Murphy, Hesse, Toomey & Lehane, LLP
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The Municipal Modernization Act (“Act”) created a number of changes to various municipal laws – including finance, procurement, retirement, and public safety laws. However, the Act requires local action before certain provisions can take effect.
This client alert details the changes to the Massachusetts Municipal Public Records Law.
At the 2016 state election, Massachusetts voters approved Question 4, which regulates marijuana for recreational (i.e., non-medical) purposes. A consequence of Question 4 is that the production, possession, sale and consumption of marijuana – in certain amounts and under certain circumstances, for persons aged 21 years and over – will become legal under Massachusetts law.
Governor Baker recently signed House Bill 4565, “An Act modernizing municipal finance and government” (the “Act”). This Act made changes in many areas of law affecting cities and towns, including procurement, insurance, local taxation, municipal finance, and employee benefits, among others. The Act amends provisions of more than 250 different sections of the Massachusetts General Laws and represents a major overhaul of municipal-related laws in Massachusetts.
On June 3, 2016, the Governor signed Chapter 121 of the Acts of 2016 – “An Act to Improve Public Records” – into law. The consequence of this legislation is to dramatically overhaul the requirements for responding to public records requests, across all levels of government. Municipalities and covered government agencies will need to respond and comply with the Public Records Law for requests, without delay – or risk having to pay the attorney’s fees and litigation costs for successful requestors and punitive damages, and waiving the ability to charge requestors fees for responding.
“An Act for the Humanitarian Medical Use of Marijuana” (“Medical Marijuana Act”), approved by voters at the November 2012 election, contemplates the establishment of medical marijuana treatment centers (also known as registered marijuana dispensaries, or “RMDs”) in the Commonwealth of Massachusetts. Through its regulations, the Massachusetts Department of Public Health has established an application and registration process for RMDs
Work product includes materials that are “prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney . . . .)” Mass. R. Civ. P. 26(b)(3). Examples of work product are investigatory or consultant studies or reports, as well as documents containing the mental impressions of an attorney or consultant. In General Electric Corp. v. Department of Environmental Protection, 429 Mass. 798 (1999), the Supreme Judicial Court previously held that work product was not exempt from disclosure under the Public Records Law. However, in a recent decision (DaRosa v. City of New Bedford, SJC-11759, 2015 WL 2258628 (May 15, 2015)), the Supreme Judicial Court revisited General Electric and held that, in certain cases, work product may be considered exempt under the Public Records Law. The Supreme Judicial Court also clarified the scope of what is regarded as the “derivative attorney-client privilege.”
On March 2, 2015, the Appeals Court issued a decision in a case handled by Murphy, Hesse, Toomey & Lehane, LLP, which significantly impacts communities across Massachusetts. In Celco Construction Corp. v. Town of Avon, Appeals Court No. 13-P-1880 (slip op.) (March 2, 2015), the Appeals Court upheld the Town of Avon’s decision to deny an equitable adjustment claim for latent defects where the bidder had engaged in so-called “penny bidding” - artificially pricing a particular bid category at one cent ($.01) in order to achieve a bidding advantage. The Court held that the “indeterminate” amount of the item does not automatically give rise to a latent defects claim where the nature of the work was contemplated and the awarding authority was clear that only the amount was unknown.”
Proposed in the wake of gun violence incidents nationwide, on July 31, 2014, the Massachusetts Legislature passed “An Act Relative to the Reduction of Gun Violence” (Act). The Act, which is now awaiting the Governor’s approval, will make significant changes to the authority of local licensing authorities over firearms licensing.
May 2014 – MHTL prevailed in an arbitration involving a surrounding community agreement on behalf of the Town of Longmeadow, Massachusetts (“Longmeadow”), which was the first surrounding community agreement upheld by the Massachusetts Gaming Commission. Under its surrounding community agreement, Longmeadow will receive in excess of $5 million from an applicant for a proposed Western Massachusetts destination resort casino, for traffic and public safety mitigation and for legal and consulting reimbursement.
In May 2013, the Department of Public Health (“DPH”) issued Final Regulations addressing the administration and implementation of Ballot Question 3 from the November 6, 2012 election, also known as the “Humanitarian Medical Use of Marijuana Act,” M.G.L. c. 94C, App. § 1-1 et seq. These regulations, appearing at 105 CMR 725.000, specifically address: Registered Marijuana Dispensaries (also referred to as Medical Marijuana Treatment Centers); certifying physicians; dispensary agents; qualifying patients and their personal caregivers; and enforcement.
The Telecommunications Act of 1996 strikes a balance between the competing needs of accelerating the rapid deployment of personal wireless communications and retaining state and local government control over land use. Subject to federal preemption over five (5) procedural and substantive matters, municipalities maintain their authority over the installation, construction and maintenance of wireless communications facilities.
The Massachusetts Gaming Commission has recently extended the deadline for municipalities to petition and be designated as a surrounding community for the pending slots-parlor license applications to October 31, 2013.
At the November 6, 2012 election, the voters in Massachusetts approved Ballot Question 3, which authorizes medical marijuana and related uses. Ballot Question 3, now codified as Chapter 369 of the Acts of 2012 (the Law), became effective on January 1, 2013.
Yesterday, May 3, the Supreme Judicial Court issued a decision that significantly impacts communities across Massachusetts. In Barr Incorporated v. Town of Holliston, SJC-10899 (May 3, 2012)(slip opinion), the Supreme Judicial Court held that Massachusetts General Laws Chapter 149, the Commonwealth of Massachusetts Public Building Construction Statute, does not limit a municipal awarding authority, in making a determination of bidder responsibility, to consideration of materials collected by the Division of Capital Asset Management and Maintenance. Instead, a municipal awarding authority may conduct its own independent investigation into the past qualifications and performance of an individual bidder.
The Massachusetts Supreme Judicial Court yesterday issued a significant decision that could impact municipalities throughout the Commonwealth. In Adams v. City of Boston, SJC-10861 (March 7, 2012)(slip opinion), the Court held that the City of Boston was not required to pay the Commonwealth’s portion of career incentive payments due under the Quinn Bill, M.G.L. c. 41, § 108L.
M.G.L. c. 40, § 57, allows municipalities to withhold permits and licenses for the non-payment of local taxes, fees, assessments, betterments or any other municipal charges. The statute is recognized as an effective enforcement mechanism to collect real estate taxes and other municipal debts. This statute has a broad scope of enforcement which includes debts owed by individuals, corporations or business enterprises. Although a municipality may have a number of options to achieve enforcement, M.G.L. c. 40, § 57 is an enforcement statute which is independent of other statutory remedies available to a municipality.
Under the current version of the Open Meeting Law (M.G.L. c. 30A, § 22(a)), public bodies are required to prepare and maintain accurate minutes for the open and executive session of each public meeting. Among other requirements, these minutes must include “a summary of the discussions on each subject.” In OML 2011-55 (Stoughton School Committee), the Office of the Attorney General recently addressed the sufficiency of minutes prepared by a local public body.
The chair of a local public body has the following responsibilities under the Open Meeting Law, M.G.L. c. 30A, §§ 18-25, and Open Meeting Law Regulations, 940 CMR 29.00:
The current version of the Open Meeting Law, M.G.L. c. 30A, §§ 18 to 25, left it up to the Office of the Attorney General to decide whether and under what circumstances public body members could remotely participate in a public meeting. In a recently issued regulation, 940 CMR 29.10, the Attorney General has now authorized certain members of public bodies to remotely participate in a public meeting, without having to be physically present at the meeting location.
On July 12, 2011, Governor Patrick signed “An Act Relative to Municipal Health Insurance” (H. 3580) into law. Originally part of the FY 2012 budget, significant reforms to the municipal health insurance system were proposed and adopted as separate emergency legislation.
Recent enforcement letters from the Attorney General’s office highlight the need for including specific details under the Open Meeting Law (M.G.L. c. 30A, §§ 18-25 and 940 CMR 29.00):
The Massachusetts Supreme Judicial Court issued a critical decision this month which enabled the Town of Hanover to proceed with its forty-six million dollar ($46,000,000) high school construction project, on schedule and within budget, almost ten months after construction commenced.
In November, 2009, we sent out a client advisory regarding changes to the Open Meeting Law (to view this advisory, please go to www.mhtl.com). Those changes are scheduled to go into effect on July 1, 2010, and will have a significant effect on how all “public bodies” covered by the law conduct their meetings. Among other things, the changes will directly affect:
In Chapter 28 of the Acts of 2009, entitled “An Act to Improve the Laws Relating to Campaign Finance, Ethics and Lobbying”, the Legislature substantially redrafted the provisions of the Open Meeting Law. The new provisions of the Open Meeting Law take effect on July 1, 2010.
In Chapter 28 of the Acts of 2009, entitled “An Act to Improve the Laws Relating to Campaign Finance, Ethics and Lobbying”, the Legislature increased the stringency of Massachusetts General Laws Chapter 268A, the Conflict of Interest Law. These changes took effect September 29, 2009.
On June 29, 2009, Governor Deval Patrick signed into law the Massachusetts State Budget for Fiscal Year 2010. Included in the final budget was a drastic cut in state funding for the Quinn Bill. The Quinn Bill provides additional compensation to police officers who complete an undergraduate or graduate degree. The significant reduction in Quinn Bill funding presents a potential burden for Massachusetts cities and towns.
The Massachusetts Supreme Judicial Court issued a critical decision last week which saved cash strapped municipalities from a potentially serious financial threat. In Silva v. City of Attleboro, et. al., SJC-10330 (6/26/09), a funeral director sued Attleboro and other cities, arguing that a nominal charge for issuing a burial permit was an illegal tax. Reversing the Massachusetts Appeals Court, the Supreme Judicial Court agreed with the cities and decided that the burial permit charges were lawful fees, imposed to defray the reasonable expenses of regulating the disposal of human remains.
In a decision of monumental importance to Massachusetts municipalities the Massachusetts Supreme Judicial Court held in the case of Suffolk Construction Co., Inc. v. Division of Capital Asset Management, 449 Mass. 444 (2007) that by enacting the public records law the Legislature did not intend to extinguish the protection provided by the attorney-client privilege to public officers or employees and governmental entities subject to that law, and that confidential communications between public officers and employees and governmental entities and their legal counsel undertaken for the purpose of obtaining legal advice or assistance are protected under the normal rules of the attorney-client privilege. The decision was issued on July 13, 2007.
The Community Preservation Act (“CPA”), a local option statute enacted by the Legislature in 2000, is a mechanism for allowing municipalities to maintain their character and natural resources. By accepting the CPA, municipalities may approve a surcharge of up to three (3%) of the real estate tax levy against real property for purposes of the CPA.
Last Wednesday, the Supreme Judicial Court (“SJC”) released a decision of manifest importance to any police department considering the use of lie detectors in connection with investigations of potentially criminal behavior by police officers. The decision in Furtado v. Town of Plymouth, __ N.E.2d __, 2008 WL 2170141 (Mass.), permits a police department to require an officer to submit to a lie detector test in an internal investigation when the conduct being investigated would be a crime. This holds true even if criminal prosecution for that conduct is not possible.
The new trench safety law, contained at M.G.L. c. 82A, § 1 et seq. and 520 CMR 14.00, imposes certain responsibilities upon municipalities with respect to the issuance of permits to “excavators” for the excavation of certain “trenches.” The trench safety regulations will be effective on January 1, 2009.
The Supreme Judicial Court of the Commonwealth has just issued its decision in the Bjorklund case, effectively resolving the question: “Does the proposed reconstruction of a single-family residence, which satisfies all dimensional requirements in the town’s zoning by-law except minimum lot size requirements, increase the nonconforming nature of the structure?” In this case, the Supreme Judicial Court provided an affirmative response in a majority opinion by Justice John Greaney.