Bills to Strengthen Open Meeting Law Get Mothballed

Bills that would have put sharper teeth in the Massachusetts Open Meeting Law and that would have extended the law to the legislature have been effectively mothballed for this legislative session. The legislature's Joint Committee on State Administration and Regulatory Oversight referred out the bills with a study order, which means nothing else is likely to happen with them during the current legislative session.

One of the bills that the committee referred to study is House Bill 1734, filed by Rep. Antonio F.D. Cabral (D-New Bedford). It would have allowed courts to impose civil penalties on public officials who intentionally violate the OML and would have authorized the Attorney General's Office to impose public reprimands on officials who intentionally violate the law. Under the current law, a public official who violates the law faces no individual consequences of any kind.

Rep. Cabral's bill would also have authorized recovery of attorneys' fees and costs by citizens who bring legal actions to enforce the OML. Currently, Massachusetts is one of fewer than 10 states that do not allow citizens to recover attorneys' fees.

The Joint Committee also mothballed four different bills, all of which would have included the legislature under the OML. Currently, the legislature is exempt from open-meeting requirements. The four bills are House Bill 848, House Bill 2594, House Bill 3037 and Senate Bill 1625.

AG Posts Series of Open Meeting Law Training Videos

Kudos to Attorney General Martha Coakley's office for creating and posting a series of free training videos in the Massachusetts Open Meeting Law. The videos are available on the AG's website and also on YouTube. They are useful for public officials, members of the press, members of the public and anyone wanting a better understanding of the law.

The series consists of six separate videos. The entire series takes about an hour to watch. The six in the series are:

• Video #1: Introduction and Open Meeting Law Definitions.
• Video #2: Meeting Notices.
• Video #3: Accessibility of Meetings; Remote Participation; and Public Participation in Meetings.
• Video #4: Executive Sessions.
• Video #5: Meeting Minutes and Records.
• Video #6: Public Body Member Certification; Open Meeting Law Complaint Process; Resources and Contact Info. 

Along with the videos, the AG's office has provided the full transcript of the series for download.

AG OKs Remote Participation in Public Meetings

Members of government boards and commissions in Massachusetts will now be able to participate in meetings remotely, using audio or video conferencing, under open-meeting regulations approved today by Attorney General Martha Coakley.

The regulations, 940 CMR 29.10, were announced today and take effect tomorrow, Nov. 11.

Before any committee member can take advantage of the new regulations, the procedure must be adopted by the applicable government body. For local cities and towns, the mayor or board of selectmen must OK remote participation before any local board can use it. State boards can adopt the procedure by majority vote.

The regulations set out three requirements for remote participation:

1. Members who participate remotely and all persons present at the meeting location must be clearly audible to each other.
2. A quorum of the body, including the chair or, in the chair’s absence, the person authorized to chair the meeting, must be physically present at the meeting location.
3. Members who participate remotely may vote and are not considered absent.

Under the regulations, remote participation will be allowed only when a member's physical presence at the meeting is "unreasonably difficult" due to one of five reasons:

• Personal illness.
• Personal disability.
• Emergency.
• Military service.
• Geographic distance.

Once remote participation is approved for a meeting, then the regulations require that the following procedures be followed:

• The member who wishes to participate remotely must, as soon as reasonably possible prior to a meeting, notify the chair of his or her desire to do so and the reason.
• At the start of the meeting, the chair must announce the name of any member who is participating remotely and the reason. The information is also to be recorded in the meeting minutes.
• All votes taken during the meeting must be by roll call.
• The remote member may participate in an executive session, but must state at the start of any such session that no other person is present or able to hear the discussion at the remote location (unless the board votes to approve the person's presence).
• When feasible, the chair should distribute to remote participants, in advance of the meeting, copies of any documents or exhibits likely to be used during the meeting.

Changes to the open meeting law that took effect on July 1, 2010, gave the AG exclusive authority for the law's enforcement. Those changes gave the AG the discretion to authorize remote participation, provided absent members and all persons present at the meeting are clearly audible to each other and that a quorum is present at the meeting location.

AG Launches Searchable Site for Open Meeting Rulings

After taking over enforcement of the Massachusetts Open Meeting Law last year, Attorney General Martha Coakley launched a portion of her website devoted to the new law, www.mass.gov/ago/openmeetings, and later began posting the determinations issued by her office in response to complaints under the law.

Now that site has taken a major step forward in usability by adding an OML Determination Lookup feature. Before, you could only browse determinations by name of case. That told you nothing about the issue involved in the case. Now, the site lets you search for key terms or phrases or by actions ordered. You can also search by city or town, county, or public body.

20 Mass. Newspapers Publish Joint Editorial Calling for Stronger Access Laws

Today, 20 daily newspapers in Massachusetts took the unprecedented step of publishing the same editorial, one calling for stronger public records and open meeting laws in Massachusetts.

Links to all the editorials are compiled at the Massachusetts Newspaper Publishers Association website.

Hearing Tomorrow on Proposed Regs to Allow Remote Participation in Public Meetings

The Attorney General will hold a public hearing tomorrow, Sept. 6, on proposed regulations that would allow members of public boards and commissions to participate in meetings remotely under certain circumstances.

The proposed regs would allow a member to participate remotely only for:

• Personal illness.
• Personal disability.
• Emergency.
• Military service.
• Geographic distance.

The regs would require that a quorum be physically present at the meeting location and that remote participants be clearly audible to everyone in attendance at the meeting location.

The public hearing on the proposed regs is 4 to 6 p.m. and will be held at One Ashburton Place, 21st Floor, Boston. You can obtain a PDF of the proposed regulations here: Request for Comment on Proposed Regulations.

AG Rules UMass Trustees Committed 'Wide-Ranging and Serious' Violations of Open Meeting Law

In March, I wrote a post here explaining why I believed the UMass Board of Trustees violated the Open Meeting Law when they went into closed sessions to interview the final candidates for the university president. That post was a follow-up to an earlier post in which State House reporter Dan Ring reported in The Republican that Attorney General Martha Coakley was opening an Open Meeting Law investigation into the trustees' actions.

Today, Ring reports that the AG has issued her findings in the investigation -- and they are harsh. In a 17-page letter, Assistant Attorney General Jonathan Sclarsic writes that the trustees violated the law "throughout the presidential search process" and committee violations that "were wide-ranging and serious."

This is an important ruling from the AG. It underscores a number of the law's requirements as they apply both to executive sessions and to the process of screening and hiring candidates for public jobs. I hope every public official in the state reads this opinion carefully.

At the same time, I wish the AG had imposed a penalty that fit the crime. The "harshest" of the various remedies the AG ordered was for the trustees to undergo training in the Open Meeting Law. This is important, but it amounts to a slap on the wrist now that the deed is done.

I would have preferred to see the AG invalidate the appointment and order the trustees to go through the process in compliance with the law. That would have sent a message they would not soon forget.

Still, the opinion is a strong affirmation of the importance of the Open Meeting Law.

For a PDF of the AG's letter, click here. 

AG Releases Figures on First Year of Open Meeting Law

A year ago, the new Massachusetts open meeting law took effect, for the first time vesting full enforcement power in the attorney general, rather than spreading enforcement among local district attorneys as the prior law had done.

Today, Attorney General Martha Coakley issued a report on the first year of the law's enforcement under her office. (As of this writing, the report is not available on the AG's website but I'm told it should be posted within a day or so.) Here are some of the accomplishments she lists in the report:

• Respond to more than 2,000 telephone and email inquiries from members of public bodies, municipal counsel and the public.
• Investigate 116 complaints.
• Resolve 51 cases, including issuing 34 determinations and informally resolving 17 complaints. 
• Conduct or participate in 47 trainings, including seven regional educational forums on the OML.
• Develop a comprehensive OML website.
• Draft proposed regulations authorizing remote participation in public meetings in certain circumstances.

Ironically, the report fails to mention some of her office's other achievements under the new law, such as drafting interim and permanent regulations to implement the new law and drafting an Open Meeting Law Guide.

The tone of the report is rosy, but it has not been all good news for the AG's OML division. For one, in just over a year of operation, the division has seen two directors come and go. The division's first director, Robert Nasdor, left after just four months. His successor, Britte McBride, did a great job of picking up the ball and running with it, but she also recently left for a new post within the AG's office. The current and third director is Amy Nable.

Still, my opinion is that the AG's office deserves credit for starting from zero and building up to operating speed. The new law gave Coakley major new responsibilities but no extra staff and no extra money to carry them out. The law had – and still has – many grey areas that the AG needed to address. The AG did a good job of launching this new division given what she had to work with. And several of the division's rulings so far show that the AG takes the law seriously and means business.

I've heard complaints that some counties were better off when the DA was enforcing the law. I think time will demonstrate that this change in enforcement made sense. Of course, over the long run, that will depend on whether AGs who succeed Coakley continue to take the law seriously and don’t push the OML division into a back closet.

Hypocrisy about Transparency on Beacon Hill

Even with this week's conviction of former Massachusetts House Speaker Salvatore DiMasi on corruption charges, the response of legislative leaders on Beacon Hill appears to be little more than, "Hey, there's nothing more we can do." As an AP report by Steve LeBlanc says today, there have been few calls for more ethics changes on Beacon Hill.

One reason for this is that the legislature passed a sweeping ethics reform bill just two years ago. And as part of that sweeping reform bill, it also passed a sweeping overhaul of the state's Open Meeting Law, an overhaul supposedly designed to beef up transparency.

But a funny thing about that open meeting law: The legislature exempted itself. Although boards and commissions in the executive branch of state government and in local cities and towns are required to conduct most of their business in public, the legislature has been unwilling to subject itself to the same requirement.

As a matter of fact, the legislature has also exempted itself from the public records law.

Together, the open meeting law and the public records law are the two primary laws designed to ensure transparency in government.

And the legislature has exempted itself from both. But then it says there's nothing more it can do to combat corruption. Hypocrisy.

In the last session of the legislature, bills were filed that would have removed the legislature's exemption from the open meeting law. The bills went nowhere.

Now, in the current session, legislators have another chance. Several bills have been filed that would put the legislature under the open meeting law. They are:

• Senate Bill 1625, sponsored by Sen. Bruce Tarr.
• House Bill 848, sponsored by Rep. Thomas M. Stanley.
• House Bill 2594, sponsored by Rep. Marc T. Lombardo.
• House Bill 3037, sponsored by Rep. Steven L. Levy.

If the legislature is truly committed to open and honest government, it should put its money where its mouth is, so to speak. The legislature should subject itself to the same transparency laws it requires other government officials to abide by. 

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.

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.)

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.

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. 

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:

• The Republican: Attorney General Martha Coakley Will Review Whether University of Massachusetts Trustees Complied with Open Meeting Law When Selecting New President.
• Worcester Telegram & Gazette: Switch is a Work in Progress; AG Now Handling Open Meeting Law Enforcement.
• AP via Boston.com: Mass. Lawmakers Still Exempt from Open Meeting Law.
• GateHouse News Service: Mass. Journalists, Citizens Face a Hodgepodge of Local Open Records Practices.
• GateHouse News Service: Commentary: It's Time for Massachusetts to Pursue Greater Online Access to Public Information.
• Patriot Ledger: Dozens of Bills Pending to Increase Access to Public Meetings, Documents.
• New England First Amendment Center: Mass. Writer Asks a Question, Gets a Bill.

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.

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.

AG to Hold Regional Trainings in Open Meeting Law

The Division of Open Government within the office of Attorney General Martha Coakley has scheduled a series of seven regional training sessions in the state's new open meeting law, which took effect last July. The training sessions are open to any member of the public.

Here is the schedule:

March 2, 2011 - 7PM-9PM
Place: Brookline High School
Address: 115 Greenough Street, Brookline, MA

March 23, 2011 - 6PM-8:30PM
Place: Harmony Hall
Address: 1660 Lakeview Avenue, Dracut, MA

April 6, 2011 - 6PM-8:30PM
Place: Bridgewater-Raynham Regional High School
Address: 415 Center Street, Bridgewater, MA

May 11, 2011 - 6PM-8:30PM
Place: Nessacus Middle School
Address: 35 Fox Road, Dalton, MA

May 18, 2011 - 6PM-8:30PM
Place: Barnstable Town Hall
Address: 367 Main Street, Hyannis, MA

May 25, 2011 - 6PM-8:30PM
Place: Northampton High School
Address: 380 Elm Street, Northampton, MA

June 1, 2011 - 6PM-8PM
Place: Worcester Public Library
Address: 3 Salem Square, Worcester, MA

More information is available on the AG's website.

AG Says Wayland Board Broke Open Meeting Law

The Massachusetts attorney general's office has ruled that the Wayland Board of Selectmen violated the state open meeting law in July when it voted in executive session to approve a traffic certification, according to a report by The MetroWest Daily News.

The board properly went into executive session to discuss traffic for a town project because it was subject to litigation, the AG said. However, it should have reconvened in open session to approve the traffic certification.

OML Advisory Commission Meets Nov. 29

The Open Meeting Law Advisory Commission has its next meeting on Monday, Nov. 29, 9:30 a.m., at the Attorney General's Office, One Ashburton Place, 21st Floor.

The AG's office has posted the notice of meeting and agenda.

I sit on this commission as the representative of the Massachusetts Newspaper Publishers Association.