Hello LT,
I placed a call to the AGA office this afternoon and had a pleasant
conversation with Bethany Brown, ADA Coordinator at the Massachusetts Attorney
General's Office.
Sarah Liepert is 100% correct, Ms Brown voiced disagreement with the Towns
Legal Counsel and was quite empathetic with my concerns. Therefore, she urged
residents with disabilities ( including the elderly) to please contact the
ADA or reach out via their web site.
You also will find more information on their web site. Helpful links:
https://www.dol.gov/general/topic/disability/ada
https://www.mass.gov/news/memo-reasonable-accommodations-at-town-meetings
I hope this helps. My wish going forward is for everyone to have the
opportunity to vote. Everyone's voice matters.
Sincerely,
Theresa KGiles Road
On Friday, December 1, 2023 at 04:18:17 PM EST, Sarah Liepert
<[email protected]> wrote:
Dear LT,
Please scroll down to see the reply of Town Administrator Tim Higgins, which I
am sharing per his request. He includes the opinion of Town Counsel regarding
the matter.
Above it, you will see my response to Jane Marie, advising her of Mr. Higgins's
response.
Importantly, the Massachusetts AGO (Attorney General's Office) is not in
agreement with the opinion of the Town of Lincoln's Town Counsel.
You may contact Bethany Brown, ADA Coordinator at the Massachusetts Attorney
General's Office, at 781-429-9286. You may also document your concerns with
her. She is copied on this email as well.
All best,
Sarah LiepertTrapelo Rd.
From: Sarah Liepert <[email protected]>
Sent: Friday, December 1, 2023 10:57 AM
To: Jane Marie <[email protected]>; [email protected]
<[email protected]>
Cc: Pereira, Dan <[email protected]>; Hutchinson, Jim
<[email protected]>; Cannon Holden, Sarah
<[email protected]>; Higgins, Timothy S. <[email protected]>
Subject: Re: Your request for Reasonable Accommodation at Special Town Meeting
Re: [LincolnTalk] Voting on Saturday Dear Jane Marie,
Please get in touch with Bethany Brown, ADA Coordinator at the Massachusetts
Attorney General’s Office as soon as possible. Her cell is 781-429-9286. She is
copied on this email.
Importantly, the Massachusetts AGO (Attorney General’s Office) is not in
agreement with the Lincoln Town Counsel’s advisory opinion.
You may document your concerns regarding ADA Reasonable Accommodations with
Bethany Brown.
All the best,
Sarah LiepertTrapelo Rd., Lincoln
On Dec 1, 2023, at 10:37 AM, Higgins, Timothy S. <[email protected]>
wrote:
Hello Sarah and Jane Marie
The Town’s preparations for Town Meeting include a whole host of accommodation
measures. Remote voting is not one of them as Town Counsel has advised us that
remote voting is precluded by State Law. Below please find her formal opinion.
We are, however, live streaming the meeting so that folks at home will be
able to observe and listen. The instructions for tuning in are included on the
Town’s website.
Thank you for your question.
Tim Higgins
Timothy S. Higgins
Town Administrator
Town of Lincoln
16 Lincoln Road
Lincoln, MA 01773
[email protected]
781 259 -2601
Tim, this is to follow up on my initial response to you concerning reasonable
accommodations at town meetings. We understand that the Massachusetts Office
on Disability has taken the position that remote participation in a town
meeting is a reasonable accommodation for a person who cannot attend. In our
opinion, allowing remote participation in an open town meeting is specifically
prohibited by law and would fundamentally change both the nature and the
conduct of a town meeting.
As you are likely already aware, the Americans with Disabilities Act (“ADA”)
requires public entities to make “reasonable modifications” to their procedures
to accommodate persons with disabilities. What is “reasonable” is
fact-specific and depends upon the nature of the program and the accommodation
being sought. However, any change that would result in a “fundamental
alteration” to the program or service is not required. A fundamental
alteration is one that results in a change in the essential nature of the
service or program. Likewise, a requested accommodation is not required if it
would result in undue financial and administrative burdens.
The very purpose of a town meeting is for members of the community to gather
together to debate and vote of legislative issues of the Town. Allowing some
individuals to participate from a remote location fundamentally changes the
public, legislative process. Moreover, such action is specifically not allowed
by law. During the COVID-era revisions to various municipal laws,
representative town meetings were specifically authorized to meet remotely.
That authority was extended several times. During that same period, the
General Court considered whether remote participation should be allowed at open
town meetings; such a concept never received significant support, however, and
was not enacted. Moreover, allowing one or a small group of people to
participate remotely would result in undue financial and administrative burdens
to the Town. Not only would such a system be difficult and costly to
implement, it would be highly disruptive during the course of the meeting and
would require significant adjustments in the procedures that are usually
followed. Again, this position is not merely speculative. The COVID-era
relief discussed above authorized remote representative town meetings, but not
hybrid representative town meetings. The legislation extending such relief now
states clearly that hybrid remote town meetings, i.e., with some people
participating in person and some participating remotely, is permitted. No
similar authority is granted to open town meeting municipalities, however.
Where the Legislature has specifically authorized remote/hybrid town meetings
for representative town meetings but not open town meetings, this must be
viewed as intentional. In fact, the format of the open town meeting is
established in the Massachusetts Constitution and any changes to that format
would require a constitutional amendment. See, Opinion of the Justices, 229
Mass. 601, 609 (1918) (holding that the Constitution would have to be amended
to allow representative town meeting form of government). The fact that the
Legislature specifically allowed remote participation in representative town
meetings but not open town meetings strongly suggests that remote participation
in an open town meeting is not constitutional. In my opinion, a procedure that
would offend the state constitution would not constitute a reasonable
accommodation.
Therefore, it is my opinion that a requirement some Town Meeting members to
participate remotely in an in-person open town meeting would not be reasonable,
as it would result in a fundamental alteration of the meeting and would result
in undue financial and administrative burdens to the Town.
Please let me know if there are any additional questions on this issue.
Very truly yours,
Lauren
Lauren F. Goldberg, Esq.
KP | LAW
101 Arch Street, 12th Flr
Boston, MA 02110
(617) 654 1759
[email protected]
www.k-plaw.com
From: Sarah Liepert <[email protected]>
Sent: Friday, December 1, 2023 10:05 AM
To: Jane Marie <[email protected]>; Higgins, Timothy S.
<[email protected]>; Pereira, Dan <[email protected]>;
Hutchinson, Jim <[email protected]>; Cannon Holden, Sarah
<[email protected]>; [email protected]
Subject: Your request for Reasonable Accommodation at Special Town Meeting Re:
[LincolnTalk] Voting on Saturday
Dear Jane Marie,
I am forwarding your request toTown Administrator Tim Higgins. Please contact
Tim as soon as possible with your request for Reasonable Accommodations for
your mother. Tim’s office phone is 781-259-2601.
Provided that your mother is a registered voter, your request for Reasonable
Accommodations should be able to be accommodated.
Under the Americans with Disabilities Act (ADA), Towns have an obligation to
make their Town Meetings accessible to people with disabilities and to respond
to requests for reasonable accommodations at Town Meeting. The Massachusetts
Office on Disability wrote a Memorandum on 06/04/2023, posted on the mass.gov
website, to provide guidance on these obligations. Here is the link:
https://www.mass.gov/news/memo-reasonable-accommodations-at-town-meetings?_gl=1*3a3wsk*_ga*MTQ1ODM3MTQzNy4xNzAxNDM5MjM0*_ga_MCLPEGW7WM*MTcwMTQzOTI0MS4xLjEuMTcwMTQzOTI1Mi4wLjAuMA..
I have also copied this section from this mass.gov website at the end of my
email for your easy reference, highlighting the areas that are relevant to your
mother’s situation.
Importantly, the ADA, which is a Federal Law, requires Towns to make Reasonable
Accommodations. The Massachusetts Office on Disability’s memo specifies that
remote access could be as simple as a person with a disability watching the
Town Meeting on the Local Access Cable Station and calling or texting the
Moderator or an assistant Moderator if they wish to speak or vote on a warrant
article.
In addition to Lincoln’s Town Administrator, Tim Higgins, I am copying
Lincoln’s Assistant Town Administrator, Dan Pereira, who is also the ADA
Coordinator for Lincoln; Lincoln’s Chair of Selects, Jim Hutchinson; and
Lincoln’s Town Meeting Moderator, Sarah Cannon Holden; as well as Bethany
Brown, ADA Coordinator at the Massachusetts Attorney General’s Office, to make
them aware of your request for Reasonable Accommodation on behalf our your
mother, who lives at the Commons in Lincoln.
Please note, you may reach Bethany Brown on her cell at 781-429-9286 (cell) to
discuss any concerns about your request for Reasonable Accommodations for your
mother.
With best regards,
Sarah Liepert
Trapelo Road, Lincoln
6/04/2023
Massachusetts Office on Disability
Towns have an obligation under the Americans with Disabilities Act (ADA) to:
- Make their Town Meetings [1] accessible to people with disabilities and
- Respond to requests for reasonable accommodations at Town Meetings.
This memorandum aims to provide guidance on these obligations.
Making Town Meetings accessible to people with disabilities
Title II of the ADA prohibits discrimination based on disability in state and
local government services, programs, and activities. 42 USC § 12132.
Practically, this means that towns must make their Town Meetings accessible to
people with disabilities by providing accessible meeting spaces and proactively
considering what accessibility features may be necessary to allow people with
disabilities to meaningfully participate in the meeting. [2]
Provide a primary location that is accessible to all
A town should make every attempt to provide a primary location that is
accessible to all, and providing a secondary accessible location should only be
used as a last resort. [3] When considering the accessibility of a meeting
location, towns should consider whether:
- The meeting location can be accessed without climbing steps.
- Accessible parking spots and ADA-accessible restrooms are nearby and
accessible without climbing steps or navigating other barriers.
- There are good lines of sight and appropriate levels of light in the room
to allow a deaf individual to see a sign language interpreter.
- The room contains assistive listening devices, such as a sound loop.
- The room has appropriate AV connections/equipment to support communication
services such as Communication Access Realtime Translation (CART), remote
American Sign Language (ASL) interpreting, or remote participation, if needed.
- The room has adequate clearance for a person to navigate with a wheelchair
or other mobility device (e.g., wide enough aisles, open space to pull a chair
up to a meeting table).
If a town has traditionally held its Town Meeting in an inaccessible auditorium
or gym, the town must consider other possible venues. The town may want to
consider applying for a Municipal ADA Improvement Grant in order to improve the
accessibility of its Town Meeting venue.
Programmatic accessibility of Town Meetings
Towns must also consider the programmatic accessibility of their meetings. When
planning and advertising a meeting, towns should:
- Include contact information for the municipal ADA Coordinator on all
meeting notices and Town Meeting warrants, so residents know who to contact for
reasonable accommodations/modifications. An example of appropriate language for
a meeting notice would include “Town of ___ does not discriminate based on
disability and is committed to hosting accessible meetings. To request a
reasonable accommodation to attend Town Meeting, please contact the municipal
ADA Coordinator ______ at ______.”
- Consider booking communication services such as CART or sign language
interpretation early. These services can be booked through the Massachusetts
Commission for the Deaf and Hard of Hearing’s (MCDHH) Interpreter Referral
Program. Towns are advised to book these services at least two weeks in
advance, ideally as soon as you know the date of the next Town Meeting. If no
Town Meeting Members or other members of the public request CART or sign
language interpretation, you can cancel the vendors up to two business days in
advance of Town Meeting.
- To the extent possible, ensure that information about a meeting posted on
the town’s website, including presentation materials, is accessible to and
usable by people with disabilities. MOD’s website has guidance about how to
ensure electronic documents are accessible.
- Train Town Meeting Moderators and other municipal staff about meeting
accessibility, including:
- Providing verbal descriptions of images or print material being displayed
and/or discussed.
- Considering alternative formats for people to provide public comment. For
example, someone may need to provide their comment via ASL or some other
nonverbal form of communication.
- Ensuring that people with disabilities can be heard during the public
comment portion of a meeting if they cannot raise their hand or stand to
approach the microphone to demonstrate the desire to
-
Responding to requests for reasonable accommodations
Towns must make reasonable modifications to policies, practices and procedures
related to Town Meeting when the modifications are necessary to provide equal
access to individuals with disabilities, unless the town can demonstrate that
making the modifications would fundamentally alter the nature of the Town
Meeting. [4]
The interactive process
Towns must engage in the interactive process to determine the appropriate
reasonable accommodation for a person with a disability.
Upon receipt of a request for reasonable modification, a town must engage in
the interactive process with the requestor to determine the most appropriate
method for accommodating the requestor’s needs. The town should discuss with
the requestor how the functional limitation caused by their disability affects
their ability to access Town Meeting.
The goal of the interactive process is to arrive at an accommodation that is
feasible for the town and effective at providing access for the person with a
disability. The town is not required to provide precisely the accommodation
that the requestor asked for, but they must engage in the interactive process
and attempt to arrive at a solution that will meet the person’s needs.
If the accommodation requested is reasonable on its face, the town can approve
the accommodation without engaging in the interactive process. For example, a
discussion with the requestor may not be required if they are simply requesting
American Sign Language (ASL) interpretation at Town Meeting, as that request is
facially reasonable. However, the town should never deny a reasonable
accommodation without engaging in the interactive process.
It is usually not appropriate for the municipal ADA coordinator to request
medical documentation regarding a person’s disability for ADA Title II
requests. Rather, the town ADA Coordinator should take the requestor’s
statements at face value.
In rare circumstances, it may be appropriate to ask a requestor for limited,
tailored documentation of their disability-related need for a specific
reasonable accommodation. This may happen when the disability-related need is
not ascertainable after discussions with the requestor. Anyone with knowledge
of the requestor's disability-related need (for example: a medical provider,
social worker, or caregiver) can provide this documentation. Towns should ask
for the least amount of information they need to assess the appropriateness of
the request.
Remote participation
Sometimes, a person’s disability will necessitate remote participation. Remote
participation may be an appropriate accommodation at Town Meeting.
Massachusetts law does not bar remote participation at Town Meeting if it is
provided as a reasonable modification under the ADA.
Providing a reasonable modification under the ADA is a separate legal
requirement from the options available to municipalities under laws passed in
response to the COVID-19 pandemic. Some towns have confused the obligation to
provide remote access as a reasonable modification under the ADA with the
option to provide remote participation under Chapter 2 of the Acts of 2023 (and
its predecessors, Chapter 22 of the Acts of 2022 and Chapter 92 of the Acts of
2020). To clarify, the ongoing obligation to provide a reasonable modification
under the ADA applies to all town programs, activities, and services, including
Town Meetings (whether open or representative), and predates the COVID-19
pandemic.
The ADA requires towns to make reasonable modifications to its policies,
practices, and procedures to allow people with disabilities to access town
programs, activities, and services, including Town Meetings. Granting remote
participation as a reasonable modification to the general rule that Open Town
Meetings must be held in person does not change the nature of the meeting as a
whole and does not make it a “hybrid” meeting in derogation of M.G. L. c. 39, §
9. Allowing individuals to participate remotely as a reasonable accommodation
also does not make a Representative Town Meeting a remote or hybrid meeting
under Chapter 2 of the Acts of 2023.
If a meeting is noticed as “in person” and the town grants a reasonable
accommodation to an individual with a disability to participate remotely, the
meeting remains an “in person” meeting. It does not become a “hybrid” meeting
if remote participation is allowed solely as a reasonable accommodation under
the ADA. This is the same principle as if the meeting were interpreted in
American Sign Language (ASL) as an accommodation for a person with a
disability: the meeting is still held in spoken English and does not become a
meeting held in ASL just because an accommodation is provided for a person with
a disability.
When considering the appropriateness of a request for remote participation at
Town Meeting by a person with a disability, the town’s ADA Coordinator may
inquire how the requestor’s functional limitations associated with their
disability prevent them from attending in person. The town should consider
whether it is administratively feasible to provide remote access. Remote access
can come in a variety of forms, from very simple to very complex. For example,
remote access could be as simple as a person with a disability watching the
Town Meeting on the Local Access Cable Station and calling or texting the
Moderator or an assistant Moderator if they wish to speak or vote on a warrant
article. Remote access could also mean allowing participation via a web-meeting
platform if the town has the technology infrastructure for this to be feasible.
Towns that anticipate needing to upgrade their equipment and infrastructure to
allow for remote participation at Town Meeting may want to consider applying
for a Municipal ADA Improvement Grant to assist with funding this project.
For questions about this guidance, please contact the Massachusetts Office on
Disability:
Online: www.mass.gov/MOD/ContactUs
Phone: 617-727-7440
Footnotes
- When we refer to Town Meetings in this memo, we are referring to both Open
Town Meetings under M.G. L. c. 39, § 9 and Representative Town Meetings under
M.G.L. c. 43A.
- See, 28 CFR 35.130(a); 28 CFR 35.149; 28 CFR 35.150(a); 28 CFR
35.150(b)(1).
- 28 CFR 35.130(d).
- 28 CFR 35.130(b).
Massachusetts Office on Disability
The Massachusetts Office on Disability (MOD) provides information, guidance,
and training on disability-related civil rights and obligations. Using our
expert knowledge, we help people with disabilities understand their rights and
opportunities to improve access. We also help cities, towns, places that serve
the public, and state government agencies understand their accessibility
obligations.
On Dec 1, 2023, at 8:36 AM, Jane Marie <[email protected]> wrote:
Good Morning,
My mother moved into The Commons in Lincoln over the summer and has been
following the discussion about Saturday's vote. Her new neighbors were giving
her a bit of a run-down on what the Special Meetings are like and she's
concerned she won't be able to attend. She has limited mobility and some
medical issues that would prevent her from sitting in an auditorium for hours
at a time (not to mention the ongoing worry about covid in such a large group).
How can she still vote without attending the meeting?
Thank you for any insight you can provide!
Jane Marie
--
The LincolnTalk mailing list.
To post, send mail to [email protected].
Browse the archives at https://pairlist9.pair.net/mailman/private/lincoln/.
Change your subscription settings at
https://pairlist9.pair.net/mailman/listinfo/lincoln.
--
The LincolnTalk mailing list.
To post, send mail to [email protected].
Browse the archives at https://pairlist9.pair.net/mailman/private/lincoln/.
Change your subscription settings at
https://pairlist9.pair.net/mailman/listinfo/lincoln.
--
The LincolnTalk mailing list.
To post, send mail to [email protected].
Browse the archives at https://pairlist9.pair.net/mailman/private/lincoln/.
Change your subscription settings at
https://pairlist9.pair.net/mailman/listinfo/lincoln.
