Marblehead’s Board of Health has powers unlike virtually any other local board or commission in Massachusetts, a public health attorney told members Monday night — including the authority to adopt regulations that carry the force of state law.
Michael Hugo of the Massachusetts Association of Health Boards spent more than two hours walking the board through its legal authority, the Open Meeting Law, public records requirements and other rules governing local health boards.
Hugo emphasized that he was providing legal education, not legal advice, and told members to consult town counsel on specific legal questions.
But his central message was clear: Boards of health occupy a unique position in Massachusetts municipal government.
When a board of health adopts a regulation, Hugo said, “that regulation has all of the power and force of a state statute.”
Later, discussing the importance of other municipal officials understanding a health board’s role, Hugo put it more succinctly: “No one else has that power.”
However, Hugo told the Current on Monday that “just because you can, doesn’t mean you should,” referring to the Board of Health exercising the full extent of its power.
“There is a role for the Board of Health, but I don’t think it should be in enforcement,” Hugo said. “The Board of Health can take a more constructive role from a human services standpoint. Maybe the Board of Health should be looking into available grant programs,” to combat underage drinking.
Hugo added: “The role of the Board of Health is better spent really trying to find services that are available and maybe host workshops, get statistics, run surveys.”
A warning about Facebook
With that authority, Hugo said, comes a need for caution — particularly when board members communicate outside public meetings.
He offered a pointed warning about Facebook after the discussion turned to Board of Health member Tom McMahon posting about board business on social media.
Asked whether members should use Facebook to educate residents about matters discussed by the board while leaving their personal opinions out, Hugo said the best practice is to limit comments to matters the board has already acted on and that are no longer under consideration.
Members can explain a vote and the board’s reasoning, he said, but they need to be “very, very careful” because online exchanges can potentially create an Open Meeting Law problem.
Then he offered simpler advice.
“You guys should just not post on Facebook. It’s just better off not,” Hugo said.
Centuries of authority
Hugo traced the unusual authority of local boards of health back centuries. Massachusetts’ first board of health was established in Boston in 1799, with Paul Revere as its first president.
That history, Hugo said, eventually led to broad powers being placed in the hands of local health boards.
Much of that authority comes from Chapter 111 of Massachusetts General Laws. Hugo pointed specifically to Section 122, which requires boards of health to investigate nuisances that, in the board’s opinion, may be harmful to public health.
If a board determines something constitutes a public health nuisance, Hugo said, it has an obligation to act. Such action should be health-based, evidence-based and carefully tailored, particularly after a public hearing.
Open Meeting Law
Hugo also cautioned members about the Open Meeting Law, particularly when multiple members attend another board’s meeting or communicate outside a posted meeting.
He recalled attending a Select Board meeting while serving on the Framingham Board of Health. Because the health board had not posted its own meeting, members could not respond when they believed Select Board members were incorrectly describing the Board of Health’s authority.
Hugo said he hopes Marblehead Select Board members watch the portion of Monday’s meeting dealing with health board authority “because it’s unique.”
“No one else has that power,” he said.
Hugo said public health officials are often called upon to make unpopular decisions, from closing restaurants to imposing health restrictions, and that independence is one reason boards of health have been given unusual authority.
“The Board of Health is there to make the unpopular hard decisions at times,” he said, adding that “no one else is there to protect the public health.”
Hearing from the public
Hugo also addressed public participation at meetings. When boards are considering health regulations under Chapter 111, Section 31, he said, members should hear from residents — not simply because it can protect the board from criticism but because the public may provide information members have not considered.
During his years chairing the Framingham Board of Health, Hugo said, he learned from residents who spoke at meetings.
“I listened, and I learned things from the public,” he said. “They knew things that I had never even thought about on topics that I thought I knew everything about.”
Hugo also confirmed that a Board of Health may censure one of its own members, though a censure cannot strip that member of voting rights or otherwise formally discipline them.
The question was particularly relevant in Marblehead after the board voted earlier this month to censure member Tom McMahon over his conduct toward a resident at an Aug. 24 meeting.
“Your instincts were absolutely right,” Hugo told the board. “You can do that.”
