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