconvene after the Executive Session. (MGL.c39§23B)

 

All votes taken in Executive Sessions shall be recorded roll call votes and shall become a part of the record of said executive session.

 

Reasons for Convening Executive Session:  (Please refer to Appendix B for a complete description.)

1.     To discuss the reputation, character, physical condition or mental health – rather than the professional competence – of an individual.

 

2.     To consider the discipline or dismissal of, or to hear complaints or charges brought against, a public officer, employee, staff member, or individual.

 

3.     To discuss strategy with respect to collective bargaining or litigation if an open meeting may have a detrimental effect on the government’s bargaining or litigating position.  Also, to conduct strategy sessions in preparation for negotiations with non-union personnel; to actually conduct collective bargaining and contract negotiations with non-union 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, taking, lease or value of real property, if such discussion may have a detrimental effect on the negotiating position of the governmental body.

 

7.     To comply with the provisions of any general or special law or federal grant-in-aid requirements (generally, privacy).

 

8.     To consider and interview applicants for employment by a preliminary screening committee or a subcommittee appointed by a Town board 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 and confer with a mediator regarding litigation or decision.

 

 

Minutes and Records of Town Boards   M.G.L. c.39, §23B

Every Town board is required to maintain accurate records of its meetings referred to as “minutes”.  All “original copies” minutes and related records must be promptly filed with the Town Clerk.

 

Each set of minutes must include the following:

q     The date and time of the meeting.

q     The location of the meeting.

q     The names of members who are present.

q     The name(s) of members who are absent but had informed the Chair.

q     The name(s) of members who are absent but had not informed the Chair.

q     An “exact record” of motions, votes and official actions taken.

q     The subjects that were discussed.

 

 

Minutes may also include or have attached to:

q     Assignments.

q     Names of additional participants of the meeting.

q     Supporting materials, letters, requests and reports.

q     Summaries of discussion (recommended only if they are helpful in understanding decisions or provide factual information that may be useful to the board).

 

The minutes need not be a verbatim transcript of all that was said at the meeting.  Many boards tape their meetings and prepare written minutes at a later date.  Tape recordings may not be used as a permanent record of meetings.  Written minutes must be prepared with the information outlined above. Until the minutes are prepared and approved on paper the tapes are the public record of the proceedings and must be available for public inspection in the Town Clerk’s office.  In addition, until the minutes are approved, the notes of the Clerk and the draft of the minutes are public records, and must be made available for inspection and copying if requested.

 

Adoption of Rules & Regulations

A copy of all rules and regulations adopted by a Town board shall be filed in the Office of the Town Clerk and made available for review by any person who requests such information.(c.3-3-3)

 

Tape Recording by Observers

A meeting of a Town board 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. (MGL.c.39§23B)

 

Voting

 

Calculation of Majority Vote   (K&P March 18, 1996)

The general common law rule is that, in the absence of an express statute or regulation to the contrary, a simple majority vote (i.e., one vote more than fifty percent) will prevail.  When a quorum is present, a majority of that quorum has the right to take action which is within the power of the entire body.

 

A requisite majority vote is calculated based on the number of members present, not on the entire membership, present or absent.  When a statute states that a valid vote requires “a majority of the Board,” a municipality should not read this as requiring that a majority of the full membership must vote in favor.  Instead, as long as a quorum is present, the calculation of a “majority” should be based on only those members present.  Absent members of the board do not affect the vote.

 

Example using a five member board:     If three members are present (which is a quorum), then a 2-1 vote is a valid, majority vote of the board.

Abstentions are not counted.      Given the presence of a quorum, a majority of the votes actually cast is sufficient.  It is not essential that at least a quorum should actually vote.  Nor is it required that the action receive the favorable votes of a majority of all members present.  A board member who is present for the vote may abstain from voting and not affect the outcome.

 

Tie Vote - A tie vote of a motion is to defeat the motion since an approved vote requires a majority vote, one vote more than fifty percent.

 

Quorum

A quorum for a meeting of any Town board shall be a majority of the maximum complement of the board.  No action of a Town board shall be valid and binding unless taken or ratified by an affirmative vote of the majority of the members attending the meeting, unless another quantum of vote is allowed or required by the Massachusetts General Laws. (c.3-2-2)   If a member of a Town board is absent or excuses him/herself from voting on a certain issue, an alternate shall assume the powers of a member.  If two alternates are present but only one is needed, the one shall be selected by lot. (c.3-2-3)

 

Rule of Necessity  (K&P June 1993)

Under certain circumstances, the members of the board may invoke the “Rule of Necessity” to allow disqualified members to act.  The Rule of Necessity provides that a board may invoke  this rule for a  member(s) who would be disqualified from participating on a specific Town board action, (e.g.  because of a conflict of interest) to participate because of a lack of a quorum needed to take action.

 

The Rule of Necessity may be invoked should the following three conditions exist:

a.   one or more members of a town board or commission are disqualified from acting on a matter before the board due to a conflict of interest, and

 

b.   thereby the disqualified member(s) would deprive the board of the number of members required to take an affirmative vote; and

 

c.   that there is no other board empowered to hear the matter.

 

Hearings

 

Adjudicatory Hearing

The Board of Selectmen, the Charter Enforcement Commission, the Conservation Commission, the Board of Health, the Licensing Board, the Personnel Board, the Planning Board, and the Zoning Board of Appeals shall adopt rules and regulations governing the conduct of adjudicatory hearings.  An adjudicatory hearing is a hearing in which the legal rights, duties or privileges of specifically named persons are required by law to be determined after an opportunity for a hearing. (c.3-3-2)

 

Each member who participates in the decision of an adjudicatory hearing must have heard all of the evidence first hand, reading a transcript of the hearing or viewing a tape later is not sufficient (See Appendix D: Mullin V. Planning Board of Brewster)

 

Public Hearing

A Public Hearing is a process of collecting information that pertains to the pros and cons of an idea, motion, or proposed action from individuals.  It is a tradition that Public Hearings provide each individual who desires to speak an opportunity to voice his/her opinions.  It is important that the Chair of the Town board state clearly how the public hearing will be conducted and stay with the described process.  Also, no Town board shall accept as testimony, evidence or attestation, nor cause to be read into the public record or minutes of any meeting, any correspondence in which an author fails to self-identify him/herself or list his/her place of residence. This is not to exclude the right of the author to have the board withhold the name and/or address upon request. (GBL.5-13)

 

Public Hearings on proposed rules and regulations. 

Unless otherwise specified by the General Laws, the Town Charter or a By‑Law, any new or revised rule or regulation proposed by a Town Authority shall not be put into effect until the following actions have been taken:

a.   Notification of Public Hearing.  A Public Hearing shall have been held.  At least fourteen (14) days in advance of the hearing, the text of proposed new or revised rule(s) or regulation(s) and the date, time and place of the Hearing shall have been published in a newspaper of general circulation in the Town and posted on the bulletin board in Town Hall; and

 

b.   Determination and advertisement of final text.  The Town Authority shall have determined the final text of the new or revised rule or regulation, shall have recorded the fact of such determination, and shall have published the text and effective date thereof in a newspaper of general circulation in the Town. (GBL.5-12)

 

Suggested Public Hearing Procedures

1.   The Chair will open the hearing by identifying the purpose of the Hearing, reading the Hearing notice aloud, and explaining the rules to be followed during the Hearing.

 

2.   If testimony at the hearing must be given under oath, a five-minute recess will be taken to permit speakers to register with the Clerk of the town board.  When the Hearing is reconvened, the Chair will render the oath in front of all present.

 

3.   Hearing Format:

a.   Arguments:       Proponents

Questions:              Members of the Town Board

Questions:              Public

b.   Arguments:       Opponents

Questions:              Members of the Town Board

Questions:              Public

c.      Recess:

d.     Proponents:            Concluding Statements/Rebuttal

e.      Opponents:             Concluding Statements/Rebuttal

 

4.   No questions will be permitted until after the speaker has finished the presentation.  Questions will be accepted first from board members and then from the public.  All public questions will be addressed through the Chair.  Questioners will identify themselves to the Chair, state their questions, and specify to whom they are addressed.  Any disagreement with answers is restricted to rebuttal statements.

 

5.   At the completion of arguments, citizens may record themselves in agreement with the speaking side without making another presentation.  (This provision is designed to reduce repetition.)

Reports

Board reports.  All Town Boards shall report as directed by the Town.  If no report is made within one year after its appointment, the board shall be discharged unless the Town shall have granted an extension of time. (GBL.5-9)

 

Annual reports and recommendations.  Each Town Board shall submit to the Board of Selectmen, an annual report of activities, together with any recommendation relative to those activities, for inclusion in the Annual Reports of the Town.  The report shall be submitted on or before a date specified by the Board of Selectmen.(GBL.5-10)

 

Official Files & Records

 

Records of Doings and Accounts 

      Records of the official activities and accounts of all Town boards shall be kept in the manner and form as shall be prescribed by the General Laws, the Town Charter or a By‑Law, or, as may be authorized thereby, the Board of Selectmen or the Town Manager.

 

a.   Records to be open to public inspection.  Records shall be open to public inspection under the supervision of the custodian of the records.

 

b.   Security of records.  Records shall be kept secure in Town Hall or other authorized locations and shall not be removed without proper authorization and custodianship. (GBL.5-8)

 

Absolutely no official files are to leave Town Hall.  Town staff members who become aware of files leaving the building are directed to notify the Town Manager or Assistant Town Manager.  (BOS directive August 1997) . Town Boards should arrange with the Town Clerk for on-site storage of their files.

 

The Massachusetts Public Records Law (MGL.C4§7(26)) provides right of access to public records, broadly defined to include all documentary materials except eleven specific exemptions such as personnel and medical files, proposals and bids, and appraisals of property.  The minutes, informational data, memoranda and circulating materials of any town board are mostly all public information.   Appendix B of this handbook contains the text of the Massachusetts Public Record Law.  The Town board should consult with the Town Clerk if questions arise or a request made under the freedom of information occurs.

 

Every person having custody of any public record shall at reasonable times and without unreasonable delay, permit the requested record to be inspected and examined by any person.  A custodian of a public record shall within 10 days following receipt of a request for inspection or a copy of a public record shall comply with such request.  Please know that the law requires acting on a request within a reasonable time  within a maximum of 10 days.

 

To meet the intent of the Public Records Law the following set of protocols are designed to guide Town Boards and Departments in providing public access to municipal records.  The Town Clerk is available to answer any questions regarding the Public Records Law.

1.  Public Records of Town Boards

1.1.   The individual seeking a public record relating to Town Boards shall make the request to the Town Clerk.

1.2.   The Town Clerk will identify the custodian of the record being requested.

1.2.1.      If the “public record”  has not been filed with the Town Clerk’s office, the Town Clerk will forward the request to the appropriate Town Board.  The Chair of the Town Board will be contacted first. If there is no response within 24 hours then the Town Clerk shall contact the Vice Chair.  Again, if there is no response within 24 hours the Town Clerk shall contact the Secretary of the Town Board.

1.2.2.      If the public record is filed with the Town Clerk’s office, the Town Clerk will then be the responsible custodian.

1.3.   The custodian of the public record shall make arrangements with the requester for the opportunity to inspect and/or receive copies of the requested materials as described in Section 4 of this memo.

 

2.      “Active” Public Records of Town Departments

2.1.   The individual seeking a public record relating to a Town Department shall make a request to the appropriate custodian as identified in 2.3.

2.2.    The custodian of the public record shall make arrangements with the requester for the opportunity to inspect and/or receive copies of the requested materials as described in Section 4 of this memo.

2.3.   Custodian of Town Department’s Public Records:

Public Records Relating To:

Contact

Location

Telephone

Board of Selectmen

Secretary of the BOS

Town Hall, 260 Commercial St

487-7003

Town Manager

Town Manager

Town Hall, 260 Commercial St

487-7002

Department of Regulatory Mgmt

 

 

 

Licensing Records

Licensing Agent

Town Hall, 260 Commercial St

487-7020

Building Records

Building Commissioner

Town Hall, 260 Commercial St

487-7020

Health Department Records

Health Inspector

Town Hall, 260 Commercial St

487-7020

Department of Municipal Finance

 

 

 

Assessor

Principal Assessor

Town Hall, 260 Commercial St

487-7017

Accounting

Town Accountant

Town Hall, 260 Commercial St

487-7010

Treasurer

Dir. Of Municipal Finance

Town Hall, 260 Commercial St

487-7015

Human Services

 

 

 

Public Health & Counsel on Aging

Public Health/COA Director

Grace Gouveia, 26 Alden St

487-7080

Veterans Services

Veterans Agent

Grace Gouveia, 26 Alden St

487-7099

Recreation

Recreation Director

44 Bradford St

487-7097

Library

Library Director

356 Commercial St

487-7094

Provincetown Schools

 

 

 

Superintendent of Schools

Superintendent

Prince St

487-5000

Provincetown High School

Principal

12 Winslow St

487-5040

Veterans Memorial Elementary School

Principal

Mayflower Lane

487-5020

Public Safety

 

 

 

Police Department

Chief of Police

26 Shankpainter Rd

487-1212

Fire Department

Fire Chief

25 Shankpainter Rd

487-7023

Marine Department

Marine Superintendent

McMillan Pier

487-7030

Department of Public Works

 

 

 

Public Works

Dir. of Public Works

Grace Gouveia, 26 Alden St

487-7060

Water Department

Water Superintendent

Grace Gouveia, 26 Alden St

487-7064

Cemetery Department

Cemetery Superintendent

Grace Gouveia, 26 Alden St

487-7070

 

3.      “Inactive” Public Records

3.1.   An individual seeking a public record that is stored in the Municipal Archives or filed with the Town Clerk’s Office shall make a request to the Town Clerk.

 

3.2.   The Town Clerk shall make arrangements with the requester for the opportunity to inspect and/or receive copies of the requested materials as described in Section 4 of this memo.

 

4.      Requirements and Summary of the Public Records Law

4.1.   Access to Public Records: The Massachusetts Public Records Law provides that any person has an absolute right of access to public information.  This right of access includes the right to inspect, copy or have copies of records provided upon the payment of a reasonable fee.

 

4.2.   Public Records Defined: The Massachusetts General Laws broadly define “public records” to include all documentary materials or data, regardless of physical form or characteristics, which are made or received by any officer or employee of any Massachusetts governmental entity.  As a result, all photographs,  papers and electronic storage media of which a governmental officer and employee is the “custodian” constitute “public record”.    There are eleven narrowly construed exemptions to this broad definition of  “public record”, please review Section 4.5 Exemptions.

 

4.3.   Requesting a Public Record

Requests for public records may be made oral or written and may be made in person or through the mail, FAX, E-mail, and other means of communication.  A requester is not required to specifically identify a particular record.  Any request that provides the custodian with a reasonable description of the desired information is sufficient.  The custodians  are expected to use their superior knowledge of the records within their custody to assist the requester in obtaining the desired information.

 

4.4.   Responding to a Public Record Request

All requests must receive a response as soon as practicable, without unreasonable delay and always within ten days.  The response must be either an offer to provide the requested materials or a written denial.  A denial must detail the specific legal basis for the withholding of the requested materials.  The legal basis must include a citation to the statutory exemption upon which the custodian relies and must also explain why the exemption applies.  A denial must also advise the requester of their rights to seek redress through the administrative process provided by the Office of the Supervisor of Public Records.

 

The Public Records Law only applies to information that is in the custody of a governmental entity at the time the request is received.  There is no obligation to create a record for a requester.

 

Inquiries into a requester’s status or motivation for seeking information are expressly prohibited.  Consequently, all requests for public records, even if made for a commercial purpose or to assist the requester in a lawsuit against the holder of the records, must be honored in accordance with the Public Records Law.

 

4.5.   Exemptions to the Public Record Law Requirements

Summary of  “public records” that are exempted from the requirements of the Public Records Law: (Contact the Town Clerk for detailed description of each exemption.)

a)         Withholding from disclosure those documents which are specifically or by implication exempted from disclosure by statute.

 

b)         Related solely to internal personnel rules and practices of the government unit, provided, however that such records shall be withheld only to the extent that the proper performance of necessary governmental functions requires such withholding.

 

 

c)         Personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.

 

d)         Inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this clause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based.

 

 

e)         Allows the withholding of “notebooks and other materials prepared by an employee of the Commonwealth which are personal to him/her  and not maintained as part of the files of the government unit.  (The application of this exemption is limited to records that are work-related but can be characterized as personal to an employee.)

 

f) Investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.

 

 

g)         Trade secrets or commercial or financial information voluntarily provided to an agency for use in developing government policy and upon a promise of confidentiality; but this clause shall not apply to information submitted as required by law or as a condition of receiving a government contract or other benefit.

 

h)         Proposals and bids to enter into any contract or agreement until the time for the opening of bids in the case of bids or proposals to be opened publicly, and until the time for the receipt of bids or proposals has expired in all other cases; and inter-agency or intra-agency communications made in connection  with an evaluation process for reviewing bids or proposals, prior to a decision to enter into negotiations with or award a contract to, a particular person.

 

i)      Appraisals of real property acquired or to be acquired until (1) a final agreement is entered into; or (2) any litigation relative to such appraisals has been terminated; or (3) the time within which to commence such litigation has expired.

 

j)      The names and addresses of any persons contained in, or referred to in, any applications for any licenses to carry or posses firearms issued pursuant to chapter one hundred and forty or any firearms identification cards issued pursuant to said chapter and the names and addresses on sales or transfers of any firearms, rifles, shotguns, or machine guns, or ammunition therefor, as defined in said chapter one hundred and forty and the names and addresses on said licenses or cards.

 

k)    (This exemption was repealed by the legislature.)

 

l)      Withholding from disclosure test questions and answers, scoring keys and sheets, and examination data used to administer a licensing examination; provided, however, that such materials are used to administer another examination.

 

 

Budgeting & Procurement

 

Budgeting

In general, a Town Board does not have a budget unless one is authorized by Town Meeting.  If a board anticipates a need to expend funds, it can request a budget for the next fiscal year.

 

For the purpose of enabling the Town Manager to make up the annual estimate of expenditures, all boards shall, upon his/her written request, furnish all information in his/her possession and submit to the Town Manager, in writing, a detailed estimate of the appropriations required for the efficient and proper conduct of the board during the next fiscal year. (c.9-1-1)

 

Procurement

The ability of a Town board to spend public funds is dependent upon the authority that is approved by Town Meeting.  Any expenditures that exceed $10,000 will require issuing a Request-for-Proposals.  For boards that allocate money from any of the gift funds, a request must be sent to the Town Treasurer.  The Treasurer will then forward the request for approval to the Board of Selectmen.

 

Disbursements

As bills are incurred by the Town board, the Clerk shall:

1. Obtain a payment voucher from the Accountant’s office.

2. Complete the payment voucher and attach all receipts and supporting paperwork.

3. Submit the voucher for approval by the Town board and obtain the Chair’s signature.

4. Present the packet to the Town Accountant’s office for payment.

 

Support Services

 

Parking

Free resident parking permits shall be issued to Town board members who serve on standing Town boards which meet a minimum of 12 times per year.

 

Photocopying

Each Town board is assigned a photocopier account number.  (Account numbers are available through the Secretary to the Town Manager.)  The photocopier is located in Caucus Hall and is only available for official Town business.  A Town Hall staff person will demonstrate how to operate the photocopier.

 

Postage

Each Town board is assigned a postage account number for access to the Town Hall postage machine. (Account numbers are available through the Secretary to the Town Manager.) The postage machine is located in Caucus Hall and is only available for official town business.  A Town Hall staff person will demonstrate how to operate the postage machine.

 

Staff Support

Fundamentally, staff support for Town boards is a matter that is addressed by the Town Manager and the Board of Selectmen during the annual budget process. When special circumstance arise thereafter, a Town board which identifies a need for assistance by Town staff is required to make a formal request through the Town Manager.  In the request, the Town board must include the description of the need and issue.  The  Town Manager will take one of two actions:

1)   approve the request and makes assignment to the appropriate employee(s);

2)   return the request with an explanation.

 

 

Town Counsel    (TM Memo 9-18-1992)

All Town boards are required to go through the Town Manager, and obtain permission therefrom, in order to use Town Counsel’s services.  The firm of Kopelman  & Paige has standing instructions not to respond to questions posed by a Town board unless approval of the Town Manager can be evidenced.

 

Procedure:

1.   Complete the standard form titled “Request for Legal Service” that is available in the Town Manager’s office.

 

2.   Frame question(s) in writing and provide all supporting documentation.

 

3.   Submit this form to the Secretary to the Town Manager.

 

4.  The Town Manager will take one of three (3) actions to the Town board’s request:

a) forward the request to Town Counsel;

b) forward the request to Labor Counsel; or

c) return to requester with an explanation.

 

Conflicts-of-Interest

 

The purpose of the conflict-of-interest law is to ensure that public  employees’ private financial interests and personal relationships do not conflict with their public obligations. The conflict-of-interest law applies to town officials and employees – all elected and appointed, full- and part-time, paid and unpaid positions. 

 

Obtaining Legal Advice

At any time, a Town board member can contact the State Ethic Commission and receive informal legal advice or request an advisory opinion.  A member may call the State Ethics Commission’s Legal Division at (617) 727-0060 for informal, confidential advice on the conflict law, or seek a written advisory opinion from the Ethics Commission.  If a member has a question about his/her own activities, he/she should request an opinion prior to engaging in the activity in question.  Requests to the Commission for an advisory opinion must be in writing and must be about a real, not hypothetical, situation which presents a problem under the conflict-of-interest law.

 

Filing a Complaint

Anyone can file a complaint concerning a conflict-of-interest – in person, over the phone or by letter.  The law requires the Ethics Commission to keep the identity of all complaints confidential and the Commission’s enabling statute (MGL.c.268B§8) protects a complainant from retribution for filing a complaint with the Commission.  If a member believes that a violation of the conflict-of-interest law has occurred or is occurring, he/she may call or visit the: State Ethics Commission, One Ashburton Place, Room 619, Boston, MA (617) 727-0060.

 

Conflict-of-Interest Disclosure  (Admin Dir 97-3)

1.   Purpose

1.1 This directive is issued for the purpose of ensuring that all Town board members and Town representatives appointed by the Board of Selectmen and Town Manager comply with the provisions of MGL Chapter 268A, the Conflict-of-Interest Law, including disclosures made under sections 19 and 23 thereof.

 

2.   Policy

2.1 Ethical Standards. As set forth in §3-4-8 of the Provincetown Charter, "Town employees and members of town boards shall be governed by the ethical standards set forth in Chapter 268A of the Massachusetts General Laws, the Provincetown General By‑Laws, and this charter."

2.2 Actual Conflicts-of-Interest: Do Not Participate; Do Leave the Room. A town board member or representative shall not participate in his/herofficial capacity in matters in which such participation is prohibited by the Conflict-of-Interest Law.  The Town board member or representative shall, at any meeting where the particular matter is discussed, disclose orally the existence of the conflict-of-interest, remove himself/herself from the meeting at that time, and leave the meeting room during all times that particular matter is being discussed.

2.3 Financial Interest in Particular Matters (MGL C.268A,§19): Make Disclosure to Appointing Authority and Obtain Permission to Participate.

2.3.1    No town board member or representative shall, without obtaining the prior written approval of their appointing authority, participate in their official capacity in any particular matter involving a financial interest involving the appointee, his/her immediate family or partner, a business organization in which he/she serves as officer, director, trustee, partner or employee, or any person or organization with whom the appointee is negotiating or has any arrangement concerning prospective employment.

2.3.2    In requesting permission of the appointing authority, the appointee shall advise his/her appointing authority of the nature and circumstances of the particular matter and make a full disclosure of the financial interest.

2.3.3    The appointee may participate on said particular matter only after the appointing authority makes a written determination that said financial interest is not so substantial as to be deemed likely to affect the integrity of the services which the municipality may expect from the appointee.

2.4 Appearance of Conflict (MGL C.268A,§23): Make Disclosure to Appointing Authority Prior to Official Action.

2.4.1    The Conflict-of-Interest Law provides that public officials and employees must avoid conduct that creates a reasonable impression that any person can improperly influence or unduly enjoy their official favor, or that they are likely to act (or fail to act) because of kinship, rank, position or undue influence by any party or person. A reasonable impression of favoritism or bias may arise when a public official acts on matters affecting a friend's, a business associate's or a relative's financial interest.

2.4.2    Notwithstanding, MGL C.268A,§23 allows public officials to act on matters, even if it creates the appearance of a conflict, if they openly admit all the facts surrounding the appearance of bias prior to any official action.

2.4.3    Appointed officials must make such disclosures in writing to their appointing authority, and the disclosure must be kept available for public inspection.

2.5 Applicability of Policy. This policy shall apply to appointments made by the Board of Selectmen, Town Manager, and by those town boards appointed by the Board of Selectmen and Town Manager to which an appointment has devolved under Charter §3-1-2, and to appointed representatives.

2.6 Responsibility of Appointee. It is the responsibility of each Town board member or appointed representative to determine for themselves whether or not to make disclosures prior to acting on a particular matter where a conflict exists or may exist.

2.7 Failure to Comply as Basis for Removal from or Non-Reappointment to Office. In addition to any sanctions which may be imposed by the State Ethics Commission, failure to comply with this directive may be the basis for the appointee's removal by the appointing authority under Charter §10-2-1, or for his/her non-reappointment upon term expiration.

 

3.   Procedures

3.1 When an appointee makes a disclosure to the appointing authority under MGL C.268A, §19 or §23, he/she shall first obtain the appropriate disclosure form from the Town Clerk, copies of which are attached hereto and made a part hereof.

3.2.1    Once filled out by the appointee and approved by the appointing authority, a disclosure form under MGL C.268A,§19 shall be filed by the appointing authority with the Town Clerk. The appointee shall not participate in the particular matter until and unless the appointing authority has granted written permission for the appointee to do so, and has filed a copy of such written permission with the Town Clerk.

3.2.2    Once filled out by the appointee, a disclosure form under MGL C.268A,§23 shall be filed in duplicate with the Town Clerk and with the appointing authority.

3.3 The Town Clerk shall maintain a separate file of disclosure statements which shall be kept available for public inspection.

3.4 In the public meeting at which the appearance of conflict arises, the appointee shall make an oral disclosure for inclusion in meeting minutes.

 

4.   Distribution and Education

4.1 The Town Clerk shall provide a copy of this directive to all Town board members and appointed representatives upon its issuance, and upon the subsequent appointment or reappointment of any board member or representative.

4.2 The Town Clerk shall also maintain and distribute educational materials from the State Ethics Commission to appointees and the general public.

4.3 The Town Clerk shall develop a schedule of training programs to educate board members and representatives on the Conflict-of-Interest Law and this directive, which training programs should be conducted in both formal and informal settings.

 

State Ethics Commissions

The Massachusetts Conflict-of-Interest Law (Chapter 268A of the General Laws) sets a minimum standard of ethical conduct for all municipal employees and officials.  Enacted in 1962, the conflict law’s goal is to promote confidence in our government and in the integrity of its officials.

 

The Massachusetts State Ethics Commission was established in 1978 by the Legislature as an independent civil enforcement agency to enforce the conflict of interest and financial disclosure (Chapter 268B) laws.  The Commission is a bipartisan, five-member board appointed by the Governor, the Secretary of State and the Attorney General. The Commissioners appoint an Executive Director who heads a full-time staff employed in four (4) divisions: Enforcement, Legal, Financial Disclosure, and Public Education.

 

Available Bulletins

The following list of bulletins are available through the Provincetown Town Clerk’s office.

o    A Practical Guide to the Conflict-of-Interest Law for Municipal Employees (this includes board members).

 

o    Fact Sheets

1.   Avoiding “Appearances” of Conflicts-of-Interests

2.   Liquor Licenses and the Conflict Law

3.   Guidelines for Municipal Officials Voting on Budgets

4.   “Special” Municipal Employees

5.   The Rule of Necessity

6.   Municipal Officials: Don’t Vote on Matters Affecting Abutting or Nearby Property

7.   Board of Health Members Installing Local Septic Systems

8.   Nepotism

9.   Agency

10. Business and Entertainment Expenses for Public Officials

 

o Advisories

1.   Political Advisory

2.   Municipal Districts and Authorities and Their Special Municipal Employees

3.   Municipal Lawyers Representing Both a Municipal Employee and a Municipality in the Same Suit

4.   Free Passes

5.   Nepotism

6.   Municipal Employees Acting as Agents

 

Definitions

 

Deliberation: 

a verbal exchange between a quorum of members of a governmental body attempting to arrive at a decision on any public business within its jurisdiction.(MGL.c.39§23A)

 

Emergency:   

a sudden, generally unexpected occurrence or set of circumstances demanding immediate action. (MGL.c.39§23A)

 

Executive session: 

any meeting of a governmental body which is closed to certain persons for deliberation on certain matters.(MGL.c.39§23A)

 

Governmental body: 

every board, commission, committee or subcommittee of any district, city, region or town, however elected, appointed or otherwise constituted, and the governing board of a local housing, redevelopment or similar authority. (MGL.c.39§23A)

 

Meeting:  

any corporal convening and deliberation of a governmental body for which a quorum is required in order to make a decision at which any public business or public policy matter over which the governmental body has supervision, control, jurisdiction or advisory power is discussed or considered; but shall not include any on-site inspection of any project or program. (MGL.c.39§23A)

 

Quorum: 

a simple majority of a governmental body unless otherwise defined by constitution, charter, rule or law applicable to such governing body. (MGL.c.39§23A)

 

Town employee: 

a person performing services for or holding an office, position, employment or membership in a municipal agency of the town of Provincetown, whether by election, appointment, contract of hire or engagement, whether serving with or without compensation, on a full, regular, part‑time, intermittent or consultant basis. (C.1-2-2)

 

Town board: 

a Town board, committee, commission or Counsel, including the Board of Selectmen, but not including the Board of Fire Engineers, created by the Massachusetts General By‑Laws, a vote of the Town Meeting, the Board of Selectmen, or this Charter.(C.1-2-2)

 

Town Authority: 

any person or group of persons, whether elected or appointed, authorized to bind the Town in contract, or to enforce on behalf of the Town the General Laws of the Commonwealth, the Town Charter, the Town By‑Laws, or any rule or regulation duly promulgated by the Board of Selectmen, a Town Board, or any agent or delegate thereof.(GBL.1-2-3)

 

 


 

Description of Town Boards

 

Click here for description of Town Boards.

 

 

Appendix A

 

Municipal Resources

Available From The Town Clerk’s Office

 

 

Ø      Acts & Resolves of Massachusetts

Ø      Massachusetts Appeals Court Report

Ø      Massachusetts General Laws

Ø      Massachusetts Reports

 

Ø      Provincetown Annual Town Report 1869 to Present

Ø      Provincetown Board of Health Regulations

Ø      Provincetown Board of Selectmen Rules of Procedures

Ø      Provincetown Cemeteries Rules & Regulations

Ø      Provincetown Charter

Ø      Provincetown Charter Enforcement Commission Procedures

Ø      Provincetown Committee Roster

Ø      Provincetown General By-laws

Ø      Provincetown Harbor Regulations

Ø      Provincetown Historical Commission Rules of Procedure

Ø      Provincetown Licensing Regulations

Ø      Provincetown Parking Regulations

Ø      Provincetown Personnel Rules

Ø      Provincetown Shellfish Regulations

Ø      Provincetown Town Meeting Decisions

Ø      Provincetown Town Reports 1889 to Present

Ø      Provincetown Zoning By-laws

Ø      Provincetown Municipal Archive 

Ø      Provincetown Municipal Library

 

 

 

Appendix B

Massachusetts Open Meeting Law

 

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 I 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, f or corporation.

 

(7) To comply with the provisions of any general or special law or federal grant‑in‑aid

 

(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 meeting‑‑‑ 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 meetings, 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 acknowledgement 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 A ~ 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.

 

Amended by St.1985, c. 333; St.1986, c. 694; St.1987, c. 159; St.1988, c. 116, § 4; St.1988, c. 291; St.1989, c. 341, §§18,19; St.1993, e. 455; St.1994, c. 259.

 

 

Appendix C

Massachusetts Public Record Law

Twenty‑sixth, "Public records" shall mean all books, papers, maps, photographs, recorded tapes, financial statements, statistical tabulations, or other documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of any political subdivision thereof, or of any authority established by the general court to serve a public purpose, unless such materials or data fall within the following exemptions in that they are:

 

(a) specifically or by necessary implication exempted from disclosure by statute;

 

(b) related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental Functions requires such withholding;

 

(c) personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy;

 

(d) inter‑agency or intra‑agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports oil which the development of such policy positions has been or may be based;

 

(e) notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit;

 

(f) investigatory materials necessarily compiled out of the public view by law enforcement or Other investigatory officials the disclosure of which materials would Probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest;

 

(g) trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality; but this subclause shall not apply to information submitted as required by law or as a condition of receiving a governmental contract or other benefit;

 

(h) proposals and bids to enter into any contract or agreement until the time for the opening of bids in the case of proposals or bids to be opened publicly, and until the time for the receipt of bids or proposals has expired in all other cases; and inter‑agency or intra‑agency communications made in connection with an evaluation process for reviewing bids or proposals, prior to a decision to enter into negotiations with or to award a contract to, a particular person;

 

(i) appraisals of real property acquired or to be acquired until (1) a final agreement is entered into; or (2) any litigation relative to such appraisal has been terminated; or (3) the time within which to commence such litigation has expired;

 

(j) the names and addresses of any persons contained in, or referred to in, any applications for any licenses to carry or possess firearms issued pursuant to chapter one hundred and forty or any firearms identification cards issued pursuant to said chapter one hundred and forty and the names and addresses on sales or transfers of any firearms, rifles, shotguns, or machine guns or ammunition therefor, as defined in said chapter one hundred and forty and the names and addresses on said licenses or cards;

(k) Deleted by St.1988, c. 180, § 1.