A communication transmitted from Louis A. DePasquale, City Manager, relative to Awaiting Report Item Number 21-23, regarding a report on permanently extending remote participation in City Council and board and commission meetings

Assistant City Solicitors Nancy E. Glowa Paul S. Kawai City Solicitor Keplin K. U. Allwaters Sean M. McKendry Arthur J. Goldberg Brian A. Schwartz Deputy City Solicitor Diane O. Pires Megan B. Bayer S.0AD.163 Public Records Access Officer First Assistant City Solicitor Seah Levy CITY OF CAMBRIDGE Office of the City Solicitor 795 Massachusetts Avenue Cambridge, Massachusetts 02139 June 7, 2021 Louis A. DePasquale City Manager Cambridge City Hall 795 Massachusetts Avenue Cambridge, MA 02139 Re: Response to City Council Awaiting Report No. 21-23, report on the concept of permanently extending the ability for members of the public to remotely participate in meetings of the City Council and meetings of the City's boards and commissions. Dear Mr. DePasquale, We have prepared this legal opinion in response to Awaiting Report No. 21-23 of 4/12/21, which requests that the City Manager direct the City Solicitor to draft the necessary language to petition the Commonwealth for permission to make remote participation for members of the public a permanent option in the City Council meetings, and in board and commission meetings, to make remote participation by a quorum of the members of a public body a permanent option, to determine whether the City may wish to partner with other local municipalities in asking for this rule change in the State Legislature, and to report back to the City Council in a timely manner. Awaiting Report No. 21-23 arose out of the April 7, 2021 meeting of the Government Operations, Rules and Claims Committee which was held in response to Council Order No. O-3 of 3/22/21, which had ordered that the Government operations, Rules and Claims Committee hold a hearing to consider amending the City Council rules to allow for a permanent remote participation option at all public City meetings and had ordered that the City Manager explore options for including a permanent remote participation option at all public meetings in the City. Accordingly, this legal opinion is also in response to Council Order No. 0-3 of 3/22/21. As is discussed further below, the City Council may amend its Rules to allow remote public participation at its meetings even after Governor Baker's Order Suspending Certain Provisions of the Open Meeting Law, G.L. c.30A, §20, is no longer in effect. The City Council does not need special legislation to do so. Additionally, other City boards and commissions may Facsimile [phone removed] TTY/TTD [phone removed] Telephone [phone removed]

also allow remote public participation after Governor Baker's Order is no longer in effect if the City Manager determines it is advisable and feasible for other boards and commissions to do so. Below we discuss some of the important careful considerations that must go into such decisions. Additionally, legislation has already been filed that seeks to amend the Open Meeting Law to allow remote participation by a quorum of the members of a public body as a permanent option. We are also writing to provide an update concerning the applicability of the provisions of the Open Meeting Law in light of Governor Baker's COVID-19 Order No. 69, issued on May 28,2021, which orders that effective 12:01 a.m. on June 15, 2021, the State of Emergency in the Commonwealth will terminate, and therefore, at that time, Governor Baker's COVID-19 Order No. 1, an Order Suspending Certain Provisions of the Open Meeting Law, G.L. c.30A, §2 ("COVID-19 Order No. 1"'), expires. As explained further below, the City Council should be prepared to resume in-person meetings where a quorum of the Council is present and the meeting is physically open and accessible to the public as of June 15", but the Legislature is considering temporary legislation that would extend the suspension of certain provisions of the Open Meeting Law until September 1, 2021. The legislation filed by Governor Baker would only be temporary, but it is in addition to the already pending legislation that seeks to amend the Open Meeting Law permanently. 1. Background The Open Meeting Law governs meetings of public bodies and requires that meeting of public bodies be open to the public for purposes of ensuring transparency. G.L. c.30A, §20. The Open Meeting Law ("OMI") governs remote participation by members of a public body and the Attorney General's Regulations, 940 CMR 29.10, further regulate remote participation by specifying the requirements for remote participation and the permissible reasons for remote participation. The Regulations require that a quorum of the public body, including the chair, be physically present, and that remote participation only be permitted when physical attendance would be unreasonably difficult. On March 12, 2020, in response the COVID-19 Pandemic, Governor Baker issued COVID-19 Order No. 1 suspending provisions of the OML. COVID-19 Order No. 1 suspends the requirement that meetings be held in a public place that is physically accessible to the public, provided that the public body provide access to the public through adequate, alternative means (e.g. technology such as Zoom). COVID-19 Order No. 1 also allows all members of a public body to participate remotely. COVID-19 Order No. I further provides that if a public body holds it meetings in a place that is not physically accessible to the public and with all of its members remote, it shall allow any party that is entitled to or required to appear before the public body the ability to participate through remote means. COVID-19 Order No. 1 is in effect until rescinded or until the State of Emergency is terminated, which is ordered to occur on June 15, 2021. On May 28, 2021, Governor Baker issued COVID-19 Order No. 69, which orders that effective 12:01 a.m. on June 15, 2021, the state of emergency in the state will terminate. Therefore, at that time, Governor Baker's COVID-19 Order No. 1 expires. However, on May 25,2021, Governor Baker filed legislation known as Senate No. 2452, which among other things, seeks to extend the suspension of certain provisions of the OML as set out in COVID-19 2

Order No. 1 until September 1, 2021. This Bill was referred to the Senate Committee on Ways and Means and written testimony on this Bill was being accepted until the end of the day on June 1, 2021. Additionally, there are several bills pending before the Legislature seeking to make permanent amendments to the OML. Senate Bill S.2104 and House Bill H.3213 would allow a quorum of a public body to participate remotely and would allow a meeting to be accessible to the public through adequate, alternative means. A virtual hearing was scheduled for these bills for June 2, 2021. IL. Legal Analysis When COVID-19 Order No. I suspending provisions of the OML, and any legislative temporary extension of its provisions, is no longer in effect, the issues are (1) will the public be able to continue to participate through remote means, and (2) will members of a public body be able to participate through remote means? As a starting point, the OML requires that meetings of a public body be open to the public, but the OML does not require or regulate public comment. The Attorney General's Division of Open Government, which is the agency with the authority to enforce the OML, has opined that there may be other applicable laws, regulations and rules that address public comment at the meeting of a public body, but the OML itself does not govern public comment. Accordingly, it does not violate the OML to allow remote public comment to continue even after a meeting is physically open and accessible to the public again. For the City Council, public comment is required pursuant to City Council Rule 24C, and the Charter, G.L. c.43, §98. General Laws c.43, §98 states that "the rules of the city council shall provide that citizens and employees of the city shall have a reasonable opportunity to be heard at any such meeting in regard to any matter considered there" and City Council Rule 24C provides that "individuals and employees of the city shall have reasonable opportunity to be heard at any meeting of the City Council in regard to any matter considered thereat." The Charter and the City Council Rules do not specify the means for providing public comment, and only require that the City Council provide a reasonable opportunity for public comment. For adjudicatory boards and commissions, which are boards and commissions that apply certain standards to particular individuals or property, such as the Planning Board, Board of Zoning Appeal, and Board of License Commissioners, the opportunity for interested parties to be heard is often required by specific statues or regulations, or the board's rules. Additionally, for adjudicatory board and commissions, an interested party's Constitutional due process nights may afford an interested party a right to be heard. For the members of the City Council and other City boards and commissions, when COVID-19 Order No. 1 suspending provisions of the OML, and any legislative temporary extension of its provisions, is no longer in effect, a quorum of the public body will be required to physically attend meetings, and any members participating remotely will have to follow the 3

procedures set forth in the Attorney General's Regulations, 940 CMR 29.10. Meetings will also have to be physically open and accessible to the public. Ill. Recommended Next Steps If the City Council wishes to allow remote public comment to continue even after a meeting is physically open and accessible to the public again, the City Council should amend its Rules to allow remote public participation, in addition to continuing to allow in-person public participation as is currently provided in the Rules. We recommend that a rule address how the Council will handle hearing from public commentors in person as well as remotely, in order to ensure that public comment be handled in a manner that is fair and equitable to all. For example, will the Council take in-person and remote comments on an alternating basis, or hear from all remote or all in-person commentors first. Will the Council require all public commentors, both in-person and remote to sign up in advance. Will the Council allow remote public comment all meetings, including meetings of the Council's committees. We recommend that a rule be adopted in advance of conducting a meeting that permits in-person and remote public comment so that it is done in a consistent and equitable manner. We have conferred with the Information Technology Department ("IT"), and IT would be able to accommodate a "hybrid public comment" arrangement where commentors are both in- person and remote. IT would need to work with other relevant City Departments, like City Council staff and the City Clerk's Office, to work out the logistics after the City Council amends its Rules to provide for this option, if the Council chooses to do so. Lastly, as referenced above, Governor Baker's COVID-19 Order No. 1 expires as of June 15, 2021, and as of June 15'" in order to comply with the OML, public meetings shall be open and accessible to the public, and a quorum of the public body shall be physically present. Accordingly, for the City Council's meetings, and meetings of the Council's committees, scheduled for June 15, 2021, and after, the Council should plan to hold the meetings in person. However, if the emergency legislation filed by Governor Baker passes, public bodies will be able to conduct public meetings through remote means, rather than in-person, until September 1, 2021. The pending emergency legislation would give the Legislature time to possibly adopt permanent amendments to the Open Meeting Law to amend the requirement that a quorum of nembers be physically present and possibly to amend the requirement that meetings be open an ccessible to the public. The extension until September 1s would also give the Council time t amend its Rules to provide for remote public participation, along with in-person public participation before holding in-person meetings, if it wishes to do so. In sum, we recommend that: 1. Starting June 15, 2021, the City Council conduct all meetings of the Council and its committees pursuant to the OML which require that a quorum of the members be physically present, and remote member participation only be allowed pursuant to the Attorney General's Regulations, 940 CMR 29.10; 4

2. The City Council amend its Rules to allow for in-person public comment to continue, and to add remote public comment as an option, and to determine a process for this hybrid public comment, if the Council wishes to do so; and 3. Reach out to the City's legislative delegation to request that the Legislature pass Governor Baker's bill to temporarily extend the suspension of OML provisions through September 1, 2021, and to request that the Legislature pass the pending Bills that will permanently amend the OML to allow members of a public body to participate remotely and conduct meetings through alternative means rather than physically open to the public. For other City boards and commissions, we understand that the City Manager and city staff are evaluating next steps. Allowing continued remote public comment at adjudicatory boards and commissions even after in-person meetings resume is a more complex issue given the rights of interested parties that appear before those boards and commissions. Additionally, the City Manager will have to determine how to handle in-person and remote public participation from a technological perspective, and how to allocate City resources for this purpose. I will be available to answer questions and can assist the Council in any next steps that it wishes to take. If the Council wishes, we can draft a proposed rule providing for hybrid public comment for the Council's consideration, with options the Council can select. Very truly yours, Nancy E. Glowa City Solicitor