The rise in COVID-19 cases due to the Omicron variant and the possible need for a town-wide mask mandate late last year was not the type of “emergency” that permitted the Marblehead Board of Health to meet without providing the 48 hours’ notice required under the state’s Open Meeting Law, the Division of Open Government in the Attorney General’s Office ruled June 23.
The division also faulted the board for not doing more to ensure public access once it began to realize that a meeting two days later, also to discuss the mask mandate, had attracted more people than the 300 its Zoom account could accommodate.
The AG’s Office has ordered members of the Board of Health to attend an Open Meeting Law webinar training within 90 days and admonished the board that any similar transgressions in the future would be considered intentional violations of the law.
The June 23 letter from Assistant Attorney General Sarah Monahan culminated a process initiated when the Division of Open Government received two separate complaints related to the board’s meetings of Dec. 27 and 29.
With respect to Mark Pelletier’s complaint about inadequate notice, the AG’s Office found the board had posted notice of its virtual meeting at 7:30 p.m. Dec. 27 less than nine hours earlier, at 10:45 a.m., which resulted in low attendance from the public, despite the hot-button topic of a mask mandate on the agenda.
The Open Meeting Law, in G.L.c. 30A, §20(b), does have a narrow exception, which permits public bodies to skip the 48-hour notice in cases of emergency. The law defines an emergency as a “sudden, generally expected occurrence or set of circumstances demanding immediate action.”
According to Monahan’s letter, the board believed the spike in the COVID-19 infection rate caused by the Omicron variant constituted just such an emergency, a conclusion it drew in part from G.L.c. 111, §31, which frees local boards of health from the requirement to hold a public hearing before issuing orders in response to emergencies.
But the Division of Open Government found that, regardless of whether a public hearing was required to impose the mask mandate, once the board decided to meet, it was required to follow the Open Meeting Law, and in this case, the rise in COVID-19 cases did not constitute an “emergency” as the Open Meeting Law defines that term, as the increase in cases had been foreseeable for several weeks and thus not “unexpected.”
The board also had not demonstrated why it could not have waited one more day to meet and vote on the mask mandate, which would have allowed it to comply with the Open Meeting Law, Monahan’s letter states.
Board of Health Chairman Todd Belfbecker said the failure to comply with the Open Meeting Law was a good-faith mistake.
“We believed it was an emergency; the Attorney General disagreed with our definition, and they told us we were wrong,” Belfbecker said.
Belfbecker said he and his colleagues welcome the opportunity to attend the webinar to reinforce their long-standing commitment to adhering to the requirements of the Open Meeting Law, which they have never willingly violated.
A doomed Zoom
Meanwhile, a meeting convened two days later, again to discuss the mask mandate was the focus of the complaint of resident Allen D. Waller (see related story).
Given the furor in Marblehead and elsewhere related to renewed mask mandates, the board should have known the Dec. 29 meeting would attract a significant crowd, the AG’s Office found.
Monahan’s letter suggests Health Director Andrew Petty may have been lulled into a false sense of security when he admitted everyone he saw in Zoom’s virtual waiting room and the meeting’s attendance climbed only to 297, still under the 300-person limit on the account, if barely.
“However, contemporaneous social media posts by members of the public indicate that some people could not join the meeting because the meeting was at capacity,” Monahan wrote.
In fact, what Petty may not have known is some potential attendees had been denied access even into the Zoom waiting room, Monahan added.
“Although the Board may not have been aware that some members of the public were prevented from being admitted into the meeting, the Board should have investigated when the number of participants — 297 — came so close to the meeting capacity of 300,” Monahan wrote. “For a meeting that was foreseeably crowded, the Board did not make reasonable efforts to accommodate the overflow crowd.”
The AG’s Office found the Board of Health had not violated the Open Meeting Law in a third way Waller had suggested: Not having the chair conduct a “roll call” of the names of board members participating remotely.
For the Open Meeting Law’s purposes, displaying the board members’ names on screen fulfills the law’s transparency goals, Monahan explained.
Waller told Marblehead News he continues to believe the board’s actions in this respect violate the Open Meeting Law, noting a number of people participated in the meeting by phone and could hear the audio portion but not see the names and faces of the people on screen.
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