Friday, October 31, 2008

Several Open Meeting Items Today

A number of open meetings items in the news today:
  • Boston City Council admits open meeting law violations. See the posts here and here from the blog The BIG Campaign, which say that the council has filed a motion that would allow judgment against it in a long-fought (and expensive) open meeting battle.

Thursday, October 30, 2008

The Wilkerson Case and the Open Meeting Law

Sen. Diane Wilkerson faces the possibility of prison for allegedly violating the law and the public trust. Yet other public officials involved in this case also may have violated the law and the public trust, but they are unlikely to face any consequences. That is because their violations were of the open meeting law -- one of the few laws on the books that carries no penalties for those who violate it.

The apparent open meeting law violation involves the Boston Licensing Board's issuance of the liquor license that is at the heart of the complaint against Wilkerson. Kevin McCrea wrote about this yesterday at his blog, The BIG Campaign, and Universal Hub picked up on it today. Consider this excerpt from the affidavit of FBI Special Agent Krista L. Corr, which forms the basis for the complaint against Wilkerson. It comes after the affidavit describes Wilkerson's alleged efforts to strong-arm the BLB into granting a license to the planned club Dejavu. References to CW are to the unidentified cooperating witness:
23. Boston Licensing Board "Smoke and Mirrors": On the same day, August 15, 2007, the BLB held a public hearing at Boston City Hall. Dejavu's application for a license did not appear on the agenda that day. Agents attended the public hearing and there was no public discussion of Dejavu's application or a public vote to grant Dejavu any type of license. Despite this, the attorney recruited by WILKERSON later left a message for the CW telling him that "the vote was in" and that the beer and wine license had been approved. When the CW subsequently told WILKERSON in a recorded call that there was no mention of Dejavu's application at the BLB public hearing but that the attorney claimed that the license was granted, WILKERSON responded that the way the BLB did its business was "all smoke and mirrors." The following Monday, August 16, 2007, the CW, at the attorney's direction, called WILKERSON and left her a voicemail message requesting that WILKERSON be "very, very nice" to the BLB Chairman at the meeting scheduled for that day. The attorney subsequently left a message on the CW's telephone stating that he had, "talked to the Senator [WILKERSON] this morning" and told her that the license was "all set."

25. Boston Licensing Board Awards Dejavu a Beer and Wine License: On August 16, 2007, the BLB issued a letter notifying Dejavu that its petition for a malt and wine license had been granted. On the same day, WILKERSON met with the BLB Chairman, the Senate President, the Boston City Council President, and Senator Y to discuss the status of the Dejavu license and related issues. The outcome of the meeting was an agreement that the City of Boston would submit, and WILKERSON would sponsor, legislation which would authorize 40 new nontransferable liquor licenses and 30 new nontransferable beer and wine licenses for the City of Boston. ... It was understood that Dejavu would receive one of these new special liquor licenses, if another one did not become available first, and that WILKERSON would be able to control several other licenses.
Surprising to me is that when I testified before Sen. Wilkerson on the need for open meeting law reform, she spoke forcefully in agreement. As a matter of fact, she co-chaired that hearing on June 19, 2007 -- just one day after the alleged bra-stuffing incident. Here is what I wrote about that hearing at the time:
In comments during the hearing, both Rep. Cabral and Sen. Dianne Wilkerson (D-Boston), the Senate chair, indicated their support for strengthening the enforcement provisions of the open meeting law. When an opponent of the bill testified that officials who violate the open meeting law do so innocently, Sen. Wilkerson responded that her experience suggested otherwise. She has served on numerous boards and commissions, she said, and has seen them "skate close to the edge a lot." Both Sen. Wilkerson and Rep. Cabral appeared to agree that adding penalties and attorneys' fees is necessary in order to enforce the law.
If the allegations against her are true, then even as she condemned officials who "skate close to the edge," she was already well onto the thin ice. Could the BLB's "smoke and mirrors" be the smoking gun that leads to open meeting law reform?

Monday, October 27, 2008

A Call for a Public Access Task Force

I tend to equate the suggestion, "Appoint a committee," with "Avoid a decision." But the more I read about the need for reform of Massachusetts' open-government laws, the more frustrated I get at lawmakers' lack of action. I now believe that this is one problem that appointing a committee could actually help fix. It should be a bipartisan task force, appointed by the governor, with a mandate to study the state's open meetings and public records laws and recommend a concrete slate of reforms. The committee should include state and local government officials, journalists, citizens, lawmakers, law enforcement officials, legal advocates and other interested parties.

Colman Herman's piece in the current issue of CommonWealth convincingly makes the case for the need for reform of the public records law. For the last two legislative sessions (that's four years) I and many others have presented the same case for the open meeting law. As I've argued in op-eds in The Boston Herald and The Boston Globe, in blog posts and in testimony before the legislature, the Massachusetts open meeting laws are among the weakest in the nation, with no consequences for the individual officials who break the law.

The need for reform is hardly breaking news. In addition to my law practice, I am executive director of the Massachusetts Newspaper Publishers Association. When I first took that job in 2004, the first major issue the membership asked me to tackle was public access. Their reporters and readers had complained about the escalating decrease in access ever since 9/11. We decided to focus on open meetings because that was where we saw the greatest need -- or, put another way, where we saw the least compliance with the law. We feared that pursuing an agenda of more comprehensive reform would meet multiple roadblocks.

But as Herman's piece and other recent developments help illustrate, public records and open meetings are not separate issues to be dealt with in different legislative bundles. My sense -- I need to double check my facts on this -- is that most states' laws address access to meetings and access to records in a single legislative scheme. This makes sense. It makes the applicable laws easier to find, easier to understand and easier to enforce. Perhaps this might be the first issue that this task force should take up.

Our state's public access laws are antiquated, unwieldy and often ineffective. If we are to achieve meaningful reform of these laws, there must be thorough study and thoughtful deliberation. That level of careful study rarely occurs in the course of a legislative session. If it is ever going to happen, I have come to believe, it must be through an officially sanctioned task force. Let the task force fashion a reform bill and hope the legislature then has the guts to act on it. In a state that has too long opted to avoid any decisions on public-access reforms, maybe appointing a committee would break the deadlock.

Tuesday, October 21, 2008

Ambrogi Elected Trustee of Bar Foundation

I am extremely honored to announce that I have been elected a trustee of the Massachusetts Bar Foundation, the premiere legal charity in Massachusetts working to increase access to justice for all people in the state. The MBF is the philanthropic partner of the Massachusetts Bar Association and is one of three charities designated to distribute IOLTA funds to programs that provide civil legal services and that enhance the administration of justice.

I have been a fellow of the MBF since 1992 and a life member since 2002. I have also served on its regional and subject-matter grant-making committees for several years. I was elected to fill the seat vacated by a retiring trustee, Carol Witt of Salem, and as such will serve an abbreviated term through January 2011. MBF President Laurence M. Johnson, a partner with Davis, Malm & D’Agostine in Boston, issued a statement announcing my election in which he said, "Attorney Ambrogi has been an active supporter of the MBF for many years, and we are delighted to welcome him to the Board. He brings a wealth of knowledge that will help the MBF to strengthen its work in promoting equal access to justice in the Commonwealth."

Yet Another Open Meeting Violation

Milford selectman violated "both the letter and the spirit" of the open meeting law when they met privately last summer with a real estate developer to discuss a proposed casino, the Worcester district attorney ruled this week. I take "the letter and the spirit" to imply that the board's violation was not just literal, but also intentional. Hardly matters, given that violations of the open meeting law in this state -- intentional or not -- carry no meaningful consequences.

Read more about the DA's ruling from The MetroWest Daily News, whose editor, Richard Lodge, initiated the complaint over the closed meeting. Notably, all the DA could do to remedy the violation was to order the board to release its minutes. This illustrates the fact that Massachusetts has one of the weakest open meeting laws in the nation in its provisions for enforcement. The Massachusetts Newspaper Publishers Association and others have pushed for the legislature to toughen the law, to no avail.

One of the most frequent arguments against a tougher law is that officials who violate it always do so out of negligence or misunderstanding -- never intentionally. Yet here is another example of a board contorting the clear language of the law in order to cut the public out of the conversation. This was an exploratory meeting to discuss a possible casino development in Milford. It was precisely the sort of subject about which the town's residents had every right to be informed. If only officials would consider the spirit of the law, perhaps they'd be less likely to violate its letter.

Sunday, October 19, 2008

As Open Meeting Law Burns, Legislature Fiddles

Massachusetts district attorneys have slapped the knuckles of at least two more town boards for violations of the open meeting law. I wrote here last week about the Worcester DA's ruling that the Charlton board of selectman violated the law by meeting in private to evaluate the town administrator. This week, the Worcester DA found a similar violation by the Harvard School Committee, ruling that it violated the law by conducting a significant portion of the school superintendent's evaluation in private. Not only that, but the school committee kept no written records of the process "so as to avoid public scrutiny," the DA found, according to a report published by Nashoba Publishing Online. Meanwhile, the Norfolk DA -- without expressly finding a violation of the law -- told selectmen in Holbrook that they should discontinue meeting in private to discuss a possible lease of town land, according to Wicked Local Holbrook.

The Massachusetts legislature will soon end a session in which it had its best opportunity in years to pass meaningful open meeting law reform. Rep. Antonio Cabral of New Bedford worked hard to put together a substantive bill. The AG had crafted her own bill. Rep. Cabral had brought a range of interest groups to the table to try to work out their differences -- from municipal lawyers to media groups to public interest groups. But the bill seems sure to die due to disinterest among legislative leaders.

In these waning days of the session, the legislature has found the time to debate an official state novel, pass a law freeing golf courses to sell alcohol anywhere on the course, designat a rock in Fall River as the state's official glacial rock, exempt certain antique-car seats from the seat belt law, and authorize Lynn to license a florist to sell alcohol. But it is unable to find the time to address the urgent need to clarify and strengthen the open meeting law.

A Worcester Telegram editorial this week said that public officials should easily understand the law's clear mandate: "to give the public maximum access to public decision-making. Excluding the public from decision-making -- via executive sessions, e-mail exchanges, chats at the local coffee shop or through an elaborate pre-evaluation procedure -- is a violation of the letter and spirit of the law." If only it were that easy. Unfortunately, whether negligently or intentionally, public officials routinely violate the open meeting law. Unless and until the legislature acts to clarify the law and give it some teeth, the violations will continue.

Monday, October 13, 2008

DA Says Town Broke Open Meeting Law

Worcester District Attorney Joseph D. Early Jr. has ruled that the Charlton, Mass., board of selectmen violated the open meeting law by meeting in private to evaluate the job performance of Town Administrator Robin Craver. The DA was acting on a complaint filed by the Telegram & Gazette, which reported the ruling in an Oct. 11 story, Town Manager Evaluation Ruled Illegal. In an Oct. 7 letter, the DA's office notified the selectmen that, in its opinion, the law requires performance evaluations of high-level public officials to be conducted in open session.

The case is interesting in that the selectmen sought to avoid an actual meeting. Instead, the chair sent out a summary evaluation and each board member reported back to the chair with comments. The chair compiled their feedback into a final evaluation, which he then discussed with the town administrator. Only after finishing the evaluation process did the chair read the summary evaluation at a public meeting.

The DA said that, even without a meeting, this process violated the law "by conducting the significant portion of the evaluation of the Town Administrator through a wholly written process that excluded the public." The letter continued: "The Legislature did not intend to allow Boards to shield their deliberations regarding performance evaluation of high-level employees from public disclosure by utilizing a process of written evaluations that are not made available to the public." In this sense, the case seems to parallel those involving "serial e-mails" or "serial meetings," where no single deliberative meeting is ever held but a violation is found nonetheless.

Wednesday, October 08, 2008

Springfield Acts to Open Police Board

I posted here last week about a ruling from the Hampden County district attorney that a Springfield board created by the mayor to review citizen complaints against police is not covered by the open meeting law. Now, The Republican reports that the City Council is considering re-establishing the board through a municipal ordinance, which would have the effect of bringing the board under the open meeting law. For now, the council sent the proposal to a committee for study. It will take it up again when the committee reports back.

Wednesday, October 01, 2008

Judge Grants Press Access to Poutre Testimony

A judge in Springfield ruled this morning that the news media will be allowed to cover the testimony of 14-year-old Haleigh Poutre if she appears in court to testify in the child abuse case against her stepfather, Jason D. Strickland.

According to a report published today by The Republican, Hampden Superior Court Judge Judd J. Carhart denied the request of the state Department of Children and Families to exclude media coverage if Poutre testifies. He said he would make sure that the press makes accommodations that will be sensitive to the girl, who now lives in a Boston rehabilitation hospital because of brain injury.

Lawyers for both The Republican and The Boston Globe argued for access. On Sunday, The Republican's publisher, Larry McDermott, published a column about his newspaper's request for access, Case Is About Accountability, Not 'Glory'.

Mass. Libel Case Survives Appeal

A libel case brought by a former Abington town official against the Brockton Enterprise will be allowed to proceed to trial, based on a ruling issued today by the Massachusetts Appeals Court. In Howell v. The Enterprise Publishing Company, the court refused to dismiss claims against the newspaper, despite the newspaper's arguments that its stories were protected by the "fair report" privilege.

The case involves a 2005 series of stories by reporters Elaine Allegrini and Allan Stein covering James F. Howell's termination from his position as superintendent of Abington's sewer department. His termination came after the town sewer commission determined that he had used town computers for personal business and for storing inappropriate images. Howell's libel suit alleged that the Enterprise defamed him by accusing him of storing pornography on town computers and by making other allegations that he says are false.

The Enterprise sought to have the case dismissed through summary judgment, which requires a finding that there are "no issues of material fact" that need to be decided through a trial. As to each of Howell's allegations, the court found that there were disputed issues of fact, making summary judgment inappropriate. Among the key contentions addressed by the court's decision:
  • The Enterprise described images on Howell's computer as pornographic, relying in part on the sewer commission's characterization of them as such. Howell contends that the images were comical, e-mailed to him by friends, and not pornographic. The court ruled that a jury should decide whether they were pornographic.
  • Some Enterprise reports about Howell alluded to the unrelated case of an East Bridgewater official who was found to have child pornography on his computer. These allusions, Howell argues, raised the insinuation that he had child pornography. The court agreed, finding that a "reader reasonably could conclude" there was an association.
  • One article inaccurately reported that a conflict-of-interest charge against Howell had been sustained. The Enterprise argued that the "gist" of its article was correct. But the court found that the "inaccuracy was not merely a question of degree."
A significant aspect of this opinion is the court's discussion of the fair report privilege -- the idea that a newspaper has a right to rely on and report what is contained in official government reports. As noted above, the Enterprise based its reporting in part on findings by the town sewer commission that characterized the images as pornographic. To that, the appeals court said:
"Even assuming, but not deciding, that the fair report privilege is otherwise applicable to the matters reported on in the articles about Howell, its protection extends only to reports that are both fair and accurate. ... In determining whether a report is fair and accurate, the test is whether a reporter's 'rough-and-ready summary' of the matter reported on is 'substantially correct.' ... Where there is a basis for divergent views, the question whether a report is fair and accurate is for the jury. ... As discussed, supra, here there are material factual issues in dispute regarding whether the articles are fair and accurate. Thus, the judge correctly concluded that summary judgment is not appropriate as to Howell's defamation claims."
Howell had also sued the Enterprise for invasion of privacy. The Appeals Court agreed with the Enterprise that the privacy claim should be dismissed, concluding that Howell's termination was a matter of legitimate public interest.

Police Board Not Bound by Meeting Law

The Massachusetts open meeting law does not apply to a board created to review citizen complaints against police, the Hampden County district attorney's office has decided, according to a report yesterday in The Republican newspaper. The opinion issued by Assistant District Attorney Katherine E. McMahon concludes that the Community Complaint Review Board is not a governmental body covered by the law and therefore does not have to post notices of its meetings.

Springfield's mayor created the nine-member board last year to review resident complaints against the police department. The executive order creating the board expressly stated that it "shall not be a board of the city, but a board of mayor." Given this, the DA's office concluded the board serves only as an adviser to the mayor.

I have not seen the DA's opinion letter. If this board is purely advisory, the ruling is probably correct -- even if unfortunate. The open meeting law does not apply to an individual government official such as a mayor, only to committees and boards. If official who is exempt from the law appoints an informal committee to provide advice on a matter within the authority of that official, that committee is also exempt from the law.

This interpretation is based on a 1991 Supreme Judicial Court decision, Connelly v. School Committee of Hanover, that held that a committee appointed by a school superintendent to assist him in hiring a school principal was not covered by the law.
"Of special significance is the fact that the superintendent, because he is clearly not a 'governmental body,' could, by himself, have accomplished the task of screening and interviewing candidates in a closed session, entirely free from the requirements of the open meeting law. This was his independent and exclusive statutory responsibility, ... and the selection committee was assembled merely to assist him in carrying out his responsibility. We see no persuasive reason to hold that an interviewing and screening process, which is exempt from the open meeting law when carried out by the superintendent, should be subject to the law when carried out by individuals informally appointed by the superintendent to assist him. The selection committee does not fall under the statute because it is not a committee of the town of Hanover but a committee of the superintendent."
This outcome nevertheless begs the question: Why not comply with the open meeting law? In other words, even though a committee is not required to follow the law, it is clearly permitted to do so. If the function of this board is to build citizen confidence in the Springfield police department, then shouldn't the board conduct its business in public view? The answer seems easy to me.