Welcome to the holiday edition of the Miyares and Harrington LLP newsletter. In the spirit of the season, we joyfully bring you the latest in municipal law news.
This year’s annual meeting of the Massachusetts Moderator’s meeting included a keynote panel of experts on the ever-changing regulation of marijuana, including our own Chris Heep. Chris spoke about the trials and tribulations of negotiating, reaching and enforcing Host Community Agreements with prospective marijuana licensees.

This month's newsletter features:
  • It Should Now Be Easier to Get Documents from the Massachusetts Commission Against Discrimination.

  • Hair Testing for Drug Use, Alone, is an Unreliable Basis to Bypass a Civil Service Candidate

  • More on Marijuana: Cannabis Control Commission Adopts New Regulations

  • Rapid Fire Updates – Comments Due on Proposed Revisions to the Wetlands Protection Regulations

  • Back to Trivia

Lights, Action, Camera! In My Public Building?
In Larrabee v. Massachusetts Commission Against Discrimination, the Appeals Court ruled that the Massachusetts Commission Against Discrimination (MCAD) could not deny requestors access to copies of discrimination charges made in open cases under investigation or of spreadsheets summarizing charge data. The decision by the Appeals Court overturned not only the Superior Court’s decision upholding MCAD’s action, but the Supervisor of Public Record’s opinion that the records were shielded from public disclosure.
From 1999 to 2015, MCAD had provided discrimination complaints and case data in response to public records requests without regard to whether the investigation of those charges was open or closed. In 2015, however, MCAD amended its policy and, since then, had provided complaint documents only after investigations had closed. MCAD would no longer provide information pertaining to open investigations; nor would it provide aggregate data.
MCAD raised three arguments in support of its policy:
  • First, MCAD argued that Exemption (a) to the Public Records Law, M.G.L. c.4, §7(26)(a), which permits an agency to withhold any records “specifically or by necessary implication exempted from disclosure by statute,” applied, citing to M.G.L. c.151B, §5, which is part of the Massachusetts antidiscrimination statute. The Court disagreed, finding no provision in Chapter 151B regarding the disclosure of complaints or case data.
  • Second, MCAD claimed that the investigatory exemption to the Public Records Law (M.G.L. c.4, §7(26)(f)), which authorizes the withholding of investigatory materials necessarily compiled out of the public view, empowers MCAD to deny disclosure of the requested records at its discretion. The Court did not address this argument directly, but pointed to the Commission’s own regulation, 804 CMR §1.04(4), which requires public disclosure except in certain circumstances. The Commission’s policy to withhold records under a discretionary exemption could not override a duly adopted regulation to the contrary.
  • Third, MCAD argued that providing copies of charges would result in the disclosure of details of a highly personal nature in violation of the privacy exemption to the Public Records Law (M.G.L. c.4, §7(26)(c)). The Court found this argument unpersuasive, given the process incorporated into that statute and its implementing regulations for the sealing of records and for concealing personal identifiers.
Hair Testing for Drug Use, Alone, is an Unreliable Basis to Bypass a Civil Service Candidate
The Supreme Judicial Court recently determined in Boston Police Department v. Civil Service Commission that a positive result from a hair sample drug test was not, by itself, enough evidence for the Boston Police Department to bypass a candidate for employment as a police officer. In so ruling, it overruled the Superior Court’s decision that had found in favor of the Department.
The Department requires that applicants for police officer positions pass a hair sample drug test. Michael Gannon failed that drug test when his sample tested positive for cocaine in 2010. Despite his strong denial of ever having used cocaine, the Department used the results to deny Gannon employment as an officer in 2013. Gannon appealed that decision to the Civil Service Commission, which concluded that the Department had failed to demonstrate a reasonable justification for the bypass, citing the combination of well-documented concerns regarding the reliability of the drug test and Gannon’s credible testimony. The Department sought review of the Commission’s decision before the Superior Court, which overturned the Commission’s decision. Gannon and the Commission appealed.
The SJC recognized that the Department is entitled to substantial deference with respect to its hiring decisions. However, the Court also recognized that the Commission is required to reverse a bypass decision when the Department fails to produce a reasonable justification by a preponderance of the evidence. The SJC held that the Commission gave proper deference to expert testimony and scientific studies that called into question whether the hair drug testing procedure could reliably prove that an individual had ingested cocaine. There was significant testimony about a history of false-positive results, the potential for cross-reactivity, and whether the test could ever prove that an individual had ingested a drug. The Court also concluded that the Commission had properly considered Gannon’s repeated denial of cocaine use and his request to be re-tested immediately.
The SJC decision makes clear that the case “is not about whether drug use provides reasonable justification for the department to bypass an applicant,” but rather the Commission’s determination that, by itself, the hair sample drug test was not enough to sustain the Department’s burden of proving by a preponderance of the evidence that Gannon ingested cocaine, particularly when coupled with evidence to the contrary.

More on Marijuana: Cannabis Control Commission Adopts New Regulations
In our September edition, we informed you that the Cannabis Control Commission approved regulations governing both adult and medical use of marijuana and that the revised regulations would take effect upon publication in the Massachusetts Register. On November 1, the Commission published the requisite notice, and the regulations took effect.
Here is a summary of the significant changes affecting municipalities:
  • Social Consumption Pilot Program: The regulations create a Social Consumption Establishment Pilot Program for the adult use of marijuana. Simply stated, the program permits the issuance of licenses for on-premises consumption in up to 12 municipalities in the Commonwealth. Under the program, licenses are reserved for business controlled by Economic Empowerment Priority Applicants, Social Equity Program Participants, Microbusinesses or Craft Marijuana Cooperatives, for an initial period of two years. The Commission may extend the pilot program for an additional year if the goals of the exclusivity period are not met. While the revised regulations create the pilot program, a change in state law that allows cities and towns to authorize social consumption is required before any licenses may be issued.
  • Delivery: A Delivery-Only license type will be offered for Economic Empowerment Applicants, Social Equity Program Participants, and Microbusinesses with a Delivery Endorsement from the Commission, for an initial period of two years. Adult use delivery businesses will be required to obtain marijuana and marijuana products from other licensed retailers, unless the license holder itself is a Microbusiness that grows or manufacturers its own marijuana and marijuana products. Delivery for adult use cannabis consumers will be permitted in municipalities in which retail sales are permitted or delivery businesses are located, as well as in any city or town that notifies the Commission that it will allow delivery businesses to operate within its borders. Service will be prohibited from dormitories and other university housing, commercial hospitality operations including hotels and bed-and-breakfasts, and federally subsidized housing. Municipalities that have prohibited retail establishments should review their ordinances or bylaws to determine whether delivery establishments are currently allowed. Based on the results of that review, there may be a need for amendments to such ordinances or bylaws to be adopted.
  • Energy and Environmental Standards: To implement the state’s energy and environmental standards for the cannabis industry, the new regulations include additional requirements for waste disposal, air pollution, lighting power density and compliance documentation. The regulations apply to both adult and medical use programs.
  • Public Health and Safety: Due, in part, to concerns over vaping, the new regulations require ingredients added to marijuana products to be disclosed on product labels. The regulations also permit the Commission to order the removal of products from licensees’ shelves or prohibit the sales after an informal hearing process and Commission consideration. Further, the Commission incorporated additional regulatory requirements over the transportation of cash received by marijuana businesses.
Rapid Fire Updates:

Comments Due on Proposed Revisions to the Wetlands Protection Regulations
MassDEP is proposing revisions to the Wetlands Protection Regulations, 310 CMR 10.00. The changes include:
  • The addition of a requirement that Conservation Commissions submit copies of Orders of Conditions to MassDEP either through eDEP or by certified mail, return receipt requested (not by regular mail or e-mail);
  • Clarification regarding abutter standing; and
  • An update to 310 CMR 10.55(2)(c) to refer to the Massachusetts 2016 Wetland Plant List published by the U.S. Army Corps of Engineers.
Comments on the proposed revisions are due January 30, 2020. More information, including dates of public hearings, is available at https://www.mass.gov/regulations/310-CMR-1000-wetlands-protection-act-regulations.

Question: What sport was described by nineteenth century Boston Rev. Skinner as “insidious wickedness,” and as “the gaping jaw of Hades”?
Last issue's question: Think of the name of one Massachusetts municipality, rearrange its letters and reuse one of the letters in the first name to form the name of another Massachusetts municipality. (Ex: “met” becomes “teem”) Name both municipalities.
Answer: There is more than one correct answer. You won if you came up with either of these: Acton → Canton; Webster → Brewster.
Winner: Congratulations to Bill Shaughnessy, Superintendent of the Water and Sewer Department of the Town of Wellesley to be the first to answer correctly. He came up with Acton → Canton. The answer probably either came to you quickly or not at all.

Local options at work.
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