Should the Open Meeting Law allow Teleconferencing? AG Seeks Comments

Should members of government boards be allowed to attend meetings without being physically present, using teleconferencing, Web conferencing or some similar technology?

The Attorney General's Division of Open Government is about to take up that question. Today, it issued a request for public comment on remote participation in public meetings. The new open meeting law that took effect July 1 does not directly authorize remote participation, but it does give the AG the discretion to allow remote participation if she so chooses.

The notice issued today requests public comment on whether to allow remote participation. It encourages anyone who submits comments to address these questions:

1. Should the Attorney General authorize remote participation in meetings by members of public bodies?
2. If authorized, what, if any, technology should be required? (i.e., conference call ability; video conferencing)
3. If authorized, what, if any, provisions should be adopted to address technical difficulties that may arise during the course of remote participation in a meeting?
4. If authorized, should limits be placed on the frequency with which members of public bodies may participate remotely in meetings?
5. If authorized, should limits be placed on the reasons for which a member of a public body may be allowed to participate remotely (i.e. only allow remote participation because of distance, disability or other medical reason, emergency, etc.)?
6. Currently, roll-call votes are only required in order to go into executive sessions and to make decisions during executive sessions. If authorized, should roll-call votes be required for all votes taken when one or more members are participating remotely?
7. If authorized, should members participating remotely be required to have access to all documents and other materials used by the public body during a meeting? How should documents be made available?
8. If authorized, what, if any, requirements should be in place to maintain confidentiality during executive session?

Comments must be submitted by Oct. 1. They should be sent to: Britte McBride, Assistant Attorney General, Division of Open Government, Office of the Attorney General, One Ashburton Place, 20th Floor, Boston, MA 02108, or by e-mail to openmeeting@state.ma.us.

Video is Smoking Gun in Open Meeting Cases

Journalists and citizens seeking to enforce open meeting laws have a new weapon at their disposal: video. In two recent cases in Massachusetts, open meeting law violations caught on tape forced the violators to admit their mistakes.

In a post here in July, I wrote about the reporter for The Patriot Ledger who recorded the Weymouth Housing Authority board as it threatened to forcibly evict citizens who protested an apparent open meeting violation. It appeared that the board met in secret to select a new executive director.

Thanks in part to that videotape as well as to a series of reports by The Patriot Ledger, the Weymouth Housing Authority later rescinded its pick of a new executive director. The board's chairman explained that the board wanted "to clear up any perception of backroom dealing or nefarious activity."

Now comes a similar incident involving the Board of Selectmen of the town of Wayland. Just minutes before the start of their July 8 meeting, the selectmen huddled to discuss appointments to the town's historic and conservation commissions -- appointments they were scheduled to discuss on the record once their formal meeting got underway.

From their pre-meeting discussion, it appears they are reviewing decisions they'd already made about who would get the appointments -- decisions that are required by law to be discussed in public. Later, in their 0n-the-record meeting, they in fact make the appointments consistent with the pre-meeting discusssion.

Unfortunately for them, the town's public access cable TV station, WayCAM, had already started recording. The selectmen can be clearly heard on the recording discussing the candidates.

Remarkably, when a citizen wrote to the selectmen to complain about the violation, the chairman of the board derided the complaint as "borderline harassment." At the selectmen's meeting on July 26, the board discusses the complaint and dismisses it as unfounded. "It's borderline harassment," the chairman says. "I'm getting a little tired of it."

By its next meeting on Aug. 16, the board had become much more contrite, thanks to having viewed the video. At the Aug. 16 meeting, the board admitted its members had acted inappropriately in the July 8 meeting. In a statement, the board said it was "clear that the four [selectmen] were mistaken in referring to some of the candidates who were being considered for appointment that evening."

Below is a short clip of the selectmen's off-the-record discussion. For a longer video showing part of the July 8 and July 26 meetings, click here. To see the video of their Aug. 16 meeting, click here. See also the report from Wicked Local Wayland: Wayland selectmen admit to impropriety.

Wayland BoS 070810 Pre-Meeting from WaylandVotersNetwork on Vimeo.

Podcast: F. Lee Bailey on the Clemens Indictment

Legendary criminal defense lawyer F. Lee Bailey and New York Times reporter Michael S. Schmidt join us to discuss the indictment of Roger Clemens on this week's installment of the legal-affairs podcast Lawyer2Lawyer.

You can listen to the program in your browser or download the MP3 file from the Legal Talk Network.

Never miss an episode of Lawyer2Lawyer by subscribing to the show’s RSS feed or by subscribing on iTunes.

Podcast: Justice Denied in the Markoff Case?

Three great guests join us on this week's Lawyer2Lawyer podcast to discuss the prison suicide of accused Craigslist killer Philip Markoff and what it means for the case, the victims' families and the criminal justice system.

Our guests are:

• Douglas Berman, professor of law at Moritz College of Law at Ohio State University and author of the blog Sentencing Law and Policy.
  
• Elie Mystal, an editor of Above the Law.
• Leslie Walker, executive director of Prisoners’ Legal Services in Massachusetts.

You can stream the show or download the MP3 file from the Legal Talk Network.

Never miss an episode of Lawyer2Lawyer by subscribing to the show’s RSS feed or by subscribing on iTunes.

Rep. Cabral Op-ed on Open Meeting Law

I urge you to read Fix weak Open Meeting Law enforcement, an op-ed on SouthCoastToday.com by state Rep. Antonio F.D. Cabral, D-New Bedford. As he points out, the new open meeting law has many strengths, but also a major weakness -- the lack of an effective enforcement mechanism.

Rep. Cabral's opinion is underscored by the fact that he was the primary architect over a number of years of efforts to reform the law. As House chair of the Joint Committee on State Administration and Regulatory Oversight in prior sessions of the legislature, he pushed to give the law more teeth.

Here is part of what he says in the op-ed:

I proposed giving courts the ability to impose larger fines and to impose fines on board members individually. Fines picked up by taxpayers do little to change public officials' behavior. Similarly, I wanted to strengthen private enforcement by allowing courts to force public bodies that violate the law to cover the attorney's fees of those who successfully challenge them.

The new law not only fails to include these improvements, but made it significantly harder for prosecutors to fine rule breakers. For the first time, prosecutors now need to prove not only that a board violated the law, but that the violation was "intentional," a much higher standard and very difficult to prove when speaking about a group of people rather than a single individual.

Read the full piece at SouthCoastToday.

AG Holds First Hearing on Open Meeting Regs

Attorney General Martha Coakley's office today held the first of four scheduled public hearings on emergency regulations to implement the new Massachusetts open meeting law that took effect July 1. Turnout was low. My notes show just six people testified. The scheduled three-hour hearing was over after one hour.

Among those who testified were Rosario C. Malone, city clerk of Waltham; Theodora Eaton, town clerk of Needham and president of the Massachusetts Town Clerks' Association; Michael Yunits, Holbrook town administrator; Allison Amanis, acting executive director of the Commonwealth Covenant Fund; Kevin McCrea, former Boston mayoral candidate and advocate for open government; and Marty Rosenthal, a lawyer and co-chair of Brookline PAX.

Although the hearing's focus was the AG's regulations, most of the testimony focused on dissatisfaction with the statute. Obviously, the AG doesn't write the law, it simply carries it out. Of course, going forward, Coakley could be influential in urging the legislature to make "corrections" in the law.

I won't try to recap all the testimony. but the major points addressed were these:

• Posting requirement. Clerks remain concerned with the law's requirement that local government bodies post meeting notices in a way that they can be seen by the public 24 hours a day. They call this an "unfunded mandate" in that it may require new technology and more staff time. Oddly, two of the people who testified criticized the regulations for prohibiting the posting of notices on municipal Web sites. In fact, the regulations expressly allow posting on the Web, provided the notice is also posted in a municipal building that is accessible 24/7, such as a police or fire station.
• Remote participation. The new law authorizes the AG, "by regulation or letter ruling," to "authorize remote participation by members of a public body not present at the meeting location." The AG's regs are silent on this issue. The AG's Open Meeting Law Guide says the AG is considering this issue but that, for now, remote participation is not allowed. Several of the people who testified urged the AG to address and clarify this issue. 
• Agenda. The new open meeting law requires meeting notices to include agendas. This was not a requirement of the former law. The town officials who testified believe this could be counterproductive.
• Records retention. Any documents used during a meeting subject to the law become public records and must be retained as such. Several town officials objected that this requirement is onerous. This was surprising, given that the former law had pretty much the same requirement. It makes me wonder whether they'd been ignoring this requirement for years. 
• Filing of complaints. The AG's regulations say that complaints alleging open meeting violations should, for local government bodies, be filed with the municipal clerk. Eaton, the president of the Town Clerks' Association, contended that this is not in accord with the statute, which says the initial complaint shall be filed "with the public body."

McCrea's testimony raised several questions and concerns about how diligent the AG will be in enforcing the law and about carry-over of complaints under the old law that remain unresolved. He echoed concerns I've raised frequently on this blog that the law lacks teeth and needs to be toughened. 

Rosenthal suggested that the regs should make better use of technology. In particular, he said Brookline has a listserv to distribute meeting notices and agendas to interested citizens and suggested the AG might consider something similar for other government bodies. 

The next hearing is Monday in Worcester. 

After Four Months, AG Replaces Open Gov Director

Just four months after she named Robert Nasdor as director of the new Division of Open Government, Attorney General Martha Coakley has named someone new to the post, Britte McBride, formerly an assistant AG in the Attorney General's Policy and Government Division.

The change in command comes one month after the AG took over all responsibility for enforcement of the open meeting law on both the state and local levels.

Tomorrow, the AG's office begins a series of four public hearings on regulations to implement her office's new responsibilities.

I spoke briefly today to McBride, who said she was given the director's position due to her background in policy and government, experience that will be highly relevant to the division's work over the coming months.