The desire to e-mail with other board members is strong and understandable when the public body meets only once or twice a month. E-mail use is risky because it easily can run afoul of the Open Meeting Law (G.L. c. 30A, §§ 18 – 25) (“OML”). This could result in the Massachusetts Attorney General (“AG”) issuing warnings, imposing penalties, or nullifying actions taken by a public body. Project approvals and disapprovals, contract and employment decisions, and rulemaking and enforcement actions can be jeopardized.

The wording of the OML and the AG’s written decisions enforcing the law provide guidance on when e-mail between a quorum of a public body is okay, is risky, and is illegal. A recent decision of the state Supreme Judicial Court (“SJC”) provides additional guidance and created some new latitude for the use of e-mail. Boelter v. Town of Wayland, 479 Mass. 233 (2018).

Open Meeting Law

The OML requires that all meetings of a public body (board, commission, or committee) be open to the public. GL. c. 30A, § 20. There are ten narrow exceptions specified in the statute when a public body may meet in “executive session”, without the public present. GL c. 30A, § 21. A meeting is defined as a “deliberation” by a public body with respect to any matter within the body's jurisdiction”. GL c. 30A, § 18.

The OML’s expansive definition of “deliberation” often ensnares users of e-mail: “an oral or written communication through any medium, including electronic mail, between or among a quorum of a public body on any public business within its jurisdiction; provided, however, that ‘deliberation’ shall not include the distribution of a meeting agenda, scheduling information or distribution of other procedural meeting or the distribution of reports or documents that may be discussed at a meeting, provided that no opinion of a member is expressed. ” GL c. 30A, § 18 (emphasis added).

The AG, responsible for enforcement of the OML, has ruled that e-mails back and forth between a quorum of a public body exchanging personal opinions violate the OML. Recall that a quorum is a simple majority of the members of a public body. Id.

Perhaps less obvious is the AG’s interpretation that “deliberation” also includes situations where there is no back and forth. In written determinations¹ issued in response to complaints of violation of the OML, the AG repeatedly has ruled that one member of a public body sending an e-mail to a quorum of that public body, in which the sender expresses their opinion about a matter within the public body’s jurisdiction, constitutes an unlawful “deliberation”. This is so even if no one replies to the sent e-mail.² OML 2011-37; 2013-27.

The AG seems to reason that the sender’s opinion should be held until the public body’s next meeting so that it is expressed in a forum open to the public. Id. This reasoning perhaps is clearer in situations where one or more members of the quorum respond to the initial e-mail and any subsequent e-mails. The underlying policy seems to be that because the public cannot view the e-mail discussion as it unfolds or continues, such an exchange of opinions through e-mail contravenes the purpose of the OML.

Use of E-Mail Allowed, Illegal, or Risky

Recognizing the exceptions to the OML’s definition of “deliberation”, the AG says that e-mail can be used for “administrative” tasks. Even the AG acknowledges, though, that it is not always clear what is an “administrative” task. The AG, therefore, has advised public bodies to refrain from using e-mail to communicate with a quorum of that public body except in very limited circumstances. The AG has said that it is okay for one member of a public body to email to a quorum to:

• Distribute meeting agendas.
• Discuss scheduling of meetings.
• Distribute documents created by a non-member to be discussed at a meeting, as long as the member expresses no opinion about the document in their transmittal e-mail. OML 2013-4; 2013-5; 2015-33. 
• Distribute a draft document for discussion at an upcoming meeting that a member was asked at a prior open meeting to prepare, provided that the draft includes the policy position(s) discussed previously in open meeting, and further provided that the e-mail does not advocate for or against the draft, not express the member’s opinion about the subject matter, and not invite any input via e-mail. OML 2013- 4.
• Distribute a document aggregating individual board member’s evaluations of an employee as long as the evaluation discussion occurs during an open meeting and not via a-mail. OML 2013-5. In Boelter, the SJC ruled that if this is done, the document aggregating evaluations, as well as any individual evaluations, must be made publicly available simultaneously with e-mailing, such as posting on the municipal website and having copies available for public review at the public body’s office.
• Solicit participation in activities considered to be a form of individual free speech, where the statement involves a matter not presently or likely to come before the public body. OML 2013-29.

Based on the OML and the AG’s and SJC’s interpretation of it, e-mail including any attachment(s) should not be sent or shared among a quorum of a public body to:

• Say something the member wished they had or hadn’t said at a prior meeting (about a matter within the public body’s jurisdiction). OML 2014-148; 2015-19.
• Say something the member wants to say, or could say, at a future meeting (about a matter within the public body’s jurisdiction).
• Say something about the manner or timing the public body chooses to present its decisions and proposals to the public, town meeting, or other public body. Such considerations are deemed to constitute public business within a public body’s jurisdiction. OML 2013-29.
• Respond with a personal opinion, via a “Reply all”, to another member’s e-mail to a quorum expressing their opinion about a matter.
• Distribute a document prepared by a member for discussion at an upcoming meeting that embodies the member’s opinion on a matter before the public body. OML 2012-15. However, the SJC in Beoltzer has created a new “out” by allowing this practice only if prior to, or simultaneous with sending the e-mail, the documents are posted on the municipal website and copies made available at the public body’s office.
• Ask for a matter to be placed on the meeting agenda. OML 2015-159. Such requests should be sent only to the chair and/or administrator.
• Question whether the chair or another member has the authority to do something on behalf of the public body. OML 2015-159. Better such inquiries go to the chair and/or administrator to request the topic be added to a future agenda.
• Express an opinion to a non-board member about public business before the public body while copying a quorum of the members. An opinion should be shared only during an open meeting. OML 2012-84.

Based on the AG’s determinations and the SJC’s decision in Beoltzer, a board member should be very careful about using e-mail to:

• Reply with an opinion to just the sender of an e-mail which was sent to a quorum expressing their opinion about a matter. The AG cautions that such e-mails can lead to unlawful serial communications among a quorum of members.
• Circulate a draft document prepared by the chair of the public body and asking for member’s input to go directly to the chair or drafter. OML 2011-37, n. 1.
• Seek from a quorum just factual information to insert in a draft document. This can also constitute unlawful deliberation. OML 2013-29.
• Circulate questions (or a document containing questions about a particular matter). While questions per se might be okay, opinions are not and questions may reflect personal opinions. See OML 2012-84. 4
• Ask one member to forward an e-mail (and attachment) to another member, as serial communications can run afoul of the OML and be perceived as an attempt to circumvent the OML. OML 2012-84.

OML Violations

The AG has the power and duty to enforce the OML and to act on complaints filed by any person to determine whether a violation has occurred. When just one member of a public body has violated the OML, the AG calls this an “individual violation”. If more than one member has violated the OML, then the AG rules the public body has violated the OML. Violations can be found to be either intentional or unintentional.

Upon determining a violation has occurred, the AG can issue orders requiring a range of actions, from compelling compliance in the future, to attending training to nullifying in whole or in part any action taken at a meeting, or to imposing civil penalties of up to $1,000 for each intentional violation.

A violation of the OML can result in a public body or one of its members being embarrassed or politically damaged, having to re-do a meeting or vote, taking time for mandatory training, paying a financial penalty, or even losing a court case. For a developer or project opponent, it can result in the public body’s decision to issue or deny a permit being nullified and having to be reheard and re-voted, causing delay and the possibility of a different outcome. For an employee or someone awarded a municipal contract, the vote to hire or approve could be rendered invalid. The effect of rules promulgated or enforcement actions issued by the public body could be compromised or altered.

Please also see the AG’s Open Meeting Guide, last revised October 2017, available at this page at the Mass.gov site.

¹ The AG’s Determinations are on-line: https://www.mass.gov/the-open-meeting-law and are organized by year, specifying the date, determination number, name of the public body and public body type, and city or town.
² The AG focuses on whether anyone responded to an unlawful e-mail to determine whether the individual violated the OML (when there is no response) or the public body as a whole violated the OML (where there was one or more response(s)).