Full Text of Ruling in South Hadley Open Meeting Case

As a follow-up to my post earlier today, Judge Calls Open Meeting Violation 'Shameful,' here is the full text of the ruling: Gelinas v. Town of South Hadley.

Judge Calls Open Meeting Violation 'Shameful''

A Massachusetts judge has ruled that the South Hadley School Committee committed a "shameful" violation of the state open meeting law, fining it $5,000 and invalidating its vote to increase the salary of the town's school superintendent.

Full details of the ruling are available in a report from The Republican.

In fact, the judge found that the School Committee unlawfully met in executive session five times, first to discuss extending the contract of the superintendent, Gus A. Sayer, and then to discuss increasing his salary. Although Judge C. Brian McDonald found that both closed sessions violated the law, he concluded that he could remedy only the pay raise violation because the complaint about the earlier violation was not filed within the time required by law.

This ruling is notable for several reasons:

• First, in justifying its closed session, the School Committee cited an OML exception that allows closed meetings to discuss "contract negotiations." This has become one of those "kitchen sink" exceptions that boards regularly cite, even when no actual negotiations are involved. (I noted this recently with regard to the UMass trustees.) Here, the judge gave this argument short shrift: "These broad references to a permissible exception to the open meeting rule not only were not precise, they were deliberately misleading. Indeed, I find that the announcements were the result of willful decisions to provide false purposes so as to mislead the public."
• Second, the penalty underscores a fundamental flaw in the OML. Although the judge imposed a $5,000 fine, guess who pays that? The taxpayers. The board members who violated the law get off scot-free. For years, the Massachusetts Newspaper Publishers Association has been pushing for teeth in the OML -- specifically for the ability for courts to impose fines on individual members of boards and commissions who intentionally violate the law (not those who innocently violate it). The OML is one of the only laws on the books in Massachusetts that someone can violate without fear of any direct consequence. 
• Third, groups that oppose adding penalties to the OML (most notably the Mass. Municipal Association) argue that public officials virtually never violate the law intentionally. When they do violate the law, these groups contend, it is an innocent violation resulting from misunderstanding of the law's complexities. Yet here, again, is another in a long series of cases that demonstrates that many of the most egregious violations of the OML are committed with full understanding of the law. Officials who skirt the law to meet in closed meetings do so precisely because they want to hide something they know will be unpopular. That is what happened here, with the judge noting that the School Committee was already "at the center of a firestorm of adverse publicity" following the suicide of 15-year-old bullying victim Phoebe Prince. 

One other note: According to the story in The Republican, the judge ordered South Hadley to reimburse the plaintiffs in this case for their legal costs. That is significant because, in a 1988 case, the Supreme Judicial Court ruled that a court cannot award legal costs in an OML case. That was decided under the former OML that was replaced by a new law last year. The new law is silent on attorneys' fees. I have not seen the actual ruling in this case, but perhaps the judge has found grounds under the new law to award fees.

The PlayStation Security Breach and the Law

Sony Corporation suffered a huge security breach in its video game online network with names, addresses and credit card numbers of 100 million PlayStation and PC game network users stolen by hackers. This week on the legal-affairs podcast Lawyer2Lawyer, we discuss the legal obligations of companies to protect consumer data and the rights of consumers when that data is compromised. Helping us do that are two guests:

• Justin Brookman, director of the Center for Democracy & Technology’s Project on Consumer Privacy in Washington, D.C.
• John H. Lacey, attorney with the McCormack Firm in Boston and author of Massachusetts Data Privacy Law Blog.

Listen to or download this week's program at the Legal Talk Network.

SJC: Civil Commitment Hearings Open to Public

The public has a presumptive right to attend judicial proceedings in Massachusetts that are held to determine whether someone should be involuntarily committed to a mental health facility, the Supreme Judicial Court has ruled.

"Public access to the commitment proceedings underscores the seriousness of a potential deprivation of liberty and combats tendencies toward informality that may threaten an individual's due process rights," Justice Judith Cowin wrote for the court in the case, Kirk v. Commonwealth, which was decided March 7. (Apologies for my delay in posting about it.)

However, the public's right to attend is not absolute, the SJC said. Civil commitment hearings may be closed to the public if four conditions are met:

1. The party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced.
2. The closure must be no broader than necessary to protect that interest.
3. The trial court must consider reasonable alternatives to closing the proceeding.
4. It must make findings adequate to support the closure.

The case before the SJC involved Helen Kirk, a woman who in 2007 was found not guilty by reason of insanity in the death of her 3-year-old son. At issue in the civil commitment hearing was whether she was now well enough to be released from a state hospital to a residential facility.

Chazy Dowaliby, editor of The Patriot Ledger, has more details about the case at the New England First Amendment Center.

Open Meeting Advisory Commission to Meet

The Open Meeting Law Advisory Commission will meet on Thursday, May 12, 10:30 a.m., at 100 Cambridge St., 2nd Floor, Conference Room D, Boston. The Notice of Meeting lists the topics that are on the agenda.

The meeting is open to the public. (I sit on this committee as the representative of the Massachusetts Newspaper Publishers Association.)

Mug Shots Not Public Records, State Rules

The Massachusetts Secretary of State's Office has done an about face and decided that police mug shots do not have to be provided to the public under the state's public records law. Last year, the office ruled that mug shots are public records in most cases.

The most recent ruling came in an appeal filed by the Daily Hampshire Gazette in Northampton. The newspaper had asked the Northampton Police Department to release the arrest booking photo of W. Michael Ryan, a former Northampton District Court judge who was arrested and then acquitted of charges of assault and battery on a police officer and disorderly conduct.

The Secretary of State's Office ruled that the police department has discretion to withhold the mug shots under the Criminal Offender Records Information Law.

A Busy Week for Meeting Law Violations

A busy week for violations of the Open Meeting Law:

• The MetroWest Daily News: AG says Wayland selectmen violated Open Meeting Law again.
• Melrose Patch: State: Melrose School Committee's Insufficient Agenda Detail Violated Open Meeting Law, Contract Negotations Did Not.
• The Salem News: Hamilton-Wenham School Committee admits to violating Open Meeting Law.
• The MetroWest Daily News: Ashland Committee Discloses Open Meeting Violation.

R.I.P. Alan Cote, Supervisor of Public Records

Alan Cote, the lawyer who ran the public records division within the Massachusetts Secretary of State's Office, has died, according to the State House News Service. It quotes a statement issued this afternoon by Secretary of State William Galvin:

“It is with great regret that I announce the untimely death of First Deputy Secretary of the Commonwealth Alan N. Cote today after a courageous struggle with cancer. As First Deputy for the past six years, Alan played a key role in the management of the Office of Secretary. As Director and Supervisor of Public Records for almost a decade, Alan combined a zealous advocacy for the principle of open government records with a judicious application of the law as demonstrated in his rulings on appeals. He will be sorely missed.”

Galvin had it right when he described Alan as a zealous advocate of open government. He made many courageous rulings in favor of the public. Even so, he was sometimes frustrated by a state law that gave his office virtually no power to enforce those rulings. Even now, bills are pending in the legislature to enhance the authority of the supervisor of records. We can hope these reforms are enacted. Unfortunately, if they are, Alan won't be here to see it.

Governor Ruled Exempt from Public Records Law

Massachusetts governors since Mitt Romney have insisted that they are exempt from the state's public records law. Now, the office that is charged with enforcement of that law, the office of Secretary of State William F. Galvin, has issued a ruling agreeing with them.

Colman Herman has the details in CommonWealth Magazine.

As Herman points out, the law already exempts the legislature and the judicial branch. Add the governor and you get a pretty watered-down version of transparency here in the Bay State.

Judge Alex Kozinski is our Guest on Lawyer2Lawyer

Has technology rendered the First Amendment obsolete? Alex Kozinski, chief judge of the 9th U.S. Circuit Court of Appeals, made that case in a recent speech at Golden Gate University School of Law. This week on the legal-affairs podcast Lawyer2Lawyer, Judge Kozinski joins us to discuss his views on technology, bloggers, the First Amendment, constraints on judicial speech, and a lot more.

Listen to the show or download the MP3 from the Legal Talk Network.