THE COMMONWEALTH OF MASSACHUSETTS OFFICE OF THE ATTORNEY GENERAL ONE ASHBURTON PLACE BOSTON, MASSACHUSETTS 02108 Maura HEALey TEL: (617) 727-2200 Arrorney GENERAL arirwrnase gaviaan August 15, 2022 OML 2022 - 152 Brian Miksie Chair, North Adams Planning Board 10 Main Street North Adams, MA 01247 By email only: planningboard@northadams-ma.gov RE: Open Meeting Law Complaint Dear Mr. Miksie: This office received a complaint from Jennifer Barbeau, Marie Harpin, Diane Gallese~ Parsons, Alice Cande, and Thomas Cary on May 12, 2022, alleging that the North Adams Planning Board (the “Board”) violated the Open Meeting Law, GL. ¢. 30A, §§ 18-25. The complaint was originally filed with the Board on or about March 22, 2022. and you responded to the complaint, on behalf of the Board, by letter dated April 26, 2022.! The complaint alleges that the Board failed to conduct roll call votes during its March 14, 2022, meeting in which all nine Board members participated remotely.” We resolve this matter by informal action, in accordance with 940 CMR 29.07(2)(a), afier reviewing the original complaint, the Board's response to the complaint, the complaint filed with our office requesting further review, and the notice and minutes of the meeting held on March 14, 2022, as well as a video recording of that meeting.’ We find that the Board violated the Open Meeting Law in the way alleged. 4 We remind the Board that the Open Meeting Law requires that within 14 business days of receipt of a complaint, the public body must meet to review the complaint’s allegations; take remedial action, if appropriate; send to the complainant a response and a description of any remedial action taken; and send to the Attomey General a copy of the complaint and a description of any remedial action taken, G.L. ¢. 30A, § 23(b); 940 CMR 29.0565). 2 The Board states that the Open Meeting Law complaint form was unsigned and undated. We disagree. Attached to the complaint form was a document that contained the name, address, contact information and signature of each complainant, as well as the date that each complainant signed the form. A video recording of the Board meeting held on March 14. 2022, is available at bttps/'us02wweb.200m.usiree/play/Z5 TkChivV8jkimP23E6z2sug)EKSYrqCDaRdB TeOprsnagL FjAMQIQbY-On June 16, 2021, Governor Charles Baker signed into law An Act Relative to Extending. Certain COVID-19 Measures Adopted During the State of Emergency, Chapter 20 of the Acts of 2021 (“Chapter 20”). Section 20 of Chapter 20 extended the remote meeting provisions established in Governor Baker’s March 10, 2020, Order Suspending Certain Provisions of the Open Meeting Law, G.L. c. 30A, § 20 (the “Executive Order”).4 The Executive Order temporarily suspended the requirements under the Open Meeting Law and the Attorney General’s Open Meeting Law regulations that a quorum of a public body, including the chair, be physically present at the meeting location and allows all members of a public body to participate in a meeting remotely, provided that the public body provide “adequate, alternative means” of public access. See Executive Order at § 1; Chapter 20, § 20(b). Alll other provisions of the law and regulations regarding remote participation remain in effect, including the requirement that “[ajll votes taken during any meeting in which a member participates remotely must be by roll call vote.” 940 CMR 29.10(7)(¢), On March 14, 2022, the Board held a meeting in which all nine Board members participated remotely. However, votes taken during this meeting were not conducted by roll call vote. The Attomey General’s Regulations require that, “all votes taken during any meeting in which a member participates remotely must be by roll call vote,” even unanimous votes. 940 CMR 29.10(7)(c); see OML 2016-132; OME 2015-145. Accordingly, because the Board failed to conduct roll eall votes during the March 14, 2022, meeting, we find that the Board violated the Open Meeting Law. We commend the Board’s commitment to ensure future compliance. Although not specifically raised in the complaint, we note that the minutes of the March 14, 2022, meeting do not appear to accurately record the votes that were taken. Specifically, with respect to the vote that was taken on the special permit requested by Rustin Kluge for an outdoor marijuana cultivation establishment on Ashland Street, the minutes record the vote as “9 Yeas and 1 Nay.” However, the Board is only a nine-member public body. The Open Meeting Law requires that a public body “create and maintain accurate minutes of all meetings, including executive sessions, setting forth the date, time and place, the members present or absent, a summary of the discussions on each subject, a list of documents and other exhibits used at the meeting, the decisions made and the actions taken at each meeting, ineluding the record of all votes.” G.L. c. 30A, § 22(a). We encourage the Board to revise its minutes to accurately reflect the votes that were taken during the meeting. For the reasons stated above, we find that the Board violated the Open Meeting Law by failing to conduct roll call votes during its March 14, 2022, meeting. We order the Board’s immediate and future compliance with the law’s requirements, and we caution that similar future violations could be considered evidence of intent to violate the law. sfNGOBIL jwhblfl d2ejR OrfdW9kxMAACqqOQ?starTime=164729439 10008 x zm riaid-olul_H_ESAG3KQVP 7_WNOw.1659716316188.57074203410bf8¢895328e4db85617698 x_zm_rhtaid23 (using passcode -X¢z569). “These provisions have since been extended until March 31, 2023. See Chapter 107 ofthe Acts of 2022. “Open Meeting Law determinations may be found at the Atiomey General's website, htips:/www. mass govithe- opensmeeting-law.‘We now consider the complaint addressed by this determination to be resolved. This determination does not address any other complaints that may be pending with our office or the Board. Please feel free to contact our office at (617) 963-2540 if you have any questions regarding this letter. Sincerely, bene KeryAnne Kilcoyne Assistant Attomey General Division of Open Government ce: Jennifer Barbeau — By email only: Marie Harpin — By email only: Diane Gallese-Parsons ~ By email onl Alice Cande ~ By email only: Thomas Cary This determination was issued pursuant to G.L. c. 30A, § 23(¢). A public body or any member of a body aggrieved by a final order of the Attorney General may obta al review through an action filed in Superior Court pursuant fo G.L. c. 30A, § 23(@). The complaint must be filed in Superior Court within twenty-one days of receipt of a final order.