HomeMy WebLinkAboutCPTC Rolls Responsibilities Planning Zoning Boards Part 2 Massachusetts Citizen Planner Training Collaborative
Roles & Responsibilities
of Planning & Zoning Boards
Open Meeting Law
Public Records Law
Conflict of Interest
Part II
Transparency in Government
The Open Meeting Law, the Public Records Law, and the
Conflict of Interest Law combine to require openness &
integrity in public service.
Public officials represent the public, who have a right to
know what officials do and how they do it, with only a
relatively few exceptions provided by law.
The public also has a right to expect undivided loyalty, and
that officials will not have “two masters” in the
performance of their official duties.
The “Three-legged Stool”
If you can imagine every action public officials take to
rest on a three-legged stool, where
each leg represents one of the three
laws discussed in this module, if
one leg fails, all will fail.
Public Confidence
If you show a commitment not only to the letter but
to the spirit of these 3 laws, you might gain the
public’s confidence and expect the “benefit of the
doubt” in tough cases.
If, on the other hand, you gain a reputation of only
adhering to the minimum requirements of these 3
laws, the public will be less inclined to give you the
benefit of the doubt.
Minimum Standards
Remember – these 3 laws establish minimum
standards of conduct.
As a board member you would do well to aspire to
service beyond these minimum standards.
The Open Meeting Law
(OML)
The Open Meeting Law
Effective July 1, 2010, the Legislature repealed the 3
separate Open Meeting laws (state, county, local),
and enacted a new consolidated statute applicable to
all government levels. MGL c. 30A, §18–25.
The Attorney General now interprets and enforces
the OML.
The AG’s Division of Open Government (“DOG”)
administers the OML.
Certification
Within 2 weeks of becoming a member of a public
body, or of taking an oath of office, whichever occurs
later, a body member must complete a Certificate of
Receipt of Open Meeting Law materials prescribed
by the AG.
The completed Certificate must be retained where
the body maintains its official records.
Purposes of the Open Meeting Law
Except for executive sessions, “all meetings of a public body
shall be open to the public”.
Recognizes the necessary balance between government
accountability and government efficiency.
Ensures transparency by public bodies by requiring:
Notice
Open Deliberations
Public Access
Ensures efficiency by:
Providing that certain deliberations may take place in executive
session.
Maintaining confidentiality of certain records of executive session.
Key Provisions of the OML
Meetings must be open to the public unless the board
enters into a proper executive session.
Meetings must be posted in a manner that satisfies
enhanced notice requirements.
Public records must be retained with enhanced record
keeping requirements.
Key terms:
“public body”
“meeting”
“deliberation”
“Public Body”
Any multiple-member board, commission,
committee, or sub-committee, however created or
otherwise constituted, established to serve a public
purpose.
Does not include:
The Legislature.
The judicial branch.
Bodies created by a constitutional officer as an advisor.
Bodies that do not serve a public purpose.
Groups that are not established with the “jurisdiction” to make
decisions or recommendations collectively.
“Meeting”
Any deliberation by a public body with respect to any
matter within the body’s jurisdiction.
“Meeting” does not include:
an on-site inspection, so-long as the members do not deliberate.
attendance by a quorum of the body at a public or private gathering or
social event, so-long as the members do not deliberate.
attendance and participation by a quorum of the body at a meeting of
another public body that has complied with the notice requirements of
the OML, communicating only by open participation on matters there
under discussion and not privately among themselves.
a session of Town Meeting, under MGL c. 39, § 9.
adjudicatory proceedings of certain quasi-judicial state bodies.
Remote Participation
Remote Participation may be allowed subject to
procedures & restrictions. These include:
•May be approved by Mayor or Board of Selectmen
•May be revoked by Mayor or Board of Selectmen.
•A quorum must be physically present at the meeting
location.
•Members participating remotely and all present at
meeting location must be audible to each other.
•Remote members may vote and shall not be deemed
“absent”.
Remote Participation (continued)
•The Chair must determine that one or more of the following
factors make physical attendance unreasonably difficult:
Personal illness Personal disability
Emergency Military service
Geographic distance
•Technology – the following media are acceptable:
telephone, internet, satellite enabled audio or
video conferencing, or any other technology that
allows remote participants & all persons present to
hear each other.
•With video technology, the remote participants must be
visible to all persons present at meeting location.
Remote Participation (continued)
The Public Body determines which of the remote
technology may be used.
The Chair decides technical difficulty issues. Meeting
suspension is encouraged. If connection is lost, meeting
minutes must reflect that fact and time of occurrence.
Chair must announce use of remote technology, member
using it, and reason for its use.
All votes must be roll call votes.
Remote members may participate in executive session but
must state that no one else is present or able to listen in.
Public bodies may adopt bylaws that prohibit or restrict use
of remote participation.
“Deliberation”
Any oral or written communication through any
medium, including e-mail, between or among a
quorum of a public body on any matter within the
body’s jurisdiction.
Deliberation does not include distribution of:
A meeting agenda.
Scheduling or procedural information.
Reports or documents that may be discussed at an upcoming
meeting, so long as the material does not express the opinion
of a member of the body.
Questions to Ask
Q1 – Is the communication between members of the
body?
Q2 – Does the communication constitute a
deliberation?
Q3 – Does the communication involve a matter within
the body’s jurisdiction?
Q4 – Does the communication fall within one of the
exceptions listed in the OML?
Meeting Notice
Except in an emergency, a public body must post notice at
least 48 hours in advance, excluding Saturdays, Sundays,
and legal holidays.
Notice must include:
Date
Time
Place
A listing of topics the chair reasonably anticipates to be discussed.
Emergency means a sudden, unexpected occurrence
demanding immediate action.
In an emergency, body must post notice as soon as
reasonably possible.
Posting the Notice
File the notice with the municipal clerk.
Post in a manner conspicuously visible to the public,
including persons with disabilities, at all hours in or
on the municipal building where the clerk’s office is
located.
The town clerk must inform the Attorney General of
the town’s election of alternative posting options.
Alternative notice options are:
Posting Alternatives
On the municipal website and post notice or provide internet access
in an alternative municipal building where the notice is accessible at
all hours.
On the local cable channel, and cable access in an alternative
municipal building where the notice is accessible at all hours.
In a newspaper, and posting in an alternative municipal building
where the notice is accessible at all hours.
Computer monitor or electronic bulletin board where visible outside
of the building
Audio recording, available to public at all hours.
Notice Tips
Update notice when new topics arise during the 48 hour
notice period.
Do not post notice so far in advance that new topics are
likely to arise.
Establish good posting arrangements with the municipal
clerk.
Meeting cancellations do not require 48 hour notice.
Rescheduling a cancelled meeting requires full notice
compliance.
Accessibility
Although not a requirement of the OML itself, all
meetings of a public body must comply with federal
and state accessibility requirements, including the
Americans with Disabilities Act.
The Civil Rights Division of the Attorney General’s
Office is available to assist as needed.
Public Participation
Public may attend open sessions, but may not address
the body without permission of the chair.
Public may make audio or video recording upon
notification, subject to reasonable conditions.
Chair must announce if any recordings are being made.
Keep the audience informed at all times of where the
board is on the agenda and what is occurring at the
meeting.
Meeting Minutes
Must state date, time, place of meeting, and
members present or absent.
Must include:
A summery of discussion of each topic.
Decisions made, actions taken, and votes recorded (no secret
ballots permitted).
A list of documents and other exhibits used by the body.
Executive Sessions
There are 10 purposes for which an executive session
may be held.
Executive Session Process
Must first convene in open session beforehand.
Must state the purpose(s) of executive session.
Must have roll-call majority vote to go into executive session.
Must announce if open session will reconvene afterward.
Must maintain exhibits and documents used.
Must only discuss matters cited.
All executive session votes must be by roll-call.
Meeting Records
Should be created and approved in a timely manner.
Documents and exhibits must be retained but need not be
physically stored with the meeting minutes.
Open session minutes must be provided within 10 days of a
request, whether in draft or final form.
Unless otherwise exempt from disclosure, executive session
minutes must be disclosed if not defeating purpose for
which meeting was held.
Check recently updated records retention schedule.
Complaints – Step 1
Complaint must be filed with the body within 30
days of alleged violation or of the date by which the
violation should reasonably have been discovered.
Complaint Form is available at the AG’s Division of
Open Government website.
The completed form must be sent to the chair of the
public body.
Complaints – Step 2
The chair distributes complaint to body’s members.
The body has 14 days within which to respond and
inform the Division of Open Government.
The Director of the Division may extend the time for
response for good cause.
Complaints – Step 3
After 30 days of Step 1, if the complainant is not
satisfied with the body’s proposed resolution, the
complainant may file complaint with the Division of
Open Government.
Complaints to the Division must be filed within 90
days of the alleged violation.
Complaints - Action by AG
The AG will acknowledge complaint, and may request or
require documents and interviews.
The AG may determine whether there has been a violation,
and if so whether it is intentional.
The AG may determine if the action taken or proposed by
the body is adequate.
Resolution of the matter may be informal, formal, or
possibly by court action.
The public body may appeal the decision of the AG.
Range of Remedies
(a) Compel immediate and future compliance.
(b) Compel attendance at OML training.
(c) Compel public release of minutes or documents.
(d) Nullify action taken by body in violation of OML.
(e) Reinstatement of employee.
(f) Civil penalty of up to $1,000 on a body for intentional
violation.
(g) Other appropriate relief.
Alternative Complaint Process
The Attorney General or 3 or more registered voters
may initiate a civil action to enforce the OML.
The action must be filed in the Superior Court in any
county in which the body acts or meets.
Resources and Contact Information
AG’s Open Meeting Law Website:
http://www.mass.gov/ago/openmeeting
Open Meeting Law:
MGL c. 30A, §18-25
Code of Massachusetts Regulations, 940 CMR 29.00
Office of the Attorney General
Division of Open Government
One Ashburton Place
Boston, MA 02108
(617) 963-2540
Email: openmeeting@state.ma.us
MASSACHUSETTS GENERAL LAW C. 4, § 7(26)
The Public Records Law
(“PRL”)
“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,
…
Public Records
The Public Records Law (“PRL”) - Every person has a right
of access to public information, including the right to
inspect, copy, or have copies provided upon payment of a
reasonable fee.
A “public record” includes material, regardless of physical
form or characteristics, made or received by a public officer
or employee (the “custodian”), unless specifically exempted
by the Public Records Law.
A “custodian” is any public officer or employee who in the
normal course of duty has access to or control of public
records.
Public Record Request & Response
Requests may be made in person or in writing (mail, fax,
email) and must contain a reasonable description of the
material.
Custodian is expected to use any superior knowledge of the
records in their custody to assist in locating the material.
Custodian must respond within 10 days by (a) honoring the
request, or (b) providing an estimate of the time and cost of
doing so, or (c) by a denial citing specific basis for
withholding the requested material.
Other than under Exemption (n), the custodian may not
inquire into the status or motivation of the requester.
Appeal Process
The requester may appeal to the Supervisor of Public
Records if the response is not in compliance with law.
Although requests do not have to be written, it is
recommended that it be written, since no appeal to the
Supervisor can be done unless the request is in writing.
The appeal starts by sending the Supervisor:
A copy of the written request
A copy of the custodian’s response (if any)
A cover letter explaining the details
Records in Existence
Requests may not be made for records that (1) do not exist
yet, or (2) that no longer exist.
Response to a PRL request may be limited to information
physically existing and in the custody of the public entity at
the time of the request.
No obligation for the custodian to make a record, but
should try to locate existing records that contain the
requested information.
“Information” alone is not a public record, only a record
that contains information is a public record.
Fees
A records custodian may charge a reasonable fee to
cover the costs of complying with the request.
Fees for copies: $0.20/page, or actual costs of
reproduction.
Fees for “search and segregation” time: the hourly
rate of the lowest paid employee with the required
knowledge and experience for the time spent in
searching, redacting, and reproducing
Exemptions to the PRL
“Public records” definition contains 18 exemptions that may
serve as the basis for withholding a record, in whole or in part.
Exemptions are strictly and narrowly construed.
Where exempt information is intertwined with non-exempt
information, the non-exempt portions must be disclosed and the
exempt portions redacted.
Other laws may impose a legal obligation to withhold certain
information - laws relating to personal privacy and personal
identifying information.
A record is presumed “public” unless an exemption applies.
The “Statutory ” Exemption
Exemption (a) – applies to 2 categories of records
that are “specifically or by necessary implication
exempted from disclosure by statute.”
Category 1 – where a statute expressly states that the record
“shall be kept confidential” or that a record “shall not be a
public record”.
Category 2 – records that expressly limit dissemination of
particular records to a defined group of individuals or
entities
The “Privacy” Exemption
Exemption (c) – the most frequently invoked
exemption, contains 2 categories:
Category 1 – “personnel and medical files or
information”.
Category 2 – “other materials or data relating to a
specifically named individual, the disclosure of which
may constitute an unwarranted invasion of personal
privacy,” such as intimate details of a highly personal
nature.
The “Personal Notes” Exemption
Exemption (e) – notebooks, notes, and other
materials prepared by an employee that are
personal and not maintained as part of the files of
the board.
(This exemption is not available where such materials are
shared with other board members or are being maintained
as part of the board’s official files. )
The “Appraisals of Real Property” Exemption
Exemption (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.
The “Security & Safety” Exemption
Exemption (n) – records relating to layout,
structure, security, emergency preparedness, and to
the security or safety of persons, buildings,
structures, facilities, transportation, or other
infrastructure, the disclosure of which, in the
reasonable judgment of the custodian – subject to
review by the Supervisor of Public Records – is
likely to jeopardize public safety.
(This exemption is the only one in which the status or motivation
of the requester can be inquired into by the custodian, and where
disclosure is conditionally discretionary. )
“Attorney-Client Privilege”
Confidential communications between government
entities and their legal counsel undertaken for the
purpose of obtaining legal advice or assistance are
protected under the Common Law “attorney-client
privilege.”
“Work product” documents of the government
attorney are not exempt from disclosure under the
Public Records Law.
Computer Records
The statutory definition of “public records” does
not distinguish between paper records and records
stored in digital format.
Records custodians are not required to create a
computer record in response to a request, except
where reprogramming is required in order to
comply with a request.
Records Management & Maintenance
The PRL requires that public records be retained, well-
organized, and readily accessible.
Records custodian must ensure safekeeping and availability
of public records.
The Municipal Records Retention Manual (revised 2011)
lays out the retention periods for all municipal records.
http://www.sec.state.ma.us/arc/arcrmu/rmuidx.htm
Of particular note:
Series 1 -- Records in Common
Series 3 -- Zoning Board of Appeals
Series 15 -- Planning Board
Electronic Records Storage
No formal standards are currently available for the long-
term storage, retrieval, and maintenance of electronic
records.
Exclusive electronic storage may not exceed 10 years.
Paper originals must be retained for the retention
period.
Records with a retention period of less than 10 years
may be stored exclusively electronically once the
computer storage system and the proper Destruction
Schedule have been approved .
Protecting Personal Information
In 2007, Chapter 93H was enacted that imposes
obligations on the acquisition, handling, and
disclosure of personal information.
Strict notification requirement apply to any known
security breach.
“Personal information” is specifically defined as:
“Personal Information” Defined
A resident's first & last name or first initial & last name in combination
with 1 or more of the following data that relate to such resident:
(a) Social Security number;
(b) Driver's license number or state-issued identification card number;
or
(c) Financial account number, or credit or debit card number, with or
without any required security code, access code, personal identification
number or password, that would permit access to a resident's financial
account;; provided, however, that “Personal information” shall not
include information that is lawfully obtained from publicly available
information, or from federal, state or local government records
lawfully made available to the general public.
Personal Information Tip
Be critically selective when asking for personal
information, and do so only when there is a
legitimate programmatic reason to have it.
Once obtained, retain the information in a secure
place with access limited to only those with a
programmatic need to know.
Report any security breach as required by MGL c.
93H, § 3.
Help is Available
Secretary of State – Public Records Division
http://www.sec.state.ma.us/pre/preidx.htm
Records Management Unit
Mr. Terry French: 617-727-2816
Supervisor of Public Records Office
Attorney of the Day: 617-727-2832
“ALWAYS DO RIGHT. THIS WILL
GRATIFY SOME PEOPLE AND
ASTONISH THE REST”
MARK TWAIN
The Conflict of Interest Law
(“COI”)
Conflict of Interest Law
The Conflict of Interest Law (“COI”).
General Laws, Chapter 268A
930 CMR 5.00; 6:00
The COI is designed to:
Prohibit and prevent conflicts between private interests and
public duties;
Foster integrity in public service; and
Promote public trust and confidence in government.
The COI imposes restrictions on:
What the employee does on-the-job, after hours, and after
leaving public service.
Penalties for COI Violations
1.Civil penalty of up to $10,000 and up to $25,000
for bribery cases.
2.Order to repay the economic advantage gained by
the violation.
3. Restitution to injured parties
4. Criminal prosecution.
Municipal Employee
“Municipal Employee” is a broadly defined term,
meaning anyone performing services for a city or
town or holding a municipal position, whether paid
or unpaid, full-time or part-time.
It includes:
Elected officials
Volunteers
Consultants
An employee of a private firm under contract to the city or
town
“Special Municipal Employees”
This designation recognizes the need not to unduly
restrict volunteers and part time employees.
Made by Select Board, City Council, or by charter.
Eligible if :
Unpaid, or
Part-time but allowed to have another job during normal working
hours, or
If not paid for working more than 800 hours during preceding 365
days.
“Special Municipal Employees” (Continued)
If designated, special municipal employee may:
be paid by others,
act on behalf of others, and
act as attorney for others on matters before boards other than
their own.
Must not have participated in the matter as part of
municipal position.
The matter must not be, or within the past year have
been, under official responsibility.
On-the-Job Restrictions
(a) Bribes
(b) Gifts and gratuities
(c) Misuse of position
(d) Self-dealing and nepotism
(e) False claims
(f) Appearance of conflict
(g) Confidential information
(a) Bribes
A bribe means: giving, offering, receiving, or asking
for anything of value in exchange for the employee’s
official actions.
Asking for and taking bribes is prohibited.
A bribe involves a corrupt intent – the employee
agrees to do or not do some official act, and the giver
intends to influence the employee to act or not act.
(b) Gifts and Gratuities
Accepting anything valued at $50 or more:
Because of official position, or
To reward past official actions, or
To influence future official actions
For example: meals, entertainment, event tickets,
sport admissions, travel.
Certain travel expenses and fees for educational
programs are covered by regulatory exemption.
Violations can be cumulative. A number of smaller
gifts together worth more than $50 can violate the
COI.
(c) Misuse of Position
Using official position to secure for self or
another something not entitled to, or
causing this to happen.
(d) Self-dealing & Nepotism
Participating as a municipal employee in a matter in which
employee or employee’s family or business organization has
a direct or foreseeable financial interest.
Family includes spouse, and the parents, children, siblings
of both employee and spouse.
Employer includes current or prospective, and business in
which employee is director, officer, trustee, or employee.
Participation includes discussing, voting, delegating.
(d) Self-dealing & Nepotism (continued)
Financial interest can be:
Large or small
Positive or negative.
Not included:
Financial interests that are remote, speculative or not sufficiently
identifiable.
Abstention:
In many cases a municipal employee may be able to comply with the
COI by simply abstaining, without having to give a reason for not
participating.
(e) False Claims
Presenting a false claim to employer for a
payment or benefit, or causing someone else
to do so.
(f) Appearance of Conflict
Acting in a manner that would cause a reasonable
person to conclude that the employee can be
improperly influenced.
Relationships and affiliations could prevent
employee from acting fairly and objectively in official
duties.
Violation can be avoided by public disclosure of the
facts to appointing authority.
(g) Confidential Information
Improperly disclosing or personally using
confidential information obtained through
the job.
After Hours Restrictions
a)Second paid job.
b)Divided loyalties.
c) Inside track.
(a) Second Paid Job
An employee generally may not have a direct or indirect
financial interest in a contract made by the municipality.
With certain exceptions an employee is prohibited from
having a direct contract or, deriving any financial benefit
from, a contract which the municipality has with another
person or entity.
Outside employment contracts are included.
(b) Divided Loyalties
Receiving pay from anyone other than the city or town to
work on a matter involving the city or town is a violation of
the COI.
Acting as agent or attorney for anyone other than the city or
town in a matter involving the city or town is prohibited,
whether or not paid.
Includes contacting municipality by phone, in person, in writing,
serving as spokesperson, acting as liaison.
Employee may always represent own interests, even before
own board.
(c) Inside Track
Being paid by city or town, directly or indirectly, under some
second arrangement in addition to primary job, unless an
exemption applies.
Interest in a municipal contract, including second municipal
job.
Having an indirect financial interest in a contract that the city
or town has with someone else.
Prohibits “inside track” to further financial opportunities not
available to others.
After Leaving Municipal Employment
a)The “Forever Ban”
b)The “One Year Cooling-off Period”
c)Partners
Forever Ban & One Year Cooling off Period
Matters Outside Area of Official Responsibility :
From date of separation, a former employee may represent and be paid
by third party without limitation.
Matters Within Area of Official Responsibility:
Employee participated in matter: former employee is banned forever.
Employee did not participate in matter: employee is banned for one
year on any matter within official responsibility during the two years
prior to the date of separation.
Partners
Business partners of municipal employees
are subject to restrictions during
employment and after service ends.
Where to Find Help
Ethics Commission Website
www.mass.gov/ethics
Contact Information:
State Ethics Commission
One Ashburton Place, Room 619
Boston, MA 02108
Phone (617) 371-9500
Fax (617) 723-5851
Attorney of the Day
(617) 371-9500