Mass. Court Says News Carrier is Employee

In a case involving the Worcester Telegram and Gazette, the state Appeals Court ruled yesterday that independent news carriers are to be considered employees under the state's unemployment compensation law. The ruling hinged on the "degree of control" exercised by the newspaper over the carrier, with the court finding that the T&G exercised greater control than did the Athol Daily News in a 2003 case in which the Supreme Judicial Court reached the opposite conclusion.

• The court's opinion: Driscoll v. Worcester Telegram & Gazette.
• The T&G news report: State Appeals Court rules T&G carrier as employee.
  

Key excerpts on the control issue:

"WT&G retained control over its carriers' routes by requiring that each carrier provide a list of the delivery order, and continue to deliver the newspapers in that order. WT&G's control of the routes included the right to require carriers to deliver to some customers before others, and to change the routes or papers to be delivered.

"Furthermore, the district manager directly supervised the new carriers, and retained the authority to go on the route to determine if the carrier was performing his job to WT&G's and the customers' satisfaction. WT&G required its carriers to modify their performance to satisfy a customer, and could discharge a carrier because of customer complaints. ... Other undisputed facts support the conclusion that Driscoll was an employee and further distinguish the circumstances in this case from those in Athol Daily News. WT&G reserved the right to demand additional services from its carriers, such as delivering product samples or installing delivery tubes. The publisher in Athol Daily News had no such right. ... WT&G carriers did not own the newspapers, which remained the property of WT&G, nor could they sell the papers at a price higher than that established by WT&G. WT&G's customers paid WT&G directly and WT&G paid the carrier, after deducting all fees and redress charges, for all customers on the route, regardless of whether a particular customer had paid WT&G. The News carriers, on the other hand, purchased the papers from the publisher, had the right to set their own price per newspaper and, if the customer paid the publisher directly, the News refunded the carriers once the customer had paid the publisher.(11) Id. at 173. While the carriers in Athol Daily News could deliver the papers 'on foot, by bicycle, automobile, motorcycle, or otherwise,' id. at 178, WT&G required its carriers 'to have a reliable motor vehicle.'

"Additionally, WT&G required that it be notified in writing, in advance, of any delegated substitute carrier and the period of delegation, and prohibited the use of substitute carriers with delivery histories that it did not deem acceptable. WT&G also required its carriers to obtain approval before giving customers notices concerning future deliveries of its papers. No such restrictions on substitutes were imposed on the carriers in Athol Daily News. Rather, '[w]ithout approval from the News," the News carriers could "be assisted by anyone in the delivery of the newspapers.'"

Podcast: Ike's Impact on Texas Lawyers

When Hurricane Ike hit the Texas coast, lawyers were not spared. Many lawyers were hard hit in both their profesisonal and personal lives. On this week's episode of the legal-affairs podcast Lawyer2Lawyer, my cohost J. Craig Williams and I interview Bill Livesay, executive director of Andrews Kurth LLP in Houston, and Miriam Rozen, staff reporter for Texas Lawyer newspaper. They share their accounts of Hurricane Ike and discuss its impact on the broader legal community.

Listen to or download this week's program from this page.

Nantucket Ordered to Release Records

Acting on an appeal by the Inquirer and Mirror newspaper, the Massachusetts Division of Public Records has ordered Nantucket officials to release a confidential settlement agreement entered into with a former town employee, the Inquirer and Mirror reports today. The town had denied the newspaper's public records request, citing privacy concerns.

New Complaint Filed on Open Meeting Law

From today's Worcester Telegram & Gazette: "The Telegram & Gazette yesterday filed a violation of the Open Meeting Law complaint with Worcester District Attorney Joseph D. Early Jr.’s office regarding a Sept. 8 Water-Sewer Commission meeting that was not posted."

Northeastern Launches First Amendment Center

Northeastern University and the New England First Amendment Coalition have teamed up to launch the New England First Amendment Center, a project designed to focus public attention on access to public records and meetings. From Friday's announcement:

The First Amendment Center will continuously update its website with news about public access and First Amendment issues from across New England and around the nation. It will offer a wealth of information for citizens, journalists and public policy organizations that depend on open access to government. The Center will maintain a Hotline to advise citizens who are seeking public documents, and will conduct original research into issues of government transparency. The Center plans to host seminars on public records statutes and open meeting laws for journalists, municipal officials and lawmakers.

Coordinating the work of the center will be Walter V. Robinson, the former editor of the Boston Globe's Pulitzer Prize winning Spotlight investigative team. The center will also maintain a blog with contributions from Robinson; Dan Kennedy, assistant professor of journalism at Northeastern and author of the blog Media Nation; Doug Clifton, director of the New England First Amendment Coalition; and Tom Heslin, president of the coalition and interim executive editor at The Providence Journal.

Bloggers Offered Insurance, Legal Training

The Media Bloggers Association is spearheading a project to provide bloggers with first-of-its-kind liability insurance as well as free online training in media law. I have full details in a post today at Law.com's Legal Blog Watch.

Judges/Journalists Workshop Tomorrow

I will be speaking tomorrow at the New England regional Judges/Journalists Workshop in Portsmouth, N.H., sponsored by the National Center for Courts and Media.

Boston Flips Open Government on it Face

How does that saying go about the devil reading the Bible to his own ends? That was all I could think of as I read a report arguing that the First Amendment gives Boston city councilors the right to conduct the people's business behind closed doors. I first heard about it through a story in the Boston Herald (Secret society: City Council mulls end to open meetings) and then obtained a copy through a post to a listserv. Part of a longer report, the discussion about the open meeting law is titled Remedial response to adverse judicial decisions interpreting the state's Open Meeting Law (PDF). The most recent of those "adverse decisions" was McCrea v. Flaherty, in which the state Appeals Court ruled that the Boston City Council has repeatedly violated the open meeting law.

Thankfully, the absurdity of the report has already been pointed out by Dan Kennedy, Sam Bayard and the editorial page of the Boston Herald. I say "thankfully" because the report is so patently absurd that I would not know where to start. As someone who has spent much of the last four years working for reform of the Massachusetts open meeting laws, I can say that I agree with one conclusion of the report: the laws need reform. From there, we part company and head off in diametrically different directions.

The report is based on two premises that are not merely weak, but downright wrong. The first is that the open meeting law prohibits public officials from speaking "offline" -- from exchanging "their views, concerns, strategies and/or suggestions in private with one another." It does not. As the commentators cited above all correctly note, it prohibits private meetings only among a quorum of officials. The second premise is that this "prohibition" on private speech between public officials violates their free-speech rights. That is the most extreme contortion of the First Amendment I've ever heard or read.

The report goes on for some 30 pages before ending with three alternative recommendations for addressing this "problem":

• Option 1: Amend the open meeting law to say: "Nothing contained in this Act shall preclude an individual legislator from meeting with colleagues to build support for, gather consensus toward, or solicit cosigner for or against proposed legislation or a committee report, nor shall a gathering of members in private to discuss strategy or ascertain the level of support for an item before or coming before the body constitute a violation of this act. The term quorum shall not apply to such gatherings."

• Option 2: Delete from the law the phrase, "No quorum of a governmental body shall meet in private for the purpose of deciding on or deliberating toward a decision on any matter except as provided by this section," and then add language redefining the word "meeting" so that it would not apply to "deliberative exchanges, verbal or otherwise, between elected officials, singularly or collectively, seeking support for, building consensus toward or devising strategies to support or defeat legislation, or any other matter that may come before the body."

• The final recommendation -- one the report calls "the ideal arrangement" -- would be to amend the open meeting law to exempt from its coverage "local legislative bodies." In other words, just let the city council meet in private as much as it wants.
  

The Boston Herald's editorial is square on point when it refers to this report as arrogant and insulting. A Boston City Council committee was scheduled to discuss it yesterday. I have not heard what came out of that meeting. Let us hope that the councilors sent this report straight to the circular file. Yes, we need reform of the open meeting law in this state. But we need reform that strengthens and protects the public's right to know, not "reform" that protects politicians from public scrutiny.

Read the report and decide for yourself: remedialresponse.pdf.