On August 18th, Governor Baker issued an executive order providing guidance to municipalities regarding how to enforce the numerous executive orders in effect in response to COVID-19. Many of the Governor’s prior orders provided municipalities with the authority to enforce the executive orders. For example, the Governor’s recent order mandating quarantine for travelers entering the Commonwealth from out of state provides local boards of health and their authorized agents as well as municipal police with powers to enforce the order. The Governor’s August 7th executive order limiting the size of in-person gatherings also allowed for enforcement by local boards of health and municipal police departments.
On July 20, 2020, Governor Charlie Baker signed “An Act to Expand Take-out/Delivery Options in Response to COVID-19 (“Act”)” into law. The Act is an emergency measure intended to address significant disruptions to the restaurant industry in the Commonwealth caused by the COVID-19 pandemic. The Act temporarily allows establishments that are currently licensed by Massachusetts law to sell all alcoholic beverages to be consumed on-premises to sell mixed drinks for off-premises consumption, subject to restrictions, effective July 20, 2020. The Act will remain in effect until the Governor’s state of emergency is lifted or on February 28, 2021, whichever occurs earliest. An all alcohol license is required; this temporary authorization does not extend to establishments with only wine and malt beverages licenses.
On July 6, 2020, Governor Charlie Baker signed “An Act Relative to Voting Options in Response to COVID-19 (“Act”)” into law. The Act contains several important amendments to the Massachusetts Elections Law, M.G.L. c. 54 and applies to all federal, state and local elections through the end of 2020. The Act, designed to make voting more convenient and reduce crowding at the polls, affords all Massachusetts voters the option to vote by mail and extends the time allowed for early in-person voting.
On June 5, 2020, “An Act Relative to Municipal Governance During the COVID-19 Emergency” was signed into law. This bill is the third law passed in response to COVID-19, which largely targets the challenges faced by municipalities due to the ongoing pandemic. Part I of this client alert located here addressed the legislation’s provisions regarding municipal elections and town meetings. This client alert focuses on the remaining provisions of the legislation, including municipal finance provisions, school vendor contracts, and educators’ licenses.
On June 4, 2020, the Massachusetts Legislature enacted “An Act Relative to Municipal Governance During the COVID-19 Emergency.” The Governor signed the bill into law on June 5, 2020. This bill is the third in a series of legislation designed to mitigate the challenges that the coronavirus pandemic has created for municipal operations, budgets, and governance. The legislation largely addresses municipal elections, town meetings, and municipal finance questions. This client alert summarizes the legislation’s increased flexibility regarding town meetings and elections. A second client alert will address the law’s provisions regarding municipal finance.
On Friday, April 3, 2020, Governor Baker signed into law An Act to Address Challenges Faced by Municipalities and State Authorities Resulting from COVID-19, which was codified at Chapter 53 of the Acts of 2020 (the “Act”). The Act addresses a number of issues faced by municipalities resulting from the ongoing coronavirus pandemic, including the implications for town meetings, town budgets, taxes, sale of alcoholic beverages, and multi-member body permits.
This client alert highlights the law’s provisions addressing permits, permit applications, and public hearings. The law defines “permit” broadly to include permits, variances, special permits, licenses, amendments, extensions, and other approvals by a permit granting authority. A “permit granting authority” is also defined broadly to include any local, district, county, or regional official or multi-member body authorized to issue a permit.
Omnibus Municipal Relief Law – Part I: Changes to Off Premises Service of Beer and Wine; Advice on Administration and Enforcement
On April 3, 2020, Governor Baker signed into law Chapter 53 of the Acts of 2020 (the “Law”), a multidimensional municipal relief bill affecting a broad range of municipal concerns arising from the present COVID pandemic, and Governor Baker’s emergency orders. The legislation addresses multiple varied municipal issues ranging from postponement of Town Meetings, recalibration of the municipal budget process, and tolling of permit timelines. Among the provisions of the new law is Section 13 which significantly alters the licensing landscape for the sales and service of alcoholic beverages. As with many sections of the law, this alteration is limited to the duration of Governor Baker’s March 10, 2020 Declaration of Emergency.
Guidance for Municipalities on Conducting Remote Public Meetings Under the Open Meeting Law and the Relaxed Remote Participation Standards
On March 12, 2020, the Governor issued an Executive Order (“Order”) suspending certain provisions of the Open Meeting Law (“OML”), to allow expanded remote participation and alternative access to all public meetings conducted under the OML ( this excludes Town Meetings). No public body in Massachusetts has ever been authorized to conduct all remote public meetings prior to the Order, and many cities and towns shut down meetings for much of the rest of March. In the coming weeks, as local governments begin moving forward to conduct the public business, select boards, school committees, planning boards, boards of health, and all public board and commissions, will be faced with this new experience.
GOVERNOR BAKER ISSUES EXECUTIVE ORDER TO IMMEDIATELY ALLOW EXPANDED REMOTE PARTICIPATION AND “ALTERNATIVE ACCESS” TO ALL PUBLIC MEETINGS
On March 12, 2020, as part of his authority under the State of Emergency declaration, and in response to multiple recommendations to keep distance between individuals in order to protect public health due to the coronavirus (“COVID-19”) pandemic, Governor Baker issued an Executive Order (”Order”) suspending certain provisions of the Open Meeting Law, to allow expanded remote participation and alternative access to all public meetings. The Order provides swift and much needed clarification for select boards, school committees and all other “public bodies” subject to the Open Meeting Law.
Supreme Judicial Court’s Decision Regarding Tort Claims Act Preserves Vital Protections for Municipalities
On January 22nd, the Supreme Judicial Court (“SJC”) issued a decision in Magliacane v. City of Gardner which preserved key protections for municipalities facing tort claims. The SJC’s decision agreed with the arguments put forth by MHTL’s attorney Cindy Amara in an amicus brief she filed in the case on behalf of the Massachusetts Municipal Lawyers Association (“MMLA”).
Massachusetts Appeals Court Upholds Natick Chief of Police’s Unsuitability Determination for License to Carry Firearms
In a recent decision, Nichols v. Chief of Police of Natick, the Massachusetts Appeals Court (“Court”) ruled in favor of MHTL’s client, concluding that the Superior Court improperly vacated a determination by the Natick Chief of Police that an applicant was unsuitable for a license to carry firearms (“LTC”). David DeLuca, a Partner at MHTL, handled the case in each court. The applicant had an extensive history of prescription drug abuse, fraud, and forgery
resulting in 468 criminal charges in less than three years, though he claimed to be rehabilitated. The Court’s decision reinforces the wide discretion a local licensing authority has in making LTC suitability determinations, and it reinforces the limited proper scope of judicial review of such determinations.
In recent years local officials have grappled with the poliferation of short-term rentals arranged through internet paltforms such as Airbnb, HomeAway, and VRBO. The newly adopted state law, Chapter 337 of the Acts of 2018 (the “Act”, approved by the Governor on December 28, 2018), effects important changes relative to the issue. This alert summarizes some of the Act’s salient provisions.
The Cannabis Control Commission Speaks – Regulating The High: Select Provisions of the Draft Regulations for Adult Use of Marijuana Impacting Cities and Towns in Massachusetts
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.
A summary of the pertinent changes to the Public Records Law, which will become effective January 1, 2017.
Department Of Public Health Changes Requirements To Registered Marijuana Dispensary Registration Process
“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
Approaching a Level Playing Field: Work Product May Be Subject To Exemption Under Public Records Law
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
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.
Landmark Surrounding Community Agreement from Expanded Gaming Act Arbitration Upheld by Massachusetts Gaming Commission
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.
Massachusetts Gaming Commission Extends Deadline for Municipalities to Petition for Designation as Surrounding Communities to Proposed Slots-Parlor Establishments
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.
Enforcement Letters From Attorney General’s Office Highlight Need for Specificity Under Open Meeting Law
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):
A recent decision of the Massachusetts Supreme Judicial Court regarding liability for accumulation of snow and ice on property has raised many questions in Massachusetts municipalities.
Supreme Judicial Court Upholds Town’s Right to Exercise Discretion under the Pre-Qualifications Statute: $46,000,000 School Construction Project Continues
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
Murphy, Hesse, Toomey & Lehane expresses its condolences to the family of justice Ginsburg, a caring and intellectually powerful woman. As a justice, lawyer, and teacher she stood for the principles that enhanced the civil rights of women and men of all color, rights of equal pay between the sexes, the rights to healthcare and the basic rights of criminal defendants. Justice Ginsburg knew what it was to be a women in a male dominated profession Read More
Department of Labor Issues Revised Temporary Rule on Families First Coronavirus Response Act Including New Guidance Relating to Intermittent Leave
On Friday, September 11, 2020, the Department of Labor issued revisions to the temporary rule regarding the federal Families First Coronavirus Response Act (“FFCRA”). Those revisions can be found here - https://www.federalregister.gov/documents/2020/09/16/2020-20351/paid-leave-under-the-families-first-coronavirus-response-act. The revisions take effect on September 16, 2020.