The Open Meeting Law (OML)
The democratic process depends on the public having knowledge about the considerations underlying governmental action. The Open Meeting Law therefore requires that most meetings of public bodies be held in public. If you have questions about the Open Meeting Law, you may contact the Division of Open Government at (617) 963-2540 or email@example.com. (From here)
The March 2010 Guidance for Special Education Parent Advisory Councils says that the Open Meeting Laws “apply to PAC meetings since the PAC is considered an advisory council to the school committee, a governmental body.” This is not a hard and fast rule, and appears outdated.
Basically, if you are a “public body” (we are kind-of sort-of as an advisory council to a government body, the school district) you must have a level of transparency and follow certain laws. Your meetings must be posted to the public certain ways, open to the public, meeting minutes made available, etc.
(All of the following information was gathered in June 2017 from talking with the AG office and reading their website.)
Are Special Education Parent Advisory Council (“SEPAC”) groups public bodies subject to the Open Meeting Law?
While a SEPAC itself is generally not a public body subject to the Open Meeting Law, the leadership group may be a public body subject to the Open Meeting Law. Massachusetts law requires that membership in a school’s SEPAC be offered to all parents of children with disabilities and other interested parties. See G.L. c. 71B, § 3. In many cases, the SEPAC establishes or elects a leadership or governing committee. That group of elected or appointed officers will likely constitute a public body under the Open Meeting Law, and it is therefore advisable that such groups comply with the Open Meeting Law’s requirements. (From here)
That says that the SEPAC board members will likely constitute a public body. So it is not clear from that if we do, but it shows that sometimes a SEPAC will not constitute a public body. Hence we continue.
… groups that do not take any collective action are not public bodies. For example, where a public official invites all interested persons to attend a meeting and provide feedback on an issue of concern, but no votes will be taken, or report produced, and there is no required number of attendees, such focus groups generally will not be considered public bodies.
That describes our SEPAC perfectly and is one reason that a SEPAC may not constitute a public body. It is the reason we are not a public body.
There is no need to go on, since the rest is moot for us. But let’s look anyway. Continuing with the same document:
Once you’ve determined that a group is a public body, the next step in figuring out whether the Open Meeting Law applies is to look at what the group is doing, specifically whether it’s deliberating.
Let’s look at the legal definition of “deliberation” …
n. the act of considering, discussing, and, hopefully, reaching a conclusion, such as a jury’s discussions, voting and decision-making. (From here)
Deliberation is an act of examining, considering or discussing the reasons for and against a measure. Deliberation includes collective discussions and exchange of preliminary facts. It is through deliberation that a party analyzes whether a thing should be done in a particular way or not. Law presumes that all acts performed are done with due deliberation. (From here)
Again, we can stop here because, as defined above, our SEPAC Board does not deliberate. We may have “a meeting and provide feedback on an issue of concern, but no votes will be taken [by the board], or report produced, and there is no required number of attendees …”
So we do not come under the OML. But, if we did, which we don’t … could we have a closed Facebook group? The concept of a “meeting” turns into the question … is a quorum of the body’s members deliberating?
Fewer than a quorum of a body’s members can discuss matters within that body’s jurisdiction without that communication being a deliberation. So if three members of a seven-member committee, for instance, decide to meet to discuss committee business, that would not be a deliberation, provided they’re not a subcommittee. (ibid)
If we were a public body (we are not) and if we were deliberating (which we don’t) are a quorum of the members involved? By way of an example given in the aforementioned OML FAQ:
EX1: A public body has seven (7) members, therefore a quorum is four (4) members. If the same seven-member public body has two (2) vacancies, then there are only five (5) members serving on the public body. By default, a quorum is still measured as four (4) members.
We have twenty-six positions (two at each of the nine schools, three for BEEP, one for OOD, two secretaries, two chairs) so our quorum is fourteen Board members. We have eleven Board members in our Facebook group. Hence, it is not possible to have a quorum deliberating via our Facebook group at this point in time. Not that it matters because we are not a public body nor do we deliberate.
If, in fact, we were a public body (we are not) (why are you still reading?), and if we were deliberating (we do not) then, according to our OML FAQ friend:
May members of a public body communicate with the public through social media platforms such as Facebook, Twitter, and webpages?
Yes, members of public bodies may communicate with members of the public through any social media platform. However, members of public bodies must be careful not to engage in deliberation with the other members of the public body through such communications. If a member of a public body communicates directly with a quorum of the public body over social media platforms such as Facebook or Twitter, that communication may violate the Open Meeting Law. Public body members should proceed with caution when communicating via these platforms.
I could go on, but won’t.
I will say that in my humble opinion we should, as good practice, take guidance from the OML. Our meetings should be posted to the public to the same extent, but that takes cooperation with the Town (working on it). We should take minutes and make the minutes and other materials available to the public. But that is one man’s opinion.
As a group we may decide that we do want to become a “public body” and “deliberate” on “issue(s) of concern, take votes among the Board only, produce a report, and require a number of attendees.” But to decide to do that, we would have to deliberate (which we don’t do) …
(Posted by Craig on 6-14-2017)