[LincolnTalk] Fwd: Your request for Reasonable Accommodation at Special Town Meeting Re: Voting on Saturday

Fri, 01 Dec 2023 14:49:46 -0800

Please see the note below from Tim Higgins. Our Town Counsel had advised that remote voting is precluded under State Law. 

Thank you. See you tomorrow. 

Sarah Cannon Holden

Begin forwarded message:

From: "Higgins, Timothy S." <higgi...@lincolntown.org>
Date: December 1, 2023 at 11:41:53 AM EST
To: Sarah Liepert <sarahliep...@hotmail.com>, Jane Marie <janiemarie...@outlook.com>, bethany.h.br...@mass.gov
Cc: "Pereira, Dan" <perei...@lincolntown.org>, "Hutchinson, Jim" <jhutchinsonsel...@lincolntown.org>, "Cannon Holden, Sarah" <sarahcannonhol...@gmail.com>, "Pereira, Dan" <perei...@lincolntown.org>
Subject: RE: Your request for Reasonable Accommodation at Special Town Meeting Re: [LincolnTalk] Voting on Saturday



Hello everyone –

 

We have been in discussion with the Attorney General’s Office and have shared Town Counsel’s opinion.  We expect to have ongoing dialogue with them, and with the Mass Office of Disability next week.  In the meantime, we have been reaching out to anyone who has expressed a particular challenge to explore possible accommodations, over and above those we currently offer, short of providing remote voting which Town Counsel has advised is precluded under state law.

 

Tim Higgins

 

 

Timothy S. Higgins

Town Administrator

Town of Lincoln

16 Lincoln Road

Lincoln, MA 01773

 

higgi...@lincolntown.org

781 259 -2601

 

 

 

From: Sarah Liepert <sarahliep...@hotmail.com>
Sent: Friday, December 1, 2023 10:58 AM
To: Jane Marie <janiemarie...@outlook.com>; bethany.h.br...@mass.gov
Cc: Pereira, Dan <perei...@lincolntown.org>; Hutchinson, Jim <jhutchinsonsel...@lincolntown.org>; Cannon Holden, Sarah <sarahcannonhol...@gmail.com>; Higgins, Timothy S. <higgi...@lincolntown.org>
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 Liepert

Trapelo Rd., Lincoln



On Dec 1, 2023, at 10:37 AM, Higgins, Timothy S. <higgi...@lincolntown.org> 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

 

higgi...@lincolntown.org

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

lgoldb...@k-plaw.com

www.k-plaw.com

 

 

 

 

 

 

 

From: Sarah Liepert <sarahliep...@hotmail.com>
Sent: Friday, December 1, 2023 10:05 AM
To: Jane Marie <janiemarie...@outlook.com>; Higgins, Timothy S. <higgi...@lincolntown.org>; Pereira, Dan <perei...@lincolntown.org>; Hutchinson, Jim <jhutchinsonsel...@lincolntown.org>; Cannon Holden, Sarah <sarahcannonhol...@gmail.com>; bethany.h.br...@mass.gov
Subject: Your request for Reasonable Accommodation at Special Town Meeting Re: [LincolnTalk] Voting on Saturday

 

Dear Jane Marie, 




 

I am forwarding your request to Town 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: 

  1. Make their Town Meetings [1] accessible to people with disabilities and 
  2. 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: 
  1. The meeting location can be accessed without climbing steps. 
  2. Accessible parking spots and ADA-accessible restrooms are nearby and accessible without climbing steps or navigating other barriers. 
  3. 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. 
  4. The room contains assistive listening devices, such as a sound loop. 
  5. 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. 
  6. 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: 

     
  1. 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 ______.” 
  2. 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. 
  3. 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. 
  4. Train Town Meeting Moderators and other municipal staff about meeting accessibility, including: 
    1. Providing verbal descriptions of images or print material being displayed and/or discussed. 
    2. 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. 
    3. 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  
  1.  

    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 
  1. 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. 
  2. See, 28 CFR 35.130(a); 28 CFR 35.149; 28 CFR 35.150(a); 28 CFR 35.150(b)(1). 
  3. 28 CFR 35.130(d). 
  4. 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 <janiemarie...@outlook.com> 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

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