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The Massachusetts Attorney General has finalized a new
regulation that will make it easier for the Attorney General to
impose monetary penalties against public body members who violate
the Open Meeting Law.1 Specifically, the new regulation
broadens the scope of conduct that will be considered evidence of
an "intentional violation" of the Law. The final
regulation was filed with the Secretary of the Commonwealth on
August 21, 2012 and will be published in the State Register on
September 14, 2012.
Under the new regulation, evidence of an "intentional
violation" of the Open Meeting Law shall include a showing
that a public body or public body member "(a) acted with
specific intent to violate the law; (b) acted with deliberate
ignorance of the law's requirements; or (c) was previously
informed by receipt of a decision from a court of competent
jurisdiction or advised by the Attorney General ... that the
conduct violates [the Open Meeting Law]."2 This new
regulation expands the scope of violations that will be considered
"intentional," as the previous regulation did not include
provisions for "specific intent" or "deliberate
ignorance" on the part of public body members.3
Under the new regulation, public body members who deliberately
ignore their obligations under the Open Meeting Law will be treated
as if they had specifically set out to violate the Law.
The new regulation's broad definition of "intentional
violation" is of critical importance for public body members
because the Attorney General may only impose monetary penalties
under the Open Meeting Law for intentional violations of the
Law.4 Since the new regulation expands the scope of
violations that will be considered "intentional," the new
regulation increases the likelihood that monetary penalties will be
imposed against public body members. In fact, the new regulation
makes it clear that such monetary penalties may be imposed against
public body members even if those members did not know that their
conduct would violate the Open Meeting Law. Such ignorance will be
considered irrelevant if the public body member deliberately
remained uninformed about the requirements of the Law. Because of
the heightened obligation to fully understand the requirements of
the Open Meeting Law, all public body members are encouraged to
seek legal advice on the Open Meeting Law before the new regulation
goes into effect on September 14, 2012. Seeking such legal advice
may avail public board members of a valuable defense against the
imposition of monetary penalties.5
Mintz Levin has been working with clients to analyze current
practices and ensure compliance with the Open Meeting Law. We can
help conduct trainings and develop or review policies.
5 G.L. c. 30A, § 23(g) provides that "[i]t
shall be a defense to the imposition of a penalty that the public
body, after full disclosure, acted in good faith compliance with
the advice of the public body's legal counsel."
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