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When is Executive Session appropriate in Public Meetings?

Fri, 06 Oct 2023 16:21:00 GMT

The Massachusetts Open Meeting Law, found in G.L. c. 30A, was created to ensure the disclosure of public information to keep citizens informed on government action. The main theme behind the open meeting law is “TRANSPARENCY” of the government to allow for the natural checks and balance of the people. The law creates basic requirements upon which the government must provide: (1) notice of meetings which reasonably inform the public of the matters to be discussed and (2) access to the meetings by the public.

All meetings must be open to the public unless the discussion falls within a statutorily defined exception which allows for executive or closed session. The most important and highly contentious area of the Open Meeting Law regards executive session. The two requirements for executive session are (1) a proper purpose and (2) a proper initiation.

To initiate an executive session the public body must first meet in open session and state openly the general purpose for which they will be entering into executive session. The public body must also state whether they will reconvene in open session once the executive session ends. Lastly, the public body must take a vote on whether they want to enter executive session. Executive session is not a free reign and should not be used as a cloak to discuss improper subjects. The public body must keep accurate records and only discuss matters for which the purpose of the executive session was originally called for during open session.

The ten purposes for which a public body may meet in executive session under G.L. c. 30A § 21(a) include:

(1) To discuss the reputation, character, physical condition or mental health, rather than professional competence, of an individual, or to discuss the discipline or dismissal of, or complaints or charges brought against, a public officer, employee, staff member or individual. The individual to be discussed in such executive session shall be notified in writing by the public body at least 48 hours prior to the proposed executive session; provided, however, that notification may be waived upon written agreement of the parties. The individual has the opportunity to require the session be held open if they choose. If the individual chooses an executive session then they have the right to be present at the session, to have counsel or an agent in attendance for the purpose of advising the individual, to speak on his or her own behalf, and to cause an independent record to be created.

2. To conduct strategy sessions in preparation for negotiations with nonunion personnel or to conduct collective bargaining sessions or contract negotiations with nonunion personnel;

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 public body and the chair so declares;

4. To discuss the deployment of security personnel or devices, or strategies with respect thereto;

5. To investigate charges of criminal misconduct or to consider the filing of criminal complaints;

6. To consider the purchase, exchange, lease or value of real property if the chair declares that an open meeting may have a detrimental effect on the negotiating position of the public body;

7. To comply with, or act under the authority of, any general or special law or federal grant-in-aid requirements;

8. To consider or interview applicants for employment or appointment by a preliminary screening committee if the chair declares that 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, to consider and interview applicants who have passed a prior preliminary screening;

9. To meet or confer with a mediator, as defined in section 23C of chapter 233, with respect to any litigation or decision on any public business within its jurisdiction involving another party, group or entity, provided that:

(i) any decision to participate in mediation shall be made in an open session and the parties, issues involved and purpose of the mediation shall be disclosed; and

(ii) no action shall be taken by any public body with respect to those issues which are the subject of the mediation without deliberation and approval for such action at an open session; or

10. to discuss trade secrets or confidential, competitively-sensitive or other proprietary information provided in the course of activities conducted by a governmental body as an energy supplier under a license granted by the department of public utilities pursuant to section 1F of chapter 164, in the course of activities conducted as a municipal aggregator under section 134 of said chapter 164 or in the course of activities conducted by a cooperative consisting of governmental entities organized pursuant to section 136 of said chapter 164, when such governmental body, municipal aggregator or cooperative determines that such disclosure will adversely affect its ability to conduct business in relation to other entities making, selling or distributing electric power and energy.

Chance; Get out of a Parking Ticket Free

Fri, 06 Oct 2023 16:15:39 GMT

Despite the nominal fee of a parking ticket which is often cheaper than most parking garages it is still frustrating to walk back to your vehicle to see the glaring orange ticket stuck on your windshield. Wouldn’t it be great if you could somehow get out of the parking ticket? There may be hope, continue reading.

Even some of the members of the Massachusetts legislature have been the victim of a pesky parking ticket at least once in their lives. On June 14, 1949, legislature was prompted to amend G.L. c. 90, § 20A, pertaining to non-criminal dispositions of parking violations, to include a provision whereby the parking clerk shall dismiss the charge without payment of any fine if it is the first violation committed by the person in a particular city or town in the calendar year.

Therefore, if it is your first parking ticket for the year in any given municipality you may be better off disputing the violation. Bring a copy of the following statute with you and point to the second sentence in the fifth paragraph:

https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXIV/Chapter90/Section20a

The statute reads “If it is the first violation subject to this section committed by such a person in a particular city of town in the calendar year, the parking clerk shall dismiss the charge without the payment of any fine;” Unfortunately, the next sentence goes on to say that if the City or Town has adopted a schedule of fines by municipal rule then this provision will not apply. Best of luck to you.

What is Basic Estate Planning?

Fri, 06 Oct 2023 16:08:31 GMT

The basic estate plan recommended to every person at least eighteen years of age or older consists of a Last Will and Testament, Health Care Proxy, Durable Power of Attorney and a Declaration of Homestead.

Last Will and Testament

A Last Will and Testament is commonly known as an instrument setting forth the final distribution of a person’s property including who will receive a distribution and in what share or amount. A Last Will and Testament is much more. A Will is in essence your last words, for the purpose of informing your loved ones your last desires including burial requests, distributions of your property and how any debts are to be paid. A Will is flexible allowing for distributions in exact proportions per person, specific bequests of items to persons and at the same time can be broadly stated that anything not mentioned specifically will go to a person or multiple persons. Persons naturally entitled to a share of the estate under the laws of the Commonwealth (a.k.a. Intestate Succession) may be specifically disinherited in a will. An often overlooked use of a will is the distribution of anatomical gifts, known as body and tissue donation. Further, a Will can appoint trusted individuals as legal guardians over your minor children and loved ones affected by incapacity, disability and mental disease.

Health Care Proxy

A Health Care Proxy is a legal instrument authorized by Mass. Gen. Laws ch. 201D, § 2, appointing a legal agent to make medical decisions on your behalf in the event you are incapacitated or unable to. A Health Care Proxy is a proactive device that becomes effective when medical treatment is imminent and you are unable to communicate whether or not you want the treatment to be done. A Health Care Proxy is flexible allowing for piecemeal choosing of medical treatment and medicines that you would be interested in avoiding. Having a Health Care Proxy in place avoids the necessity of having a loved one petition the probate court for a guardianship which is much more expensive to obtain and manage. Further, a Health Care Proxy can be drafted to avoid problems associated with a third party agent obtaining confidential healthcare information under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). A Health Care Proxy is often accompanied with an informal document known as a “Living Will, Advance Directive or Personal Wishes Statement.” This document sets forth the types of medical treatment and medicines you do or do not wish to occur in the event you become terminally ill or unconscious. Massachusetts law does not recognize such documents; therefore, they are not legally binding upon your agent and doctors. Regardless, they are helpful as guidance to your agent in understanding of your wishes regarding life-prolonging measures. Common examples include artificial nutrition and hydration, pain medication and orders to not resuscitate.

Durable Power of Attorney

A Durable Power of Attorney is a legal instrument authorized by Mass. Gen. Laws ch. 190B, § 5-501, appointing a legal agent (a.k.a. Attorney-in-fact) to make financial and legal decisions on your behalf in the event you are incapacitated or unable to. A Durable Power of Attorney is a proactive device that can be drafted to become effective immediately upon execution or once you become disabled or incapacitated and unable to make decisions on your own. An Attorney-in-fact will make decisions regarding your business affairs, banking, property and further estate planning if necessary. Although most people find it hard to imagine giving the authority to a person to handle their finances, it is necessary in the context of an unfortunate status of incapacity. Foremost, the designated Attorney-in-fact should only be a trusted and responsible person. A Durable Power of Attorney can be drafted in many ways giving the Attorney-in-fact specific limited powers over certain matters, such as only managing a bank account and bill payment or the power to manage all financial matters on your behalf.

Declaration of Homestead

A Declaration of Homestead is a legal instrument authorized by Mass. Gen. Laws ch. 188, that protects a person’s home from attachment, execution and forced sales related to certain unsecured creditor claims, debts and judgments. The most common examples are judgments from lawsuits and credit card debt. Any person who owns a home and occupies it as their principal residence receives automatic protection (a.k.a. exemption) for $125,000.00. Any person who owns a home and occupies it as their principal residence may increase their protection amount to $500,000.00, by filing a written Declaration of Homestead at the Registry of Deeds in the county where the property is located. There is a special Homestead Declaration for the elderly and disabled which may offer higher protection amounts. Property owned by a Trust may be eligible for homestead protection.

Under the Homestead law a “home,” includes a single family home, a 2-4 unit family home, manufactured home, condominium unit, cooperative housing unit, and the proceeds from a house insurance policy against fire or other casualty loss.

Homestead protection is not absolute and does not protect against the following “exempted debts,” including debts and encumbrances existing prior to the filing of the Homestead, federal, state and local taxes and liens including (Medicaid benefits), mortgages, probate court executions for spousal or child support, court executions regarding actions in fraud, mistake, duress, undue influence and lack of capacity, and attachments of land not owned by the owner of the homestead.