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.
Absences Without
Informing The Chair
Posting Public
Meeting Notice & Reserving Meeting Room Space
Judge Welsh Hearing, Room Occupancy
Limit: 82
Minutes and
Records of Town Boards M.G.L. c.39, §23B
Adoption of Rules
& Regulations
Calculation of
Majority Vote (K&P March 18, 1996)
Rule of Necessity (K&P June 1993)
Records of Doings
and Accounts
Town Counsel (TM Memo 9-18-1992)
Conflict-of-Interest
Disclosure (Admin Dir 97-3)
Available From
The Town Clerk’s Office
Massachusetts
Open Meeting Law
Massachusetts
Public Record Law
Mullin v.
Planning Board of Brewster
MGL C. 39, §23D
Town Board quorums at Adjudicatory Hearings
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.
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.
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.
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)
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)
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.
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.
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)
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)
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)
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.
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.
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.
The Vice-Chair acts for the
Chair whenever the latter is absent from meetings and performs other necessary
duties.
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.
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.
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.
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.
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.
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
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
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)
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 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.
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.
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)
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)
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.
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)
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.
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)
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.)
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)
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.
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)
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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)
a
sudden, generally unexpected occurrence or set of circumstances demanding
immediate action. (MGL.c.39§23A)
any
meeting of a governmental body which is closed to certain persons for
deliberation on certain matters.(MGL.c.39§23A)
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)
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)
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)
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)
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)
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)
Click
here for description of Town Boards.
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
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.
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.