Thursday, September 11, 2008

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.


theszak said...

Extracts from the Report presented to the Rules Committee of the Boston City Council
by paul.walkowsi at

theszak said...

Sicut Patribus Sit Deus Nobis.
God Be with Us as He Was with Our Fathers

Civitatis Regimine Donata A.D.1822.
City Status Granted by the Authority of the State
in the Year of Our Lord 1822

Bostonia. Condita A.D. 1630.
Boston, Founded in the Year of Our Lord 1630

Offered by Councillor SAM YOON




WHEREAS, The City of Boston currently provides, via the City Clerk, City Council meeting minutes and these records are available to the public on the internet; and

WHEREAS, The Open Meeting Law and Public Records Law is meant to cultivate public dialogue on governmental action and ensures this by imposing minimal standards for meeting minute content; and

WHEREAS, The City already meets these record standards; however, we should go beyond the minimum standards and make our City Council minutes not only publicly available, but more understandable; and

WHEREAS, Increasing the readability of our Council meeting minutes will foster public understanding and involvement in local government; NOW, THEREFORE

Be it ordained by the City of Boston, as follows that the City of Boston Code be amended by adding the following:-

Section 1.
CBC Chapter II is hereby amended by appending the following to 2-10.1 after the first paragraph:-

(a) In addition to keeping records of City Council meetings pursuant to M.G.L. c. 39, s. 23B, M.G.L. c. 66, s. 5A, and 950 CMR 32.00, the City Clerk shall make comprehensible City Council minutes.

For purposes of this subsection only "comprehensible City Council minutes" means a record of a City Council meeting translated from parliamentary procedure wording into plain language, including a brief summary of each topic discussed and/or all votes or formal decisions made during the meeting.

Under no circumstances shall the comprehensible City Council minutes include the substance of debates by and among the members of the City Council pursuant to chapter 447 of the Acts of 1947.

The City Clerk shall make the comprehensible City Council minutes electronically accessible on the City's website no later than two weeks after the meeting in question.

Section 2.
The provisions of these sections will become effective sixty (60) days after passage.

Research the City Code