The Commonwealth of Massachusetts

Office of the Attorney General

One Ashburton Place
Boston, Massachusetts 02108
Maura Healey (617) 727-2200
Attorney General www.mass.gov/ago

June 24, 2019

OML 2019-75

Benjamin M. Coyle, Esq.

Bacon Wilson, P.C.
33 State Street
Springfield, MA 01103

RE: Open Meeting Law Complaint

Dear Attorney Coyle:

This office received a complaint from Jessica Allen on March 19, 2019, alleging that the
Monson Adult Use Marijuana Committee (the “Committee”) violated the Open Meeting Law,
G.L. c. 30A, §§ 18-25. The complaint was originally filed with the Committee on February 12,
2019, and the Committee responded by letter dated March 1, 2019. In her complaint, Ms. Allen
alleges that the Committee violated the Open Meeting Law when the Chair sent an email to the
entire Committee expressing his opinion on Committee business and when a Committee member
replied to all Committee members, also expressing her opinion.1
Following our review, we find that the Committee’s Chair and one Committee member
violated the Open Meeting Law by deliberating outside of a public meeting. In reaching a
determination, we reviewed the complaint, including emails documenting the exchange at issue
in the complaint, the Committee’s response and the request for further review. In addition, we
viewed the video which is the subject of the emails at issue.
FACTS
We find the facts as follows. The Monson Adult Use Marijuana Committee is a five-
member public body. Thus, any three members constitute a quorum. The Committee’s Chair is
Craig Sweitzer.

1 Ms. Allen also notes that she is concerned that the Chair is sharing Committee emails with his wife, who is not a
member of the Committee. The Open Meeting Law does not address the issue of whether public body members
may share information about Committee business with their spouses or others who are not members of the
Committee. The Division only has jurisdiction to review allegations of Open Meeting Law violations and therefore
we decline to review allegations relating to this issue.
 On February 11, 2019, Chair Sweitzer sent an email to all members of the Committee
concerning a video that had been posted to a Facebook page called the Massachusetts
Recreational Consumer Council and contained footage from a previous Committee meeting
along with other commentary on the Committee’s proceedings. The previous meeting footage in
the video showed Committee Member Allen questioning Chair Sweitzer’s support of buffer
zones that would require cannabis grow facilities to be completely hidden from view. The video
then criticized Chair Sweitzer’s position on buffer zones by comparing the 75-foot setback
required by Monson town bylaws for solar farms with a proposed 200-foot buffer requirement
that the Committee was considering for cannabis grow facilities.
In his email, Chair Sweitzer suggested the video should be discussed at the Committee’s
next meeting, and he discussed the date of that next meeting. Attached to the email, and
referenced therein, was a two-page response to the video that Chair Sweitzer had written. In the
attached response, the Chair discussed factors that make growing marijuana different from
growing other crops. He also explained his understanding of the purposes behind different
zoning restrictions and the expectations residential abutters may have regarding a marijuana
grow facility. The response also contained his observations on the purposes behind state and
local regulations regarding marijuana. Finally, among other comments, the response concluded
by characterizing the video as “an attempt at misinformation” and Chair Sweitzer stated that he
was “quite unhappy to see this video which seems to have ties, if not produced by a member of
the marijuana bylaw committee.”
In response to the Chair’s email, Committee member Joan Tucker replied to all
Committee members on the same day, saying: “This video is both concerning and disturbing.”
Ms. Tucker, in the same email, also discussed the date of the next Committee meeting.

DISCUSSION
The Open Meeting Law seeks to balance the public’s interest in witnessing the
deliberations of public officials with the government’s need to conduct its business efficiently.
To that end, the law defines deliberation as:
[A]n oral or written communication through any medium, including electronic
mail, between or among a quorum of a public body on any public business within
its jurisdiction; provided, however, that “deliberation” shall not include the
distribution of a meeting agenda, scheduling information or distribution of other
procedural meeting or the distribution of reports or documents that may be
discussed at a meeting, provided that no opinion of a member is expressed. G.L. c.
30A, § 18 (emphasis added).

For the purposes of the Open Meeting Law, a quorum is a simple majority of the members of a
public body. G.L. c. 30A, § 18.
Although it is clear that certain administrative tasks are excluded from the definition of
“deliberation,” that exception includes a strong caveat: such administrative communications are
permissible “provided that no opinion of a member is expressed.” G.L. c. 30A, § 18; OML
2013-5. For example, the distribution of minutes ahead of a public meeting is permissible as
long as the minutes simply memorialize deliberation that took place at a preceding open meeting.

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See OML 2013-127. Email attachments are considered along with the body of an email when
determining whether a public body member has expressed an opinion. See OML 2014-152.
In addition, the expression of an opinion by one public body member on matters within
the body’s jurisdiction to a quorum of a public body is considered a deliberation, even if no other
public body member responds. See OML 2016-104; OML 2015-33; OML 2012-73. Linally,
documents that are circulated for the stated purpose of being discussed at a future meeting may
not be used to telegraph one member’s opinion to the other members ahead of an open meeting.
See OML 2014-148.
Here, Chair Sweitzer’s February 11, 2019, email attachment clearly expressed his opinion
about matters that are before the Committee, such as the proper siting of a marijuana grow
facility and the setback requirements that are appropriate for such a facility. Even the Chair’s
comments regarding the video itself fall within the definition of prohibited deliberation because
they effectively serve as a continuation of the debate between the Chair and Committee Member
Allen, pictured in the video, about issues that are before the Committee, such as the 200-foot
setbacks and requiring full screening for marijuana facilities. The email, with the attachment,
was sent to all members of the Committee, thereby reaching more than a quorum of the body.
Although Chair Sweitzer asks that the video and his reply be discussed at the next meeting, his
attached reply effectively let other Committee members know his opinion of the video and the
underlying debate ahead of the next meeting. This sharing of his opinion on matters the
Committee has jurisdiction over with a quorum of Committee members outside of a public
meeting constitutes deliberation outside of a public meeting, in violation of the Open Meeting
Law.
Finally, Committee Member Tucker, when she “replied all” to the Chair’s email, also
engaged in deliberation concerning the video. The statement “This video is both concerning and
disturbing.” communicates Ms. Tucker’s opinion on the matter, thereby taking sides in the
underlying debate on issues before the Committee.
Although we find that these emails violated the Open Meeting Law, because it appears
that only Chair Sweitzer and Ms. Tucker sent emails, we find that these were individual
violations, rather than a violation by the Committee as a whole. We note that there was nothing
improper in Ms. Tucker’s or Chair Sweitzer’s emails where they were merely discussing the
administrative question of when the next meeting of the Committee would be.
CONCLUSION

For the reasons stated above, we find that Chair Sweitzer and Ms. Tuber violated the
Open Meeting Law by deliberating outside of a public meeting. We order immediate and future
compliance with the Open Meeting Law. We also order that the Committee release to the public,
within 30 days following its receipt of this determination, the February 11, 2019, emails from
Chair Sweitzer and Ms. Tuber referenced in this letter, including attachments.
We now consider the complaint addressed by this determination to be resolved. This
determination does not address any other complaints that may be pending with our office or the
Committee. Please feel free to contact the Division at (617) 963 - 2540 if you have any
questions.

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 Sincerely,

Sarah Chase
Assistant Attorney General
Division of Open Government

cc: Jessica Allen

Monson Adult Use Marijuana Committee

This determination was issued pursuant to G.L. c. 30A, § 23(c). A public body or any
member of a body aggrieved by a final order of the Attorney General may obtain judicial
review through an action filed in Superior Court pursuant to G.L. c. 30A, § 23(d). The
complaint must be filed in Superior Court within twenty-one days of receipt of a final
order.