Who is a member?
Our members are the local governments of Massachusetts and their elected and appointed leadership.
Much of a Select Board’s work is done at public meetings. This is where decisions are made, policies are discussed and set, and the public’s business is conducted. The board must adhere to the Massachusetts Open Meeting Law, which, among other things, establishes rules for running a proper meeting in an open and public manner.
“The purpose of the Open Meeting Law is to ensure transparency in the deliberations on which public policy is based. Because the democratic process depends on the public having knowledge about the considerations underlying governmental action, the Open Meeting Law requires, with some exceptions, that meetings of public bodies be open to the public. It also seeks to balance the public’s interest in witnessing the deliberations of public officials with the government’s need to manage its operations efficiently.”
– Open Meeting Law Guide, published by the Attorney General (2018)
Within two weeks of election or appointment, or the taking of the oath of office, whichever occurs later, all members of public bodies must complete a Certificate of Receipt of Open Meeting Law Materials, certifying that they have received the materials and understand the requirements of the Open Meeting Law and the consequences of violating it.
The Open Meeting Law1 must not be taken lightly. Running a good, lawful meeting is among the most important things a Select Board can do. When tough decisions have to be made by the board, it is certain that at least some residents are going to be unhappy with the outcome. That outcome will be far easier for even the most disappointed citizens to accept, however, if they see that the process that led to it was fair and legal.
The attorney general’s Open Meeting Law Guide includes the following important topics:
One particular topic to understand fully pertains to the executive session. The board may not simply enter into executive — or closed — session in an effort to exclude the public because it is discussing a sensitive topic. Most public business can and should be conducted in open session. Executive sessions should be the exception, not the rule. There are 10 specific reasons for which a board may enter into an executive session.2 The posted meeting agenda should reflect the expected need for an executive session and the reason for which. When questions arise, town counsel should be consulted for guidance. The Open Meeting Law and its executive session requirements apply to all public bodies, including subcommittees that are appointed by the Select Board.
The following are some recommendations, strategies and considerations for running effective meetings in the public arena.
The powers of the chair include preparing the agenda, leading the meeting and calling the agenda items, and recognizing others to speak. This gives the chair enormous control over the way a meeting is conducted. A good chair will make the effort to ensure that the other Select Board members are given an adequate chance to be heard. Being chair of the board does not mean forfeiting the right to vote or express an opinion. The chair must be careful, however, not to dominate the meeting.
The greatest challenge facing a chair is keeping the discussion moving forward. A delicate balance must be established, allowing members to express their views freely, but without getting bogged down in long-winded expressions of opinion. By addressing issues one at a time, in an orderly fashion, and by steering conversations away from irrelevant subjects or personality clashes, the chair can help to build consensus within the board.
The public and the press have a right to be present at any open meeting, but they do not have the right to participate unless the chair recognizes them or a matter before the board constitutes a legal hearing in which the public is permitted to comment. It is important to make every effort to have each issue fully understood, not only by board members but by everyone present.
While there should be a degree of flexibility in the way a board conducts its business, it is a good idea to set out general operating procedures in writing so that all members of the board understand the rules and comply with legal requirements. The objective should be to be fair, to maintain order, and to move the meeting along.
Select Board meeting agendas had virtually no legal significance prior to a major overhaul of the Open Meeting Law in 2010. Under the previous version of the law, the posting of a meeting simply had to say when and where the board would convene. Under current law, the required notice of a meeting must include “a listing of topics that the chair reasonably anticipates will be discussed at the meeting.” Note the imposition of personal responsibility for the chair.
In most towns, the responsibility for preparing the meeting agenda falls to the chair, often with help from professional staff, or to the town manager or other professional staff members. This task includes determining what issues will be up for discussion, what the order of items will be, and what will not appear on the agenda.
Select Board members should set a deadline by which they must receive all requests to have items appear on the agenda. Usually, the agenda is “closed” several days before a regularly scheduled meeting, to allow time for the agenda to be prepared and distributed. Generally, a chair will honor the request of any board member to have an item included on the agenda. If such a request is denied, however, a member can call for a vote of the board to instruct the chair to include the item on the agenda of the next meeting.
Many boards begin the agenda by approving the minutes of the previous meeting. This practice is recommended because it requires that the minutes be prepared promptly and that proper record keeping is maintained. It also reminds all members where they left off in the town’s business and what remains to be pursued.
It is good practice to group items on the agenda into the following three categories:
There is no legal requirement to state the time when any particular topic will be discussed, but doing so can be a useful tool to keep the meeting moving along. Some boards arrange the agenda so that items concerning the greatest number of participants and observers will be taken up first. As a courtesy to the attending public, it is advisable to schedule an executive session either at the beginning or end of the agenda.
Questions often arise as to what parliamentary rules should be followed in conducting meetings. Often mentioned are “Robert’s Rules of Order” or some other traditional guide. Municipal attorneys generally consider these traditional and general parliamentary guides more appropriate for fraternal organizations, religious groups, clubs and volunteer associations than for municipal government. Part of the reason Robert’s is not favored for municipal government is that it can restrict effective participation by the members of a board.
There is no statutory requirement that a meeting be conducted under a specific parliamentary guide. Boards are free to develop their own procedures as long as they comply with all applicable laws. Boards are free to adopt what rules they feel will best facilitate the public’s business.
In the absence of a specific guide or framework, the rule of common law would apply. Essentially, common law allows anyone to make a motion, anyone to second a motion, and anyone to speak on a motion. Motions require a majority vote unless the law calls for another quantum of vote.
A well-regarded, practical handbook is “Suggested Rules of Procedure for Small Local Government Boards,” published in 1998 by professor A. Fleming Bell III of the School and Institute of Government at the University of North Carolina. Bell’s principles, such as the following, still hold up today:
An agreed-upon procedure helps to maintain order and allows meetings to run smoothly. The following are some suggested rules meant to address various procedural issues that commonly arise at meetings. Boards are welcome to try these for a while and see if they work; if not, they may change them. These are just options, not requirements.
These general rules of procedure may be suspended by action of the board, and a failure to comply with the rules should not affect the validity of any action. This will help in instances where someone is challenging a board’s actions because the board did not strictly comply with its own rules. While compliance is important, government should not be hamstrung by what is often a technicality.
Most Select Board meetings are calm events, but controversial topics can cause a meeting to become heated. It is the responsibility of the chair to engage in lawful efforts to preserve decorum and prevent personalities, politics and personal attacks from interfering with the business of the meeting.
A Supreme Judicial Court decision in March 2023 [Barron v. Kolenda, 491 Mass. 408 (2023)] clarified, however, that a public body may not censure speakers based solely on incivility. In short, “discourteous, rude, disrespectful, or personal speech about governmental officials or governmental actions — is clearly protected” by Article 16 and Article 19 of the Massachusetts Declaration of Rights (as well as the First Amendment to the U.S. Constitution), and cannot be prohibited by policy. The decision reflects in part the notion that any policy wherein the public may praise but not criticize public officials is antithetical to the founding principles of the Commonwealth and the United States. While the court noted that “fighting words” — speech intended to incite violence by its hurtful, obscene or slanderous nature — are not protected, even deeply offensive speech such as anti-Semitic symbols and homophobic signs have rarely risen to the level of “fighting words,” which would allow the government to silence the speaker.
The following are some examples of challenging situations that a Select Board may face:
Some individuals may purposefully try to get a reaction from the board or individual members and then use that response to their advantage. Any record of the meeting could form the basis for an appeal or other legal action. Even if the board may be successfully defended, doing so is costly in terms of time and expense, and the case may well present the board in an unfavorable light to the court and the public.
Boards must resolve to treat all persons and matters fairly. It is also advisable to adopt a code of conduct for the Select Board (see the MMA Best Practice on this topic) so that all members are on the same page with respect to behavioral expectations of the board.
The MMA and MIIA have published a helpful Advisory Regarding Public Comment Sessions at Open Meetings. The MMA has also held two webinars on the implications of the SJC’s Barron v. Kolenda decision.
State law3 does permit a presiding officer to order a person to leave a public meeting for unruly conduct and, if he or she does not leave, to order a constable or other officer to remove the person from the meeting. While it may be tempting to do this at times, it is best not to, except under the most dire circumstances, and then only in consultation with legal counsel. Absent an inability to continue the business of the meeting (e.g., when a speaker or speakers refuse to abide by time limits or to be recognized by the chair before speaking), ordering someone removed from a meeting is fraught with the danger of a costly lawsuit and rarely worth the risk. There are several, better alternative steps a board can take. The best is to take a recess, after which the person rarely continues his or her unruly behavior. If the unruly behavior is related to public comment in an open forum or during a hearing, however, the chair is wise to allow the speaker to conclude before the recess. Another option is to call in a police officer to speak to the person about being disruptive, which usually has the effect of restoring calm. When all else fails, the board should consider adjourning the meeting to another date. While a board may not want to appear to have backed down due to someone’s conduct, the wiser path is to avoid a controversy.
There is no requirement under the Open Meeting Law to offer a public comment period during regular meetings, but many boards consider it a good practice to set a time for comments on non-agenda items before, during or at the end of regular meetings, and to set and enforce a time limit for speakers. A standing “public comment” agenda item allows residents to take comfort in knowing that if they wish to be recognized to speak about an issue that is important to them, they can be heard. This practice can involve risks, however. Sometimes people come to speak on matters about which the board has had no advance notice, resulting in time being spent on a matter that requires more information. The board may not deliberate on a topic that is not listed as an agenda item, so in most cases the issue will be rescheduled for a future meeting. In addition, during these “open mic” sessions, members of the public may engage in some of the rude, uncivil and sometimes personal attacks referenced above, without affording the board the ability to respond in real time. However, it can also be beneficial for the board to be restricted from engaging in dialogue insofar as it allows the chair to determine whether to address public criticism or comment at a future meeting rather than in the heat of the moment. While care should be taken to discourage speakers from defaming someone who may not have known in advance that they were going to be mentioned, such as a town employee, the Barron decision likely precludes a Select Board from censuring such statements.
Public comment sessions can be time consuming. Some boards that permit a public comment period require people to submit relevant information in advance, and then the discussion is scheduled if the board wishes to discuss the matter. Some boards count the people that want to comment during the public session and set a certain amount of time per person. If the allotted time is not enough, the person can ask to be included on a future agenda.
For more guidance on the Open Meeting Law, visit the Attorney General’s Division of Open Government website.
The Massachusetts Public Records Law states that all people have a right of access to public information. This includes the right to inspect, copy or have a copy of records provided upon the payment of a reasonable fee, if any.
Select Board members should be familiar with the law, and should understand what kinds of records are most likely to give rise to a public records request and the process a town must follow in response to such a request. They should also understand how to avoid running afoul of the law.
The Public Records Law broadly defines “public records” to include “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 Massachusetts governmental entity. Note that these include emails sent and received by Select Board members acting in their official capacity. Minutes of both open sessions and executive sessions are public records.
All Select Board members should read the Office of the Secretary of the Commonwealth’s comprehensive Guide to the Massachusetts Public Records Law (2022). The guide covers the several exemptions to the law, mostly pertaining to personal information or public safety. The Division of Public Records provides an “attorney of the day” to assist any person seeking information regarding the Public Records Law, at 617-727-2832 or pre@sec.state.ma.us.
One of the most important tasks of municipal officials is to conduct proper hearings in a fair and impartial manner. All public hearings are public meetings, but not all public meetings are hearings.
A hearing is a formal proceeding held in order to receive testimony from interested parties on a specific topic. The Open Meeting Law applies to hearings, but a hearing is often more involved than a general meeting, so there is a greater risk if it is not conducted fairly and properly. An improperly conducted hearing can be a source of liability as well as an embarrassing situation for local officials.
Public hearings require more advanced notice than regular meetings, and notice must be published in a local newspaper each of two successive weeks, the first not less than 14 days before the day of the hearing. State law outlines specific requirements for providing adequate notice.4
Some hearings are routine and non-controversial, such as hearings to issue annual liquor licenses, but some may be very sensitive, such as a disciplinary action against an employee. It is always advisable to consult with town counsel prior to a contentious hearing.
The Massachusetts Conflict of Interest Law is intended to draw a clear line between the public duties and the personal interests of public officials. Generally, public officials and employees are prohibited from using their position for any sort of personal benefit for themselves, their family, or their outside employer. Even a Select Board member who does not receive compensation is considered a “public employee” under Massachusetts law.
The State Ethics Commission has oversight and educational responsibilities with regard to the Conflict of Interest Law. The Ethics Commission seeks to “foster integrity in public service in state, county and local government, to promote the public’s trust and confidence in that service, and to prevent conflicts between private interests and public duties.”
The Ethics Commission has published a series of informative primers to help educate public officials on the various tenets of the law, including gifts and gratuities, nepotism, divided loyalties, holding a second public position, and former employees.
Consequences of noncompliance with the Conflict of Interest Law are significant, and actions approved by a board or community could eventually be overturned due to conflict issues. Depending on the circumstance, board members may recuse themselves from deliberation of an issue, or make a disclosure of the situation prior to discussion, which may allow them to participate. A Select Board member may always discuss a particular set of circumstances with town counsel to see if there is a potential conflict, and then take steps accordingly.
All municipal employees, including Select Board members, must undergo online training and testing on the Conflict of Interest Law within 30 days of taking office, and every two years thereafter.
The Ethics Commission is available to field questions from public officials and employees and to provide free legal advice regarding the applicability of the Conflict of Interest Law at 617-371-9500, or you may send the commission a request for written advice for a response within 30 days.
Bias exists when someone is so predisposed to accept or reject a matter that he or she cannot reasonably be expected to fairly and impartially adjudicate the matter. Everyone has some degree of bias, and not all bias is invalidating bias. Problems arise, however, when the public believes that a Select Board member is incapable of remaining impartial when required. Therefore, when speaking about a matter that could possibly come before the board in an adjudicatory proceeding, board members must be careful in their public pronouncements. Use general statements such as, “This is a very serious situation, and the board will hold a hearing on the matter to determine next steps. You are welcome to come speak at that hearing if you wish.” Select Board members should abstain from participating in a hearing if they are so predisposed that they are unable to fairly adjudicate a matter. It’s advisable to seek advice from town counsel on this topic on a case-by-case basis.
Government public relations can be defined as the practices that promote a favorable relationship with the public. Good public relations occur at many levels. What is said by a Select Board member, from casual conversations at the grocery store to contact with the news media, influences how people perceive the board and town government as a whole. A Select Board member is a symbol of town government and the focal point for people with a wide range of complaints and concerns.
One of the easiest and best public relations tools is simply being accessible. Being the conduit to local government is a key role of Select Board members. Select Board members should let the professional administrators know when and where they can be reached; at a minimum, there should be a number where messages can be left. It is critical that Select Board members make themselves available to speak and meet with citizens in a timely manner. Some boards find it useful to have members take turns being “on duty” to answer citizens’ questions during weekdays and weekends.
During the COVID-19 pandemic, many boards did not meet in person, and some continue to meet only remotely. As such, municipalities must adapt and embrace policies and practices that ensure that citizens are not only invited, but are able to participate in local government. The MMA has held webinars on municipal strategies for online and in-person engagement and resident engagement, and has adopted a Best Practice on Strategies for Boosting Community Engagement and a Best Practice on Strategies for Choosing a Successful Meeting Format.
Citizens often form their impressions about town government from their interactions with town employees who answer phones and conduct business face-to-face with the public. While the Select Board cannot monitor the behavior of every town employee, the board can insist on courtesy from town staff and stress with department heads the importance of good public relations.
Some larger towns have standardized their procedures for processing inquiries and complaints. When a citizen calls, the person taking the call refers the matter to the appropriate town employee for a reply and logs each call so that department heads, the professional administrator and the Select Board can review the types of calls that are being received. Such a system enables the Select Board to detect patterns of complaints and to follow up to make sure problems are being taken care of efficiently and effectively.
Citizen complaints are often about matters that are beyond the Select Board’s control, but this does not relieve the board of responsibility to provide information and offer assistance. Sometimes, handling complaints involves nothing more than lending a sympathetic ear. Returning phone calls promptly and listening patiently can often prevent a minor complaint from escalating. Some constituent problems can be solved with a quick call to the right town official or employee. When the town cannot solve a problem, citizens should be informed immediately and directed to the best resource.
Complaints about specific town officials or employees are particularly troublesome. It is important to have a written board policy for dealing with complaints about individuals, in order to ensure that everyone is treated fairly. First, the board should make it a policy not to consider this type of complaint at an open meeting as an agenda item — at least until it has been discussed with the party directly concerned and a preliminary investigation has been conducted. This gives the board a chance to weed out frivolous complaints. If the complaint requires further action, it should not be put before the Select Board until the subject or subjects of the complaint have been given prior notice and afforded an opportunity to present their side of the story. This is the only way to avoid the appearance of a serial drama being played out before the board and in the media.
In general, when a complaint requires action, the person bringing the complaint should be given a reasonable estimate of the time needed for resolution, and progress reports should also be given.
On rare occasions, a Select Board member may receive a threatening call or a call from a lawyer who may be planning an action against the town. It is best to keep these conversations brief and immediately consult town counsel for guidance.
Social media can be an effective and powerful communication tool in local government, but it can also cause problems with respect to the Open Meeting and Public Records laws. It is important for cities and towns to adopt and actively use some forms of social media, since it is how many people receive much of their information and news. As a general rule, Select Board members must keep their personal, professional, and campaign accounts distinct and separate.
The MMA recommends building a strategy around using social media, and has developed a Best Practice recommendation with respect to creating a policy. Other helpful resources include the article “To Tweet or Not to Tweet? Social Media, Public Records and the Open Meeting Law” from the MMA’s Municipal Advocate magazine, an MMA webinar about social media best practices, and “The Opening Meeting Law and Social Media – Potential Pitfalls” from KP Law.
Dealing with the media can be stressful for Select Board members, but it is a necessary and important part of the job. Local media outlets can be a huge asset in disseminating important municipal information, but some can pursue sensationalized stories that towns will want to weigh in on. It is often wise to designate one official spokesperson for the town on a given topic, so that the information given out is consistent. Select Board members must be prepared to deal with reporters for mundane stories as well as the unexpected. The Institute of Local Government offers tips for newly elected officials on dealing with the media.
Reporters have a job to do. They are paid to be inquisitive and skeptical. It may not be possible to influence what reporters choose to write about, but town officials can help make sure the reporting is balanced and accurate by providing reporters with the information they need. In dealing with the media, honesty is always the best policy. When reporters are given reason to trust, they will usually be fair in their treatment.
Except for decisions made during an executive session allowed under the Open Meeting Law, all decisions of a board must be made at meetings the public is invited to attend and observe. Hopefully, board meetings are covered by seasoned reporters who understand town government. Often, however, boards must deal with inexperienced reporters who have little background in local government. The only way to be sure that a reporter understands what was discussed at a meeting is to seek him or her out after the meeting and explain the issue or problem in more detail.
Even if board meetings are not routinely covered by a reporter, the news media should not be neglected. If a matter of public interest is going to be discussed at a meeting, it’s a good idea to inform the local editor or reporter. Press releases, press advisories, and printed statements are all options for notifying the media of an important action.
While it is fine to be friendly with members of the media, a Select Board member is a public official. Anything said at a meeting, or in a conversation with a reporter, is presumed to be “on the record.” There is no right to go “off the record” during the open portion of any public meeting, nor can anyone expect a reporter to disregard any comments made at a meeting.
In a private conversation, a Select Board member may want to brief a reporter on the history of an issue without being quoted. This is acceptable, provided the reporter agrees to any terms before the conversation begins. To eliminate confusion, it is important to first set out explicit ground rules with the reporter. Terms like “off the record” or “for your background only” may mean different things to different reporters, so it’s important to clarify these terms if they are used. In some cases, it may be a good idea to direct a reporter to contact certain additional sources before using information provided privately “for background.”
When speaking on the record, words should be chosen carefully. While it is acceptable to ask a reporter to read back comments, it is often not possible to take back or reword something that has been said. No source can demand to read a reporter’s story before it’s published. Reporters take their constitutional rights seriously, and they will resent anything that implies censorship.
A cardinal rule in successful media relations is to tell the truth, even if the truth is, “I don’t know.” When possible, avoid answering questions with a terse “no comment,” since it may suggest that there’s something to hide. If town counsel has advised against making public statements about a pending lawsuit, for example, the reporter should be told such. Inquiries like these should be referred to town counsel, who may make a statement that would be informative without disclosing confidential information or strategy. If the board has not reached consensus on how to deal with a problem, the reporter should be told that the issue is being discussed, but no decision has been reached. There is no requirement that a public official answer every question asked by a reporter (or anyone else). Select Board members always have the option of promising reporters that they will be notified when a decision about a certain issue is made.
Reporters often want information before it is appropriate to release it. Select Board members should not give in to pressure to make a comment that may be inappropriate and regretted later. The story, however, will often be written whether officials like it or not, and regardless of whether they’re ready to talk. In certain situations, it may be better to release incomplete information than to have it leak out. Such information should be identified as incomplete but the best available at the time.
When a reporter makes a mistake in a story, it is worthwhile to discuss the situation with the reporter, respectfully, and clarify the information so that the error is not repeated in subsequent stories. If a real injustice has been done, a letter should be written to the editor, or a statement should be issued clarifying the information. If a Select Board member believes that he or she is being mistreated by a reporter, one approach may be to refuse to deal with that reporter and to discuss the problem with the reporter’s editor and/or publisher.
Occasionally, a town may be the site of an event so unusual or sensational that reporters from all over flock to cover it. Once the national media have converged, they are almost impossible to manage. Reporters will be relentless in seeking out information from any and all sources. Select Board members need to be prepared to cope with a sudden invasion of reporters who want to take up valuable time just when the town is trying to respond to a crisis.
If the event is something that the Select Board does not want to discuss in detail (e.g., a town employee has been arrested), the best approach is to prepare a carefully worded written statement and circulate it promptly to the media. A spokesperson should be identified to read the statement on radio and television without being tempted to add his or her own comments. Another effective technique is to hold regular media briefings at a central location, such as Town Hall, where there is room for reporters and television crews to set up their equipment. Reporters are much less likely to stray into inappropriate areas if they know they can get complete, reliable information right where they are.