Tuesday, July 20, 2010
Boston Globe: Open Meetings Law Irks Many
Reporter Sean Murphy has a good overview today in The Boston Globe of some of the issues swirling around the new Massachusetts open meeting law. He quotes me talking about the law's lack of teeth. "The fact that public officials can violate the open meeting law and not face consequences is a travesty," I say in the piece.
Thursday, July 15, 2010
AG Sets Public Hearings on Open Meeting Regs
The Attorney General's Office today announced a schedule of public hearings on proposed regulations to implement the new open meeting law that took effect July 1. Hearings will be held Aug. 5 in Boston, Aug. 9 in Worcester, Aug. 10 in Springfield, and Aug. 11 in New Bedford. See the notice for times and locations. Testimony may also be presented in writing, the notice says.
Thursday, July 08, 2010
Poll: Is the Open Meeting Law Tough Enough?
Should there be tougher penalties against public officials who violate the open meeting and public records laws? The Patriot Ledger is conducting a poll. Head on over and cast your vote.
The poll follows its story and video yesterday depicting a clear violation of the law by the Weymouth Housing Authority. (I blogged it also.)
Regular readers of this blog will know how I voted in the poll. I have long maintained that Massachusetts has one of the weakest open meeting laws in the nation because it lacks teeth. The majority of states impose civil or criminal penalties on public officials who violate the law. In Mass., officials who violate the law face no monetary consequences, even if their violations are intentional and repeated.
Wednesday, July 07, 2010
Weymouth Housing Authority Head Picked in Secret
When a government board makes a hiring decision, it is supposed to do it in public, as required by the state's open meeting law. The law permits a board some leeway to act privately when first screening potential candidates. But by the time the board gets to consideration of the finalists, the public has a right to sit in on that process.
Apparently, this is news to the Weymouth Housing Authority. The Patriot Ledger reports that the authority's board of commissioners made its selection of a new executive director without ever discussing the selection in a public meeting. The board went straight from conducting interviews with finalists to making a final job offer, without ever meeting in public to discuss who it would select from among the candidates and why. This is a clear violation of the law.
When local citizens protested the closed-door meeting at which the board made the job offer, the board threatened to have them forcibly removed. A Patriot Ledger reporter caught the event on videotape:
Apparently, this is news to the Weymouth Housing Authority. The Patriot Ledger reports that the authority's board of commissioners made its selection of a new executive director without ever discussing the selection in a public meeting. The board went straight from conducting interviews with finalists to making a final job offer, without ever meeting in public to discuss who it would select from among the candidates and why. This is a clear violation of the law.
When local citizens protested the closed-door meeting at which the board made the job offer, the board threatened to have them forcibly removed. A Patriot Ledger reporter caught the event on videotape:
Monday, July 05, 2010
AG to Decide Whether Official's Blog Violates Open Meeting Law
I wrote in May about local-government officials in Western Massachusetts who asked the district attorney there to decide whether blogging by a public official can violate the open meeting law. Now, The Republican reports that the district attorney's office is referring the matter to Attorney General Martha Coakley, whose office took over exclusive responsibility for enforcement of the open meeting law as of July 1.
Meanwhile, in Framingham, officials are concerned that a public listserv might violate the law, the Metrowest Daily News reports. The listserv, which focuses on local government issues, has some 1,500 members, several of whom are local officials.
As I said in my earlier post, I believe that a blog, as a general rule, would not violate the open meeting law. The danger would be in the comments. The safest solution is simply to turn off comments.
As for the listserv, the answer is that if a majority of members of a board use the listserv to "deliberate" about an issue within their authority, then they're probably running into trouble.
Meanwhile, in Framingham, officials are concerned that a public listserv might violate the law, the Metrowest Daily News reports. The listserv, which focuses on local government issues, has some 1,500 members, several of whom are local officials.
As I said in my earlier post, I believe that a blog, as a general rule, would not violate the open meeting law. The danger would be in the comments. The safest solution is simply to turn off comments.
As for the listserv, the answer is that if a majority of members of a board use the listserv to "deliberate" about an issue within their authority, then they're probably running into trouble.
Friday, July 02, 2010
Two More News Items on New Open Meeting Law
Two more items from the news about the new open meeting law:
NYT Reporter on Blogs, Attribution and Fair Use
Bloggers rely heavily on maintstream news sources for topics. What obligation does a blogger have to give attribution to an original source? To what extent can a blogger use the content of a news story?
We explore these and related issues with New York Times sports reporter Alan Schwarz this week on the legal-affairs podcast Lawyer2Lawyer. Click the link to download or stream this week's show.
We explore these and related issues with New York Times sports reporter Alan Schwarz this week on the legal-affairs podcast Lawyer2Lawyer. Click the link to download or stream this week's show.
Thursday, July 01, 2010
Three Stories About the new Open Meeting Law
Here are three stories from today's news that focus on efforts by local officials to prepare for the new open meeting law that took effect today:
Clearly, local officials aren't pleased. One article quotes Gardner Mayor Mark P. Hawke saying of the law, :It's a solution in search of a problem and it is another unfunded mandate." Another quotes Duxbury Town Clerk Nancy Oates, "It’s idiotic."
Clearly, local officials aren't pleased. One article quotes Gardner Mayor Mark P. Hawke saying of the law, :It's a solution in search of a problem and it is another unfunded mandate." Another quotes Duxbury Town Clerk Nancy Oates, "It’s idiotic."
AG Posts Open Meeting Law Documents
With today the first day of her new consolidated authority over enforcement of the state open meeting law, Attorney General Martha Coakley published several key open meeting law documents. They are:
For anyone with questions about the new law, I recommend you review the Open Meeting Law Guide, which explains its provisions in plain English.
For anyone with questions about the new law, I recommend you review the Open Meeting Law Guide, which explains its provisions in plain English.
The Muzzle Awards and the Open Meeting Law
One "honoree" of the 13th Annual Muzzle Awards, published today by The Phoenix, is the Massachusetts legislature, cited for playing a shell game with a weak open meeting law. Since I'm quoted in that write-up, I am compelled to point out that the piece didn't get it quite right. I wholeheartedly agree that the legislature side-stepped an opportunity to add "teeth" to the law and even, to a degree, took a step backward. But not precisely as described.
Under the new open meeting law, Dan Kennedy writes, "a public body can no longer be found to have broken the open-meeting law unless there's a ruling that its behavior was 'intentional.'"
That is not correct. No finding of intent is required for the AG to conclude that the law was violated. The "intent" requirement applies to the remedy the AG may impose if she finds a violation.
The law provides various non-monetary remedies the AG is authorized to impose -- order an open meeting, nullify a meeting vote, require attendance at training, and others. It has only one monetary penalty -- a $1,000 fine for an "intentional" violation.
This fine was in the old law, but without the "intentional" requirement. By adding the necessity to prove "intent" under the new law, the legislature made it much harder to impose a fine for an OML violation.
On top of that, the Massachusetts Newspaper Publishers Association, of which I am executive director, has long argued that the $1,000 fine is an inadequate sanction, because it is imposed on the board, as a whole, rather than on any specific individual who violates the law. The net effect of this is that a public official can violate the law, but the taxpayers have to pay the penalty, should one be imposed.
The majority of other states handle this differently. They provide for monetary sanctions directed against the individual members of a board who violate the law. Some states even make it a crime to violate the open meeting law. In the context of individual penalties, the "intent" requirement makes sense, because no one wants to punish innocent mistakes or negligent misunderstandings.
It should be noted that several legislators fought hard to give the OML more teeth, most notably Rep. Antonio F.D. Cabral of New Bedford. It should also be noted that the new enforcement and training powers vested in the AG should result in enhanced compliance with the law, particularly with regard to "innocent" violations.
But as long as public officials face no personal consequences for violating the law, there will always be some who will choose secrecy over public acts, knowing that nothing will happen to them personally. In this case, the Muzzle is deserved, even if there are no teeth to protect against.
Under the new open meeting law, Dan Kennedy writes, "a public body can no longer be found to have broken the open-meeting law unless there's a ruling that its behavior was 'intentional.'"
That is not correct. No finding of intent is required for the AG to conclude that the law was violated. The "intent" requirement applies to the remedy the AG may impose if she finds a violation.
The law provides various non-monetary remedies the AG is authorized to impose -- order an open meeting, nullify a meeting vote, require attendance at training, and others. It has only one monetary penalty -- a $1,000 fine for an "intentional" violation.
This fine was in the old law, but without the "intentional" requirement. By adding the necessity to prove "intent" under the new law, the legislature made it much harder to impose a fine for an OML violation.
On top of that, the Massachusetts Newspaper Publishers Association, of which I am executive director, has long argued that the $1,000 fine is an inadequate sanction, because it is imposed on the board, as a whole, rather than on any specific individual who violates the law. The net effect of this is that a public official can violate the law, but the taxpayers have to pay the penalty, should one be imposed.
The majority of other states handle this differently. They provide for monetary sanctions directed against the individual members of a board who violate the law. Some states even make it a crime to violate the open meeting law. In the context of individual penalties, the "intent" requirement makes sense, because no one wants to punish innocent mistakes or negligent misunderstandings.
It should be noted that several legislators fought hard to give the OML more teeth, most notably Rep. Antonio F.D. Cabral of New Bedford. It should also be noted that the new enforcement and training powers vested in the AG should result in enhanced compliance with the law, particularly with regard to "innocent" violations.
But as long as public officials face no personal consequences for violating the law, there will always be some who will choose secrecy over public acts, knowing that nothing will happen to them personally. In this case, the Muzzle is deserved, even if there are no teeth to protect against.
Muzzle Awards Honor Enemies of Free Speech
A sidebar, written by civil rights lawyer Harvey Silverglate, doles out Muzzle awards for censorship on college campuses.
Among those "honored" with Muzzles this year are Boston Police Commissioner Ed Davis, for clamping down on citizens who try to videotape police; 1st U.S. Circuit Court of Appeals Judge Bruce Selya, for his opinion barring webcam streaming of the Joel Tenenbaum file-sharing case; and the Massachusetts legislature, for rewriting the state's open meeting law without giving it the teeth it's long needed.
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