Wednesday, December 15, 2004

Mass. publishers file bill to toughen open meeting laws

In a bid to encourage public officials' compliance with the state's open meeting laws, the Massachusetts Newspaper Publishers Association has filed legislation that would toughen the penalties for violators and award court costs and attorneys' fees to individuals who bring enforcement actions.

Sponsored by Rep. Arthur Broadhurst (D-Methuen), the bill would impose civil fines of $1,000 on any government body that violates the law and $500 on each government official who violates the law. Officials who "knowingly and intentionally" violate the law would be guilty of a criminal misdemeanor punishable by a fine of up to $1,000 for a first offense and up to $2,500 for subsequent offenses.

If enacted, the bill would also make government entities liable for the attorneys' fees and court costs of individuals who sue to enforce the open meeting laws. Plaintiffs would be entitled to recover their costs and attorneys' fees even if the entity corrects its violation after the lawsuit is filed, if the plaintiff, before filing suit, had requested in writing that the meeting be opened and the entity had refused.

Existing Massachusetts law allows a fine of up to $1,000 against a local government entity that violates the open meeting law, but not against state government entities. It has no civil or criminal penalties for individual state or local officials who violate the law. The law allows three or more registered voters to file lawsuits to enforce its provisions, but it does not allow them to recover their costs or attorneys' fees.

In October, the MNPA concluded a 50-state survey of opening meeting law enforcement provisions, finding that Massachusetts was among the most lenient of any state in allowing government officials to violate the law without fear of consequences.

Among the findings of the MNPA's survey:
  • Civil penalties. Forty states authorize some sort of penalty – either civil or criminal or both – for violations of their open meeting laws. Of these, 23 expressly authorize civil penalties. Although Massachusetts law authorizes penalties against local – but not state – government bodies, many states go further, imposing civil penalties directly against the government officials who violate the law.
  • Criminal sanctions. Twenty-one states make it a misdemeanor criminal offense for a public official to violate the open meetings law. These states provide fines for a first offense of as much as $1,500. Some states also include imprisonment as a potential sanction, in some cases for up to one year. States often increase the penalties for repeat offenders.
  • Voiding. The majority of states give their courts discretion to declare void any action taken in violation of the law. Some states take away the discretion, requiring that actions taken in violation of the law be considered null and void as a matter of law.
  • Private right of action. While most laws provide for enforcement by the state attorney general or local district attorney, many also give private individuals the right to sue to enforce the law. In Massachusetts, the law requires at least three registered voters to file such a suit. Other states require only one plaintiff. While some require that the plaintiff be a citizen, a taxpayer or someone aggrieved by the violation, most allow any person to file. Many states further require that courts hear and decide these cases within strict timetables.
  • Attorneys' fees and costs. Without a provision for recovery of costs and attorneys' fees, private individuals are less likely to seek enforcement of the law, even if the law gives them the right. Forty states that provide a private right of action also allow the prevailing plaintiff to recover costs, and 37 authorize attorneys' fees. In most cases, these are to be paid by the government entity, but some states also require payment by officials who intentionally violate the law.
The bill has not yet been assigned a number. If you would like more information about the bill, please feel free to contact me.

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