City councillor comes out of law training with flawed understanding on recording
City councillor E. Denise Simmons recently told colleagues that the council can prohibit recording of a public meeting. Simmons is wrong – that is not the law.
Simmons remarks were to her fellow councillors at the Jan. 22 council meeting, and were describing the council’s recent Open Meeting Law training.
There remains further confusion about whether any two members of the council’s five-member committees are allowed to talk to each other, because the council has instituted two-member quorums for those committees and the state’s Open Meeting Law bars discussion of committee business among a quorum.
The Law Department conducted a private training session Jan. 17 for members of the City Council. Although meetings of the council are required by law to be open, there is an exception for conferences, training programs and social events – as long as the members don’t discuss business that’s before the council. The trainings have historically been done quietly, without public announcement, but city councillors mentioned at their Jan. 16 meeting of the rules committee that this training was coming up.
In addition to the meeting law, the Jan. 17 session addressed the state ethics law and public records law.
The Law Department has not responded to a Jan. 18 request for materials and notes from the training session. (Under the public records law, a response is required “without unreasonable delay,” but also gives the department until Feb. 2 to respond.)
Rules on recording
“One of the things we talked about in the open meeting law training,” Simmons told her colleagues Jan. 22, is “that people have to inform you if they’re going to tape or record.”
“We do it as a matter of course under the Secretary of State, but other people that may not be part of this august body also have to be reminded of that. And then if asked not to do it, have to comply.”
Simmons is incorrect: The council is not allowed to prohibit recordings.
Audio recording of meetings in Massachusetts is governed by the statute that prohibits eavesdropping, Chapter 272 §99, which bars “secret” recording. As long as any recording device is in “plain sight,” it is not secret and recording is permitted, the Supreme Judicial Court ruled in 2001.
Simmons is serving her ninth term on the council, including two two-year terms as mayor. She ended her most recent term as mayor in December.
She and her aide, Neal Alpert, did not respond to repeated requests to clarify her remarks over the past week. It is unclear how Simmons came away from the training with the understanding that officials could reject the recording of a meeting.
In the 2014 term, the council set the quorums for five-member committees to two, instead of the default of a majority: three members. The rules committee discussed the possibility of altering quorums at its meeting Jan. 16.
Councillor Quinton Zondervan asked, “if we set the quorum to two members, then it means no two people can confer with each other about any substantive matter that would come before the committee?” The committee asked City Solicitor Nancy Glowa to look into whether two members of a committee could discuss committee business privately, and she was expected to report back at the next day’s training.
Asked how the public could learn of her answer if it was delivered at a private training, “the public doesn’t have a right to know,” Glowa said.
But Glowa also didn’t answer at the training. According to one attendee, councillors were told that because the question originated in a public meeting, it could not be discussed in a private training. It’s not clear if the question was ever answered.
At the council meeting on Monday, the council retained the two-member quorums in the rules, unchanged from 2014, without having heard publicly from Glowa.
Disclosure: This reporter wrote in favor of the rules committee raising quorums for the purpose of encouraging attendance at meetings.