Monday, March 28, 2011

News Groups File SJC Amicus Brief to Unseal Inquest Documents in Amy Bishop Case

A coalition of New England media and advocacy organizations, spearheaded by Harvard Law School's Cyberlaw Clinic and the Citizen Media Law Project, has filed an amicus curiae brief to the Massachusetts Supreme Judicial Court seeking to unseal inquest documents in the Amy Bishop case.

After Bishop allegedly shot and killed three of her faculty colleagues at the University of Alabama in 2010, Massachusetts officials opened an inquest into the fatal shooting of her brother in 1986. After the inquest resulted in the indictment of Bishop for first-degree murder, the Boston Globe sought release of the inquest transcript and report. A Superior Court judge refused to unseal the documents. The case is now pending before the SJC.

I am a signatory to the brief on behalf of the Massachusetts Newspaper Publishers Association. A more detailed description of the case and the legal issues it involves is available from the Citizen Media Law Project. A PDF copy of the brief is available for download.

Wednesday, March 16, 2011

How the UMass Trustees Violated the Open Meeting Law

In the wake of Springfield Republican State House reporter Dan Ring's story this weekend on possible Open Meeting Law violations by the UMass Board of Trustees, I have received requests to elaborate on my opinion. As Ring reported, Attorney General Martha Coakley is investigating whether the trustees violated the law when they went into closed sessions to interview the final candidates for university president. My opinion, as I expressed in that article, is that the violation is clear. 

The Open Meeting Law is unequivocal in requiring that the final stages of screening and selecting applicants for government jobs must be conducted in public. I say this not as a matter of interpretation, but relying on the express language of the law. 

With regard to “applicants for employment or appointment,” the law expressly states that only meetings of a preliminary screening committee may be closed, and only then when opening them would “have a detrimental effect in obtaining qualified candidates.” The law defines “preliminary screening” as “the initial stage of screening applicants … for the purpose of providing to the public body a list of those applicants qualified for further consideration or interview.”

Once the preliminary screening -- the initial stage -- is done, the law requires that all other meetings “to consider and interview applicants” must be conducted in public. As the Attorney General's Open Meeting Law Guide states in providing guidance on the preliminary-screening exemption, "This purpose does not apply to any stage in the hiring process after the screening committee or subcommittee votes to recommend a candidate or candidates to its parent body." 

The language of the law could not be more clear or unequivocal. In the case of the UMass trustees, the hiring process had passed well beyond anything that could even remotely be considered "preliminary." This was the final meeting to conduct the final set of interview and make a final hiring decision. By going into a closed-door session to conduct these interviews, the trustees indisputably violated the law. 

Exemptions Cited by the Trustees

There is that old proverb, "The devil can quote scripture for his own ends." Even though the OML is abundantly clear with regard to the hiring process, the trustees justified their closed-door meeting by citing other sections of the law that do not apply to hiring. 

First, they cited the exemption that allows an executive session "to discuss the reputation, character, physical condition or mental health, rather than professional competence, of an individual." 

With regard to hiring, the key words of this exemption are "rather than professional competence." That means that professional competence is not a subject that may be discussed in executive session. When a board is discussing the qualifications of an individual to be hired into a job or to be retained in that job, that is an issue of "professional competence." 

This isn't just my opinion. This is the opinion of both the state Supreme Judicial Court and the AG. The SJC, in its decision last year in District Attorney for the Northern District v. School Committee of Wayland, said, "[A] school committee's deliberation of the superintendent's professional competence must take place in an open session." Likewise, the AG's Guide expressly says that the reputation and character exemption does not apply when "considering applicants for a position, or discussing the qualifications of an individual." 

The next exemption cited by the trustees is that which allows boards to meet in executive session "to conduct strategy sessions in preparation for negotiations with nonunion personnel." 

In the Wayland case cited above, the school committee likewise tried to invoke this very exemption to justify its closed-door meeting to conduct a performance evaluation of the superintendent. The school committee's rationale was that the evaluation would provide information that would be factored into the superintendent's eventual contract and so the exemption applied.

The SJC didn't buy that argument. The purpose of the meeting was to discuss the superintendent's evaluation, the court noted, and there was no discussion at the meeting of contract terms or proposals. 

In the UMass case, the argument makes even less sense and is even more clearly a smoke screen. These closed-door sessions were held before they made their final choice of a president. They had no contract to discuss until after they had made a final decision regarding a candidate. Only after they made their final decision was there someone to negotiate with. As the Wayland case made clear, a board cannot invoke the contract negotiation exception merely because a negotiation will be required at some future date.

The final exemption the trustees cite -- let's call it their "kitchen sink exemption" --  is one which allows closed meetings "to comply with, or act under the authority of, any general or special law or federal grant-in-aid requirements." This is a catch-all exemption that means, simply put, that if there is a law out there somewhere on the books that requires the meeting to be private, so be it. 

If there was such a law, no one seems to have mentioned it. Nothing I have read indicates that the trustees identified a specific law that would have required them to meet in private. They did not identify any such law before going into executive session and they have not identified any such law since. 

In the Wayland case, the SJC emphasized that government bodies should not use the OML's exceptions “to circumvent the requirements of the open meeting law.” The overarching presumption of the law is this: "All meetings of a public body shall be open to the public." Exceptions are just that -- exceptions to what should be the prevailing rule of openness. 

As it applies to hiring, the OML is clear and unequivocal in its requirement that the final stages of screening and selecting among applicants for a position are to be conducted in public. The more important the position, the more important it is that the public be kept informed. The exceptions cited by the trustees do not apply to hiring and seem to be offered as a smokescreen to obscure an illegal meeting. 

Sunday, March 13, 2011

Sunshine Week Stories from Mass. Newspapers

Today marks the start of Sunshine Week, a national initiative to promote open government. Here are related stories I came across this weekend in Massachusetts newspapers:

Let me know of other stories I've missed.

Did UMass Trustees Violate Open Meeting Law?

State House reporter Dan Ring has a story today in The Republican reporting that Attorney General Martha Coakley will open an investigation into whether the trustees of the University of Massachusetts violated the state open meeting law when they met in closed session to interview finalists for the job of university president.

Dan interviewed me for this story and, as he reports, my opinion is that the violation is clear. When a government body is filling a job opening, the law allows closed-door meetings only at the preliminary stages of the process. Once the final pool of candidates is identified, the rest of the process should take place in the open.

That only makes sense. The public has a right to know about the candidates for a public job. That is especially the case for a public job as important as president of the state university.

To me, this story is yet another illustration of why the state's open meeting law needs more teeth and fewer exceptions. Here, the UMass trustees ignored both the letter and the spirit of the law. To justify their closed-door meetings, they relied on two exceptions in the law that clearly did not pertain to this situation.

It remains to be seen what the AG's office will conclude. To me, the violation seems indisputable.

Thursday, March 10, 2011

AG Begins Posting Rulings under Open Meeting Law

Ever since Attorney General Martha Coakley's office took over exclusive responsibility for enforcement of the open meeting law last July, a goal of the office has been to begin posting its rulings online. Beginning today, that goal is now a reality.

This afternoon, the AG's Division of Open Government posted all the determination letters it has issued to date under the new law -- 29 in total. These are the letters that the AG issues after investigating a complaint and deciding whether there has been a violation of the open meeting law.

"The determination letters are intended to be a resource and provide helpful guidance on the requirements of the Open Meeting Law," the AG's website says. "We intend to periodically update this section with newly issued determination letters, so please check back frequently."

These determination letters are part of a broader section of the AG's website devoted to the open meeting law. It includes the text of the law and regulations, a guide to the law, and a variety of materials, forms and resources related to the law.

Tuesday, March 08, 2011

Reporter's Privilege Protects Globe Reporter from Testifying in Street Performer's Lawsuit

A federal judge in Boston today ruled that Boston Globe reporter Donovan Slack will not be forced to give testimony in a civil rights lawsuit filed by a former Faneuil Hall street performer against the city of Boston. U.S. District Judge Beryl A. Howell ruled that a qualified reporters' privilege under the First Amendment protected Slack from being forced to testify.

"Courts have recognized a qualified privilege under the First Amendment for reporters to protect them from compelled disclosure of information, which they have obtained as part of their news gathering role," Judge Howell wrote. "The reporter's privilege stems from recognition of the 'preferred position of the First Amendment' in our society and 'the importance of a vigorous press.'"

Slack wrote a story for the Globe in 2008 about restrictions imposed by the city of Boston on street performers at Faneuil Hall. Bruce Peck sought to compel Slack to testify in his lawsuit claiming that the city's restrictions violated his First Amendment rights of free speech. When Peck subpoenaed Slack, she asked the federal court to quash the subpoena.

While the reporter's privilege is often raised in cases involving confidential information, Judge Howell wrote that it is also recognized in cases -- such as this one -- involving nonconfidential information. "If a reporter's privilege did not apply to nonconfidential information, it would result 'in a wholesale exposure of press files to litigant scrutiny [and] would burden the press with heavy costs of subpoena compliance.'"

The First Circuit (which includes Boston) applies a two-prong balancing test to determine whether the reporter's privilege applies, Judge Howell said. First, the court must evaluate the litigant's need for the information, considering not merely whether the information is relevant, but whether it is important to the litigant's case. Second, the court must consider whether the party seeking the information has exhausted all reasonably available alternative sources.

Peck, the plaintiff in this case, sought Slack's testimony in order to confirm the limited size of the area the city of Boston allowed for street performers. This piece of information was critical to the court's analysis of Peck's First Amendment claims, Judge Howell ruled, and thereby weighed in favor of compelling Slack's testimony.

However, turning to the second prong of the balancing test, Judge Howell concluded that Peck had failed to demonstrate that no alternate sources for the information existed. Peck offered only "general descriptions" of his efforts to obtain the information elsewhere, "and these descriptions are insufficient to sustain his burden of showing that alternative sources are unavailable."

"Without a proper showing that alternative sources do not exist, the Court will not override the reporter’s privilege and force Ms. Slack to testify in connection with the plaintiff’s case," Judge Howell concluded.

Judge Howell's 14-page opinion contains a thoughtful discussion of the reporter's privilege law and is well worth taking the time to read.

[Hat tip to Suits & Sentences for alerting me to the case.]