following is from MMA website and K&P law and said material was covered at the last meeting of MMA in January 2016.
Nearly five years after the enactment of the “new” Open Meeting Law (“OML”), the Attorney General’s Division of Open
Government (“Division”), through the issuance of opinions on particular complaints, continues to refine our understanding of
the law and implementation thereof. Review of these opinions highlights nuances in how the Division interprets the OML and
can assist boards in avoiding violations. While the Division’s resolution of a complaint applies only to the particular governmental
body against which the complaint was lodged, it sets a precedent for resolution of similar complaints that may not
appear in the OML or Division regulations adopted thereunder. The database of Division determinations is available on the
Attorney General’s website at http://www.oml.ago.state.ma.us/Search.aspx?section=1 and may be searched by municipality,
date or keywords. Below are some notable decisions from 2015 of which governmental bodies and their staff should be aware.
Executive Session: Single Item Meeting Notice – On occasion, a board may schedule a special meeting for the purpose of
addressing a single issue in executive session. As always, the OML, specifically G.L. c.30A, §21, requires the governmental body
to begin the meeting in open session and then vote by roll call to enter executive session. The Division has determined, however,
that in such a case, a board must include an item for the open session portion of the meeting, even if the only action to be
taken is voting to enter executive session. The Division reasoned, “Listing ‘open session’ on the meeting notice is the only
means by which members of the public are informed that a public body will, in fact, hold an open meeting that they are permitted
to attend.” OML 2015-177, OML 2015-87. Therefore, to avoid a potential violation of the OML, if a board intends to hold a
meeting only for the purpose of addressing an executive session matter, the meeting notice must first list the open session in
a form similar to the following, “1. Open Session for Purpose of Voting to Enter Executive Session.”
Executive Session Minutes: Collective Bargaining Strategy – A board may, pursuant to G.L. c.30A, §21(a)(3), enter executive
session for the purpose of discussing strategy with regard to collective bargaining contract negotiations, but only so long as an
open session “may have a detrimental effect on the bargaining position of the public body.” The records of an executive
session, including minutes, must typically be released when the purpose of the session is completed. Some public bodies have
argued that the minutes, which may contain negotiating strategies, have a continuing need to be withheld as potentially affecting
future negotiations. The Division has agreed that such minutes may be withheld for a period, but that ”such minutes may
not be withheld indefinitely.” OML 2015-62. The Division held that at some point the basis for withholding these minutes, i.e.,
that release would be “detrimental” for future negotiations, must expire. At this time, no appellate court has ruled on the
application of the exemption and the ability to withhold permanently executive session minutes concerning collective bargaining
strategy. Importantly, however, other exemptions from disclosure under the Public Records Law may still apply and be
asserted in response to a request for such minutes.
Jeff Bennett
Saturday, February 13, 2016
Back in September, 2015, the supreme judicial court of MA issued a decision regarding the use of the CMAR (construction manager at risk) method for public projects. In short, the decision states that rather than a project manager being liable, a municipality could be liable / responsible for defects in plans and specifications for a public project even if a CMAR was used.
In short, a Ma state agency, DCAMM employed a CMAR for a project, then when a subcontractor tried to get paid extra dollars for changes, scheduling, coordination and design errors, the subcontractor went after the CMAR for the extra dollars then DCAMM. The court ruled the public agency does give an implied warranty with regards to a designers plans and specifications. Somewhere in there, I foresee a possibility of this having effect on the new school, even with a contingency fund built in. Right now, I would just say it is a possibility and that is what happens when lawyers and the courts get involved. Even with a guaranteed maximum price, there seems to be an opening, so we will just have to watch this project unfold and see what happens and hope for the best.
Jeff Bennett
you can find this online and read the entire text of the ruling
In short, a Ma state agency, DCAMM employed a CMAR for a project, then when a subcontractor tried to get paid extra dollars for changes, scheduling, coordination and design errors, the subcontractor went after the CMAR for the extra dollars then DCAMM. The court ruled the public agency does give an implied warranty with regards to a designers plans and specifications. Somewhere in there, I foresee a possibility of this having effect on the new school, even with a contingency fund built in. Right now, I would just say it is a possibility and that is what happens when lawyers and the courts get involved. Even with a guaranteed maximum price, there seems to be an opening, so we will just have to watch this project unfold and see what happens and hope for the best.
Jeff Bennett
you can find this online and read the entire text of the ruling
A special town meeting;
Templeton water dept. has been before the selectmen, on Wednesday, February 10, 2016 to ask for a special town meeting. Reason for this meeting is so the Templeton water dept. can apply for a loan from USDA to replace one of Templeton's water tanks. The water dept. stated they woulld pay the costs associated with this meeting. Seems like the water dept. needs town meeting after all. According the a letter from the MA DOR, with regards to MA general law, chapter 164, the Templeton light & water dept. is not a separate legal entity and needs town meeting approval to take on more debt.
This is no rumor as I was present at the meeting. This is just what the dept. needs, more debt.
Jeff Bennett
ps: feel free to comment on this.
Templeton water dept. has been before the selectmen, on Wednesday, February 10, 2016 to ask for a special town meeting. Reason for this meeting is so the Templeton water dept. can apply for a loan from USDA to replace one of Templeton's water tanks. The water dept. stated they woulld pay the costs associated with this meeting. Seems like the water dept. needs town meeting after all. According the a letter from the MA DOR, with regards to MA general law, chapter 164, the Templeton light & water dept. is not a separate legal entity and needs town meeting approval to take on more debt.
This is no rumor as I was present at the meeting. This is just what the dept. needs, more debt.
Jeff Bennett
ps: feel free to comment on this.
Thursday, February 4, 2016
Typical Chronology:
After authority to raise money through debt is granted by city council or town meeting, actual issuance of notes or bonds may occur months, or even years, later. For this reason, it is good practice for local finance officials to meet periodically to review borrowings that have been authorized, but not issued, to make sure that the debt position of the community is understood by all. Once the structure of a borrowing has been determined, a preliminary official statement (POS) is developed under direction of the treasurer and disseminated to the bond market community. The POS will also be used by rating agencies in their analysis of credit worthiness. Both the POS and the final Official Statement (OS) are documents prepared for potential investors that contain information about a prospective bond or note issue and financial data about the city or town. The OS is sometimes referred to as an offering circular or prospectus. After all of the preliminary work has been done and the various experts (e.g. bond counsel, rating agencies) have weighed-in on the sale, the bonds or notes are sold to underwriters or broker syndicates and, ultimately, to investors. Once payment on the purchase has been made, the community has the funds for the specified capital improvement or operating expenditures. To minimize interest costs, or more efficiently assemble borrowing packages, treasurers should always communicate with the department head, who will oversee a project or purchase, to better understand when funds will be needed. By taking a deliberate and thoughtful approach toward debt, cities and towns can optimize their borrowing practices to better maintain capital assets and minimize costs. Having a basic understanding of the process and making use of the knowledge of investment professionals improves a community’s odds of success.
Jeff Bennett
After authority to raise money through debt is granted by city council or town meeting, actual issuance of notes or bonds may occur months, or even years, later. For this reason, it is good practice for local finance officials to meet periodically to review borrowings that have been authorized, but not issued, to make sure that the debt position of the community is understood by all. Once the structure of a borrowing has been determined, a preliminary official statement (POS) is developed under direction of the treasurer and disseminated to the bond market community. The POS will also be used by rating agencies in their analysis of credit worthiness. Both the POS and the final Official Statement (OS) are documents prepared for potential investors that contain information about a prospective bond or note issue and financial data about the city or town. The OS is sometimes referred to as an offering circular or prospectus. After all of the preliminary work has been done and the various experts (e.g. bond counsel, rating agencies) have weighed-in on the sale, the bonds or notes are sold to underwriters or broker syndicates and, ultimately, to investors. Once payment on the purchase has been made, the community has the funds for the specified capital improvement or operating expenditures. To minimize interest costs, or more efficiently assemble borrowing packages, treasurers should always communicate with the department head, who will oversee a project or purchase, to better understand when funds will be needed. By taking a deliberate and thoughtful approach toward debt, cities and towns can optimize their borrowing practices to better maintain capital assets and minimize costs. Having a basic understanding of the process and making use of the knowledge of investment professionals improves a community’s odds of success.
Jeff Bennett
From the Massachusetts Department of Revenue;
Understanding Municipal Debt The decision to borrow money can be intimidating. To make matters more uncertain, the mechanics of issuing debt may be the least understood financial process among citizens, local officials and even some professional staff. Generally known is the statutory requirement that a town meeting, or a city council, can authorize borrowing only by twothirds vote. State law also specifies what expenditure purposes may be funded through debt and the allowed duration of the borrowing term (M.G.L. Ch. 44). The terms of a borrowing are made final when a majority of the board of selectmen, or the mayor, affixes their signature to required documentation. However, between authorization and issuance much more occurs with little notice outside the treasurer’s office. In the narrative that follows, we hope to provide some clarity. Discussed will be typical reasons why municipalities borrow and the borrowing vehicles that are available. The players who are a part of the process are described, as well as the process itself. Communities in Massachusetts have an ongoing responsibility to create and maintain capital assets. Hopefully, decisions of this nature are based on a capital improvement plan developed through analysis and prioritization of the community’s needs. Beyond a role in funding capital improvements related to buildings, infrastructure and equipment, it is the treasurer’s responsibility to maintain sufficient cash balances to meet the spending demands of departments, within the limits of appropriations. Occasionally, some communities also find themselves in need of a short-term infusion of cash for either capital or operating purposes. For these and other reasons, Massachusetts General Law authorizes cities and towns to issue debt under certain circumstances and for various durations. Often, the reasons for borrowing will dictate the type of debt a community chooses to take on. This is because some vehicles are better suited than others, depending on the nature of the need for funds. To make the discussion simpler, we can conceive of municipal debt as essentially falling into two categories: short-term and long-term.
Short-term Debt:
Short-term debt can be classified best as borrowing through the issue of notes in anticipation of either paying them off or permanently financing the debt. Short-term borrowing also allows communities to make interest-only payments. However, such debt usually has a maturity date of no more than two years and, in some cases, statute dictates a shorter time frame. Additionally, a community might choose to re-issue short-term debt and/or make principal payments under certain circumstances. The various types of short-term debt vehicles used in Massachusetts include the following:
Bond Anticipation Notes (BANs) – These notes are issued to provide funding for capital improvements. BANs are usually paid-off with the proceeds of long-term financing instruments such as general obligation bonds. However, state law allows for BANs to be re-issued for up to five years if principle payments are made in accordance with an amortization schedule that would be required if the outstanding balance had been financed as long-term debt (M.G.L. Ch. 44, §17). Since short-term debt normally carries a lower interest rate than permanent, this strategy may make sense under certain circumstances.
Question: is there a line item in the fiscal year budget, 2017, which begins July 1, 2016 and will be voted on this May at Annual Town Meeting.
Jeff Bennett
Understanding Municipal Debt The decision to borrow money can be intimidating. To make matters more uncertain, the mechanics of issuing debt may be the least understood financial process among citizens, local officials and even some professional staff. Generally known is the statutory requirement that a town meeting, or a city council, can authorize borrowing only by twothirds vote. State law also specifies what expenditure purposes may be funded through debt and the allowed duration of the borrowing term (M.G.L. Ch. 44). The terms of a borrowing are made final when a majority of the board of selectmen, or the mayor, affixes their signature to required documentation. However, between authorization and issuance much more occurs with little notice outside the treasurer’s office. In the narrative that follows, we hope to provide some clarity. Discussed will be typical reasons why municipalities borrow and the borrowing vehicles that are available. The players who are a part of the process are described, as well as the process itself. Communities in Massachusetts have an ongoing responsibility to create and maintain capital assets. Hopefully, decisions of this nature are based on a capital improvement plan developed through analysis and prioritization of the community’s needs. Beyond a role in funding capital improvements related to buildings, infrastructure and equipment, it is the treasurer’s responsibility to maintain sufficient cash balances to meet the spending demands of departments, within the limits of appropriations. Occasionally, some communities also find themselves in need of a short-term infusion of cash for either capital or operating purposes. For these and other reasons, Massachusetts General Law authorizes cities and towns to issue debt under certain circumstances and for various durations. Often, the reasons for borrowing will dictate the type of debt a community chooses to take on. This is because some vehicles are better suited than others, depending on the nature of the need for funds. To make the discussion simpler, we can conceive of municipal debt as essentially falling into two categories: short-term and long-term.
Short-term Debt:
Short-term debt can be classified best as borrowing through the issue of notes in anticipation of either paying them off or permanently financing the debt. Short-term borrowing also allows communities to make interest-only payments. However, such debt usually has a maturity date of no more than two years and, in some cases, statute dictates a shorter time frame. Additionally, a community might choose to re-issue short-term debt and/or make principal payments under certain circumstances. The various types of short-term debt vehicles used in Massachusetts include the following:
Bond Anticipation Notes (BANs) – These notes are issued to provide funding for capital improvements. BANs are usually paid-off with the proceeds of long-term financing instruments such as general obligation bonds. However, state law allows for BANs to be re-issued for up to five years if principle payments are made in accordance with an amortization schedule that would be required if the outstanding balance had been financed as long-term debt (M.G.L. Ch. 44, §17). Since short-term debt normally carries a lower interest rate than permanent, this strategy may make sense under certain circumstances.
Question: is there a line item in the fiscal year budget, 2017, which begins July 1, 2016 and will be voted on this May at Annual Town Meeting.
Jeff Bennett
Wednesday, February 3, 2016
School Building Committee meeting.
Seems like some members may be fizzling out, as it was at the very last minute to the start of the meeting that a quorum was arrived at. Can't wait to see what happens after Steve Hemmen leaves.
Seems like some members may be fizzling out, as it was at the very last minute to the start of the meeting that a quorum was arrived at. Can't wait to see what happens after Steve Hemmen leaves.
At last night's meeting of the school building committee, it was stated by school superintendent that he had taken the town Accountant and selectmen secretary Holly Young to Boston (presumably MSBA) to be trained with regards to MSBA payments, specifically pro-pay. This seemed a bit odd considering there was no mention of the Town Treasurer, who according to MA general laws, has authority and duties to pay bills and keep track of town debt, The treasurer shall, in addition to his estimate of the amount required for the maintenance of his own office, prepare a separate statement indicating the amounts required for the payment of interest on the town debt and for the payment of such portions of the town debt as may become due during the ensuing fiscal year. (from MA general law, chapter 41, section 59)
It was also stated that the school district intends to turn over control of the Templeton Center School building back to the Town on July 1. It would appear that as of that date, that building and land will be solely under Town Control.
If anyone should check, and I urge you to do so by looking at MA general laws, specifically chapter 41 and by googling Massachusetts municipal treasurers, Collectors and Accountants. This will allow you to read on the powers and duties of each position. Very simply, each department, board or committee authorized to expend Town funds shall at least once a month send to the Town Accountant said bills at which time the accountant verifies that they are proper and legal charges or bills and that they are charged to the proper account, that is then presented to selectmen for their approval and finally the Town Treasurer, after having a warrant signed by a majority of selectmen, can pay the bills and keep a record of all debt and interest costs for said debt.
Jeff Bennett
Monday, February 1, 2016
Oh that budget and the pesky details. . . .
Retirement costs and conflicting numbers aside, there appears to be some more figures presented in the next budget draft for fiscal year 2017, July 1, 2016 to June 30, 2017. These numbers come from information provided by the Town Administrator. There is still a wait for debt schedule of the Town to be provided as well as explanations of numbers not coinciding with previous year budget. The budget versus actual which is suppose to be an up to date accounting of town spending does not even equal what it should be. Quite a few dollar figures do not agree. Something is clearly amiss here which is probably why the Town's schedule A has not been completed on time. There are also new contracts for some departments such as fire and highway, which I hope the selectmen do not give away the house this time. It is time to stop giving away free stuff, offer a wage and benefit package that helps employees but also benefits the town as a whole. One thing would be to strongly push for new health insurance entity to lower the cost of the taxpayers, quite simply, the pie is only so big and if you spend it all on employees, what is left for services such as road repair and maintenance of town buildings. The money has to come from somewhere and that is your wallet, whether it is local taxes, state taxes or federal taxes, it all begins at your wallet. There is no such thing as free money and if the state did not take it from you in the first place, there would be no need for state aid. But back to the local issue at hand. The Advisory Board received an email from the Town Administrator that the Town Accountant was working on the debt schedule, which is really the job of the Town Treasurer. With all the work that needs to be done for audits to happen, as we have been told, it would seem prudent and important for the Town Accountant to be fully focused on things under that office and the treasurer to work on things under that office. Seems like one person doing all the work, which makes one wonder, what the hell is the rest of the "team" doing?
Jeff Bennett
Retirement costs and conflicting numbers aside, there appears to be some more figures presented in the next budget draft for fiscal year 2017, July 1, 2016 to June 30, 2017. These numbers come from information provided by the Town Administrator. There is still a wait for debt schedule of the Town to be provided as well as explanations of numbers not coinciding with previous year budget. The budget versus actual which is suppose to be an up to date accounting of town spending does not even equal what it should be. Quite a few dollar figures do not agree. Something is clearly amiss here which is probably why the Town's schedule A has not been completed on time. There are also new contracts for some departments such as fire and highway, which I hope the selectmen do not give away the house this time. It is time to stop giving away free stuff, offer a wage and benefit package that helps employees but also benefits the town as a whole. One thing would be to strongly push for new health insurance entity to lower the cost of the taxpayers, quite simply, the pie is only so big and if you spend it all on employees, what is left for services such as road repair and maintenance of town buildings. The money has to come from somewhere and that is your wallet, whether it is local taxes, state taxes or federal taxes, it all begins at your wallet. There is no such thing as free money and if the state did not take it from you in the first place, there would be no need for state aid. But back to the local issue at hand. The Advisory Board received an email from the Town Administrator that the Town Accountant was working on the debt schedule, which is really the job of the Town Treasurer. With all the work that needs to be done for audits to happen, as we have been told, it would seem prudent and important for the Town Accountant to be fully focused on things under that office and the treasurer to work on things under that office. Seems like one person doing all the work, which makes one wonder, what the hell is the rest of the "team" doing?
Jeff Bennett
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