Text of New Open Meeting Law

Contained within Chapter 28 of the Acts of 2009, signed into law by Gov. Patrick July 1, is a major overhaul of the Massachusetts open meeting law. Because the full bill is massive and addresses a range of matters relating to ethics and lobbying, I have extracted the portions relating to open meetings for ease of reference.

This new open meeting law takes effect in a year -- on July 1, 2010. This single law will replace the three different laws we now have for state meetings, county meetings, and municipal meetings. Following is the text of the new law:

OPEN MEETINGS

Section 18: As used in this section and sections 19 to 25, inclusive, the following words shall, unless the context clearly requires otherwise, have the following meanings:

"Deliberation", an oral or written communication through any medium, including electronic mail, between or among a quorum of a public body on any public business within its jurisdiction; provided, however, that “deliberation” shall not include the distribution of a meeting agenda, scheduling information or distribution of other procedural meeting or the distribution of reports or documents that may be discussed at a meeting, provided that no opinion of a member is expressed.

“Emergency”, a sudden, generally unexpected occurrence or set of circumstances demanding immediate action.

“Executive session”, any part of a meeting of a public body closed to the public for deliberation of certain matters.

“Intentional violation”, an act or omission by a public body or a member thereof, in knowing by violating the open meeting law.

“Meeting”, a deliberation by a public body with respect to any matter within the body’s jurisdiction; provided, however, “meeting” shall not include:

(a) an on-site inspection of a project or program, so long as the members do not deliberate;

(b) attendance by a quorum of a public body at a public or private gathering, including a conference or training program or a media, social or other event, so long as the members do not deliberate;

(c) attendance by a quorum of a public body at a meeting of another public body that has complied with the notice requirements of the open meeting law, so long as the visiting members communicate only by open participation in the meeting on those matters under discussion by the host body and do not deliberate;

(d) a meeting of a quasi­-judicial board or commission held for the sole purpose of making a decision required in an adjudicatory proceeding brought before it; or

(e) a session of a town meeting convened under section 10 of chapter 39 which would include the attendance by a quorum of a public body at any such session.

“Minutes”, the written report of a meeting created by a public body required by subsection (a) of section 23 and section 5A of chapter 66.

“Open meeting law”, sections 18 to 25, inclusive.

“Post notice”, to display conspicuously the written announcement of a meeting either in hard copy or electronic format.

“Preliminary screening”, the initial stage of screening applicants conducted by a committee or subcommittee of a public body solely for the purpose of providing to the public body a list of those applicants qualified for further consideration or interview.

“Public body”, a multiple-member board, commission, committee or subcommittee within the executive or legislative branch or within any county, district, city, region or town, however created, elected, appointed or otherwise constituted, established to serve a public purpose; provided, however, that the governing board of a local housing, redevelopment or other similar authority shall be deemed a local public body; provided, further, that the governing board or body of any other authority established by the general court to serve a public purpose in the commonwealth or any part thereof shall be deemed a state public body; provided, further, that “public body” shall not include the general court or the committees or recess commissions thereof, bodies of the judicial branch or bodies appointed by a constitutional officer solely for the purpose of advising a constitutional officer and shall not include the board of bank incorporation or the policyholders protective board; and provided further, that a subcommittee shall include any multiple-member body created to advise or make recommendations to a public body.

“Quorum”, a simple majority of the members of the public body, unless otherwise provided in a general or special law, executive order or other authorizing provision.

Section 19. (a) There shall be in the department of the attorney general a division of open government under the direction of a director of open government. The attorney general shall designate an assistant attorney general as the director of the open government division. The director may appoint and remove, subject to the approval of the attorney general, such expert, clerical and other assistants as the work of the division may require. The division shall perform the duties imposed upon the attorney general by the open meeting law, which may include participating, appearing and intervening in any administrative and judicial proceedings pertaining to the enforcement of the open meeting law. For the purpose of such participation, appearance, intervention and training authorized by this chapter the attorney general may expend such funds as may be appropriated therefor.

(b) The attorney general shall create and distribute educational materials and provide training to public bodies in order to foster awareness and compliance with the open meeting law. Open meeting law training may include, but shall not be limited to, instruction in:

(1) the general background of the legal requirements for the open meeting law;

(2) applicability of sections 18 to 25, inclusive, to governmental bodies;

(3) the role of the attorney general in enforcing the open meeting law; and

(4) penalties and other consequences for failure to comply with this chapter.

(c) There shall be an open meeting law advisory commission. The commission shall consist of 5 members, 2 of whom shall be the chairmen of the joint committee on state administration and regulatory oversight; 1 of whom shall be the president of the Massachusetts Municipal Association or his designee; 1 of whom shall be the president of the Massachusetts Newspaper Publishers Association or his designee; and 1 of whom shall be the attorney general or his designee.

The commission shall review issues relative to the open meeting law and shall submit to the attorney general recommendations for changes to the regulations, trainings, and educational initiatives relative to the open meeting law as it deems necessary and appropriate.

(d) The attorney general shall, not later than January 31, file annually with the commission a report providing information on the enforcement of the open meeting law during the preceding calendar year. The report shall include, but not be limited to:

(1) the number of open meeting law complaints received by the attorney general;

(2) the number of hearings convened as the result of open meeting law complaints by the attorney general;

(3) a summary of the determinations of violations made by the attorney general;

(4) a summary of the orders issued as the result of the determination of an open meeting law violation by the attorney general;

(5) an accounting of the fines obtained by the attorney general as the result of open meeting law enforcement actions;

(6) the number of actions filed in superior court seeking relief from an order of the attorney general; and

(7) any additional information relevant to the administration and enforcement of the open meeting law that the attorney general deems appropriate.

Section 20. (a) Except as provided in section 21, all meetings of a public body shall be open to the public.

(b) Except in an emergency, in addition to any notice otherwise required by law, a public body shall post notice of every meeting at least 48 hours prior to such meeting, excluding Saturdays, Sundays and legal holidays. In an emergency, a public body shall post notice as soon as reasonably possible prior to such meeting. Notice shall be printed in a legible, easily understandable format and shall contain the date, time and place of such meeting and a listing of topics that the chair reasonably anticipates will be discussed at the meeting.

(c) For meetings of a local public body, notice shall be filed with the municipal clerk and posted in a manner conspicuously visible to the public at all hours in or on the municipal building in which the clerk’s office is located.

For meetings of a regional or district public body, notice shall be filed and posted in each city or town within the region or district in the manner prescribed for local public bodies. For meetings of a regional school district, the secretary of the regional school district committee shall be considered to be its clerk and shall file notice with the clerk of each city or town within such district and shall post the notice in the manner prescribed for local public bodies. For meetings of a county public body, notice shall be filed in the office of the county commissioners and a copy of the notice shall be publicly posted in a manner conspicuously visible to the public at all hours in such place or places as the county commissioners shall designate for the purpose.

For meetings of a state public body, notice shall be filed with the attorney general by posting on a website in accordance with procedures established for this purpose.

The attorney general shall have the authority to prescribe or approve alternative methods of notice where the attorney general determines such alternative will afford more effective notice to the public.

(d) The attorney general may by regulation or letter ruling, authorize remote participation by members of a public body not present at the meeting location; provided, however, that the absent members and all persons present at the meeting location are clearly audible to each other; and provided, further, that a quorum of the body, including the chair, are present at the meeting location. Such authorized members may vote and shall not be deemed absent for the purposes of section 23D of chapter 39.

(e) After notifying the chair of the public body, any person may make a video or audio recording of an open session of a meeting of a public body, or may transmit the meeting through any medium, subject to reasonable requirements of the chair as to the number, placement and operation of equipment used so as not to interfere with the conduct of the meeting. At the beginning of the meeting the chair shall inform other attendees of any such recordings.

(f) No person shall address a meeting of a public body without permission of the chair, and all persons shall, at the request of the chair, be silent. No person shall disrupt the proceedings of a meeting of a public body. If, after clear warning from the chair, a person continues to disrupt the proceedings, the chair may order the person to withdraw from the meeting and if the person does not withdraw, the chair may authorize a constable or other officer to remove the person from the meeting.

(g) Within 2 weeks of qualification for office, all persons serving on a public body shall certify, on a form prescribed by the attorney general, the receipt of a copy of the open meeting law, regulations promulgated pursuant to section 25 and a copy of the educational materials prepared by the attorney general explaining the open meeting law and its application pursuant to section 19. Unless otherwise directed or approved by the attorney general, the appointing authority, city or town clerk or the executive director or other appropriate administrator of a state or regional body, or their designees, shall obtain such certification from each person upon entering service and shall retain it subject to the applicable records retention schedule where the body maintains its official records. The certification shall be evidence that the member of a public body has read and understands the requirements of the open meeting law and the consequences of violating it.

Section 21. (a) A public body may meet in executive session only for the following purposes:

(1) To discuss the reputation, character, physical condition or mental health, rather than professional competence, of an individual, or to discuss the discipline or dismissal of, or complaints or charges brought against, a public officer, employee, staff member or individual. The individual to be discussed in such executive session shall be notified in writing by the public body at least 48 hours prior to the proposed executive session; provided, however, that notification may be waived upon written agreement of the parties. A public body shall hold an open session if the individual involved requests that the session be open. If an executive session is held, such individual shall have the following rights:

i. to be present at such executive session during deliberations which involve that individual;

ii. to have counsel or a representative of his own choosing present and attending for the purpose of advising the individual and not for the purpose of active participation in the executive session;

iii. to speak on his own behalf; and

iv. to cause an independent record to be created of said executive session by audio-recording or transcription, at the individual’s expense.

The rights of an individual set forth in this paragraph are in addition to the rights that he may have from any other source, including, but not limited to, rights under any laws or collective bargaining agreements and the exercise or non-exercise of the individual rights under this section shall not be construed as a waiver of any rights of the individual.

2. To conduct strategy sessions in preparation for negotiations with nonunion personnel or to conduct collective bargaining sessions or contract negotiations with nonunion personnel;

3. To discuss strategy with respect to collective bargaining or litigation if an open meeting may have a detrimental effect on the bargaining or litigating position of the public body and the chair so declares;

4. To discuss the deployment of security personnel or devices, or strategies with respect thereto;

5. To investigate charges of criminal misconduct or to consider the filing of criminal complaints;

6. To consider the purchase, exchange, lease or value of real property if the chair declares that an open meeting may have a detrimental effect on the negotiating position of the public body;

7. To comply with, or act under the authority of, any general or special law or federal grant-in-aid requirements;

8. To consider or interview applicants for employment or appointment by a preliminary screening committee if the chair declares that an open meeting will have a detrimental effect in obtaining qualified applicants; provided, however, that this clause shall not apply to any meeting, including meetings of a preliminary screening committee, to consider and interview applicants who have passed a prior preliminary screening;

9. To meet or confer with a mediator, as defined in section 23C of chapter 233, with respect to any litigation or decision on any public business within its jurisdiction involving another party, group or entity, provided that:

(i) any decision to participate in mediation shall be made in an open session and the parties, issues involved and purpose of the mediation shall be disclosed; and

(ii) no action shall be taken by any public body with respect to those issues which are the subject of the mediation without deliberation and approval for such action at an open session; or

10. to discuss trade secrets or confidential, competitively-sensitive or other proprietary information provided in the course of activities conducted by a governmental body as an energy supplier under a license granted by the department of public utilities pursuant to section 1F of chapter 164, in the course of activities conducted as a municipal aggregator under section 134 of said chapter 164 or in the course of activities conducted by a cooperative consisting of governmental entities organized pursuant to section 136 of said chapter 164, when such governmental body, municipal aggregator or cooperative determines that such disclosure will adversely affect its ability to conduct business in relation to other entities making, selling or distributing electric power and energy.

(b) A public body may meet in closed session for 1 or more of the purposes enumerated in subsection (a) provided that:

1. the body has first convened in an open session pursuant to section 21;

2. a majority of members of the body have voted to go into executive session and the vote of each member is recorded by roll call and entered into the minutes;

3. before the executive session, the chair shall state the purpose for the executive session, stating all subjects that may be revealed without compromising the purpose for which the executive session was called;

4. the chair shall publicly announce whether the open session will reconvene at the conclusion of the executive session; and

5. accurate records of the executive session shall be maintained pursuant to section 23.

Section 22. (a) A public body shall create and maintain accurate minutes of all meetings, including executive sessions, setting forth the date, time and place, the members present or absent, a summary of the discussions on each subject, a list of documents and other exhibits used at the meeting, the decisions made and the actions taken at each meeting, including the record of all votes.

(b) No vote taken at an open session shall be by secret ballot. Any vote taken at an executive session shall be recorded by roll call and entered into the minutes.

(c) Minutes of all open sessions shall be created and approved in a timely manner. The minutes of an open session, if they exist and whether approved or in draft form, shall be made available upon request by any person within 10 days.

(d) Documents and other exhibits, such as photographs, recordings or maps, used by the body at an open or executive session shall, along with the minutes, be part of the official record of the session.

(e) The minutes of any open session, the notes, recordings or other materials used in the preparation of such minutes and all documents and exhibits used at the session, shall be public records in their entirety and not exempt from disclosure pursuant to any of the exemptions under clause Twenty-sixth of section 7 of chapter 4. Notwithstanding this paragraph, the following materials shall be exempt from disclosure to the public as personnel information: (1) materials used in a performance evaluation of an individual bearing on his professional competence, provided they were not created by the members of the body for the purposes of the evaluation; and (2) materials used in deliberations about employment or appointment of individuals, including applications and supporting materials; provided, however, that any resume submitted by an applicant shall not be exempt.

(f) The minutes of any executive session, the notes, recordings or other materials used in the preparation of such minutes and all documents and exhibits used at the session, may be withheld from disclosure to the public in their entirety under subclause (a) of clause Twenty-sixth of section 7 of chapter 4, as long as publication may defeat the lawful purposes of the executive session, but no longer; provided, however, that the executive session was held in compliance with section 21.

When the purpose for which a valid executive session was held has been served, the minutes, preparatory materials and documents and exhibits of the session shall be disclosed unless the attorney-client privilege or 1 or more of the exemptions under said clause Twenty-sixth of said section 7 of said chapter 4 apply to withhold these records, or any portion thereof, from disclosure.

For purposes of this subsection, if an executive session is held pursuant to clause (2) or (3) of subsections (a) of section 21, then the minutes, preparatory materials and documents and exhibits used at the session may be withheld from disclosure to the public in their entirety, unless and until such time as a litigating, negotiating or bargaining position is no longer jeopardized by such disclosure, at which time they shall be disclosed unless the attorney-client privilege or 1 or more of the exemptions under said clause Twenty-sixth of said section 7 of said chapter 4 apply to withhold these records, or any portion thereof, from disclosure.

(g)(1) The public body, or its chair or designee, shall, at reasonable intervals, review the minutes of executive sessions to determine if the provisions of this subsection warrant continued non-disclosure. Such determination shall be announced at the body’s next meeting and such announcement shall be included in the minutes of that meeting.

(2) Upon request by any person to inspect or copy the minutes of an executive session or any portion thereof, the body shall respond to the request within 10 days following receipt and shall release any such minutes not covered by an exemption under subsection (f); provided, however, that if the body has not performed a review pursuant to paragraph (1), the public body shall perform the review and release the non-exempt minutes, or any portion thereof, not later than the body’s next meeting or 30 days, whichever first occurs. A public body shall not assess a fee for the time spent in its review.

Section 23. (a) Subject to appropriation, the attorney general shall interpret and enforce the open meeting law.

(b) At least 30 days prior to the filing of a complaint with the attorney general, the complainant shall file a written complaint with the public body, setting forth the circumstances which constitute the alleged violation and giving the body an opportunity to remedy the alleged violation; provided, however, that such complaint shall be filed within 30 days of the date of the alleged violation. The public body shall, within 14 business days of receipt of a complaint, send a copy of the complaint to the attorney general and notify the attorney general of any remedial action taken. Any remedial action taken by the public body in response to a complaint under this subsection shall not be admissible as evidence against the public body that a violation occurred in any later administrative or judicial proceeding relating to such alleged violation. The attorney general may authorize an extension of time to the public body for the purpose of taking remedial action upon the written request of the public body and a showing of good cause to grant the extension.

(c) Upon the receipt of a complaint by any person, the attorney general shall determine, in a timely manner, whether there has been a violation of the open meeting law. The attorney general may, and before imposing any civil penalty on a public body shall, hold a hearing on any such complaint. Following a determination that a violation has occurred, the attorney general shall determine whether the public body, 1 or more of the members, or both, are responsible and whether the violation was intentional or unintentional. Upon the finding of a violation, the attorney general may issue an order to:

(1) compel immediate and future compliance with the open meeting law;

(2) compel attendance at a training session authorized by the attorney general;

(3) nullify in whole or in part any action taken at the meeting;

(4) impose a civil penalty upon the public body of not more than $1,000 for each intentional violation;

(5) reinstate an employee without loss of compensation, seniority, tenure or other benefits;

(6) compel that minutes, records or other materials be made public; or

(7) prescribe other appropriate action.

(d) A public body or any member of a body aggrieved by any order issued pursuant to this section may, notwithstanding any general or special law to the contrary, obtain judicial review of the order only through an action in superior court seeking relief in the nature of certiorari; provided, however, that notwithstanding section 4 of chapter 249, any such action shall be commenced in superior court within 21 days of receipt of the order. Any order issued under this section shall be stayed pending judicial review; provided, however, that if the order nullifies an action of the public body, the body shall not implement such action pending judicial review.

(e) If any public body or member thereof shall fail to comply with the requirements set forth in any order issued by the attorney general, or shall fail to pay any civil penalty imposed within 21 days of the date of issuance of such order or within 30 days following the decision of the superior court if judicial review of such order has been timely sought, the attorney general may file an action to compel compliance. Such action shall be filed in Suffolk superior court with respect to state public bodies and, with respect to all other public bodies, in the superior court in any county in which the public body acts or meets. If such body or member has not timely sought judicial review of the order, such order shall not be open to review in an action to compel compliance.

(f) As an alternative to the procedure in subsection (b), the attorney general or 3 or more registered voters may initiate a civil action to enforce the open meeting law.

Any action under this subsection shall be filed in Suffolk superior court with respect to state public bodies and, with respect to all other public bodies, in the superior court in any county in which the public body acts or meets.

In any action filed pursuant to this subsection, in addition to all other remedies available to the superior court, in law or in equity, the court shall have all of the remedies set forth in subsection (b).

In any action filed under this subsection, the order of notice on the complaint shall be returnable not later than 10 days after the filing and the complaint shall be heard and determined on the return day or on such day as the court shall fix, having regard to the speediest possible determination of the cause consistent with the rights of the parties; provided, however, that orders may be issued at any time on or after the filing of the complaint without notice when such order is necessary to fulfill the purposes of the open meeting law. In the hearing of any action under this subsection, the burden shall be on the respondent to show by a preponderance of the evidence that the action complained of in such complaint was in accordance with and authorized by the open meeting law; provided, however, that no civil penalty may be imposed on an individual absent proof that the action complained of violated the open meeting law.

(g) It shall be a defense to the imposition of a penalty that the public body, after full disclosure, acted in good faith compliance with the advice of the public body’s legal counsel.

(h) Payment of civil penalties under this section paid to or received by the attorney general shall be paid into the general fund of the commonwealth.

Section 24. (a) Whenever the attorney general has reasonable cause to believe that a person, including any public body and any other state, regional, county, municipal or other governmental official or entity, has violated the open meeting law, the attorney general may conduct an investigation to ascertain whether in fact such person has violated the open meeting law. Upon notification of an investigation, any person, public body or any other state, regional, county, municipal or other governmental official or entity who is the subject of an investigation, shall make all information necessary to conduct such investigation available to the attorney general. In the event that the person, public body or any other state, regional, county, municipal or other governmental official or entity being investigated does not voluntarily provide relevant information to the attorney general within 30 days of receiving notice of the investigation, the attorney general may: (1) take testimony under oath concerning such alleged violation of the open meeting law; (2) examine or cause to be examined any documentary material of whatever nature relevant to such alleged violation of the open meeting law; and (3) require attendance during such examination of documentary material of any person having knowledge of the documentary material and take testimony under oath or acknowledgment in respect of any such documentary material. Such testimony and examination shall take place in the county where such person resides or has a place of business or, if the parties consent or such person is a nonresident or has no place of business within the commonwealth, in Suffolk county.

(b) Notice of the time, place and cause of such taking of testimony, examination or attendance shall be given by the attorney general at least 10 days prior to the date of such taking of testimony or examination.

(c) Service of any such notice may be made by: (1) delivering a duly-executed copy to the person to be served or to a partner or to any officer or agent authorized by appointment or by law to receive service of process on behalf of such person; (2) delivering a duly-executed copy to the principal place of business in the commonwealth of the person to be served; or (3) mailing by registered or certified mail a duly-executed copy addressed to the person to be served at the principal place of business in the commonwealth or, if said person has no place of business in the commonwealth, to his principal office or place of business.

(d) Each such notice shall: (1) state the time and place for the taking of testimony or the examination and the name and address of each person to be examined, if known and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs; (2) state the statute and section thereof, the alleged violation of which is under investigation and the general subject matter of the investigation; (3) describe the class or classes of documentary material to be produced thereunder with reasonable specificity, so as fairly to indicate the material demanded; (4) prescribe a return date within which the documentary material is to be produced; and (5) identify the members of the attorney general’s staff to whom such documentary material is to be made available for inspection and copying.

(e) No such notice shall contain any requirement which would be unreasonable or improper if contained in a subpoena duces tecum issued by a court of the commonwealth or require the disclosure of any documentary material which would be privileged, or which for any other reason would not be required by a subpoena duces tecum issued by a court of the commonwealth.

(f) Any documentary material or other information produced by any person pursuant to this section shall not, unless otherwise ordered by a court of the commonwealth for good cause shown, be disclosed to any person other than the authorized agent or representative of the attorney general, unless with the consent of the person producing the same; provided, however, that such material or information may be disclosed by the attorney general in court pleadings or other papers filed in court.

(g) At any time prior to the date specified in the notice, or within 21 days after the notice has been served, whichever period is shorter, the court may, upon motion for good cause shown, extend such reporting date or modify or set aside such demand or grant a protective order in accordance with the standards set forth in Rule 26(c) of the Massachusetts Rules of Civil Procedure. The motion may be filed in the superior court of the county in which the person served resides or has his usual place of business or in Suffolk county. This section shall not be applicable to any criminal proceeding nor shall information obtained under the authority of this section be admissible in evidence in any criminal prosecution for substantially identical transactions.

Section 25. (a) The attorney general shall have the authority to promulgate rules and regulations to carry out enforcement of the open meeting law.

(b) The attorney general shall have the authority to interpret the open meeting law and to issue written letter rulings or advisory opinions according to rules established under this section.

Two Distortions of the Open Meeting Law

How's that old saying go about the devil quoting the Bible for his own ends? The same, it seems, can be said about public officials and the open meeting law, as two items in the news today illustrate.

First is a story from the Worcester Telegram about the Dudley Board of Selectmen's decision to reprimand the town's fire chief for supposedly violating the open meeting law. Did he violate the law by holding a secret meeting? No, the selectmen claim he violated the law by being open about what happened at a meeting. Seems the selectmen insisted in meeting in private to discuss the chief's contract, even though the chief wanted the meeting to be public. After the meeting, he committed the unpardonable sin of revealing some of the selectmen's concerns about his performance. For this, he has been reprimanded.

There may be reasons why the chief should not have spoken in public about what transpired at the meeting. But let's not blame the open meeting law. The law is designed to promote openness, not prevent it. In no way, shape or form did the chief's public comments after a meeting held to discuss his contract constitute an open meeting violation.

Today's other misreading of the open meeting law comes via Wicked Local Arlington, which reports that the School Committee has voted to hold a private meeting with the interim superintendent to decide whether to interview her for the permanent position. When asked what possible justification the School Committee might have for such a private meeting, the chairman said "there's a gray area" that would allow this. Apparently, that's a new exception to the open meeting law, because it sure does not fall under any exception I've read in the law.

An Egregious Open Meeting Violation

I constantly hear the refrain that government officials never intentionally violate the open meeting law. When they do violate the law, these people say, it is only because of an innocent mistake. I urge any who believes that to read this report by The Salem News about the Essex Regional Retirement Board. The article describes multiple, blatant violations, including locking the door to its meeting room to keep out a news reporter who had every legal right to be there. Innocent mistake? I don't think so.

Governor Signs Bill to Reduce Transparency

Dan Ring, State House reporter for The Republican, has a report on the latest move by the state to cut the public out of public works projects: Measure Will Affect Newspaper Advertising.

The kicker is near the end, where Cynthia M. Roy, a spokeswoman for Gov. Patrick, says the law will save time and money. Most newspapers can get these notices in the next day, so what kind of time is saved? As for money, her claim that this will save state government "tens of thousands of dollars" is ludicrous.

I have no objection to the state posting public notices on its own Web site. My objection is doing that to the exclusion of newspapers. Members of the public simply are not going to check a construction-industry web site on a routine basis. These shallow allegations of time and cost savings are subterfuge for shielding this process from the public eye.

In Idaho, A Tougher Open Meeting Law

A revised open meeting law took effect yesterday in Idaho. Notably, the bill toughens the penalties imposed on public officials who violate the law. Under the new law:

• A board member who conducts or participates in an unlawful meeting is subject to a civil penalty of $50.
• A board member who knowingly violates the law is subject to a civil penalty of $500.
• A board member who violates the law twice within a year is subject to a civil penalty of $500.
  

Here is the text of the bill which was signed into law April 13 and took effect July 1. Here is an Associated Press report.

Two Opinion Pieces on Open Meeting 'Deform'

As I wrote here Friday, the ethics bill passed this week by the Massachusetts legislature had the ironic effect of weakening the open meeting law. Two opinion pieces published over the weekend make this point in no uncertain terms:

• Hired guns shoot up Open Meeting law, an op-ed by Larry McDermott, publisher of The Republican.

• Our opinion: Open meeting loopholes tarnish solid reform effort, an editorial in The Patriot Ledger.

Ethics Bill Weakens Open Meeting Law

The Massachusetts legislature yesterday unanimously approved a major ethics bill and Gov. Deval Patrick last night indicated he would sign it. Few members of the public realize that contained within this bill is a major overhaul of the state's open meeting law. Ironically, for a bill that was intended to shore up ethics and accountability in government, the open meeting portions actually make the open meeting law harder to enforce in one material way.

Before I explain, let me first say that several aspects of this bill represent a step forward. Most significantly, it will consolidate enforcement of the open meeting law within the Attorney General's Office, creating a new Division of Open Government. Under prior law, enforcement of local cases was handled by the county district attorney and of state cases by the AG. This resulted in a lack of uniformity in interpretation and application of the law.

Under this new law, the AG will have the authority to investigate and hold hearings on complaints alleging open meeting violations. If the AG finds a violation, she will have the authority to issue various remedial orders. If the public body fails to comply with the AG's order, the AG can file an action in Superior Court to compel compliance. The law preserves the right of private citizens to bring their own actions for enforcement, independent of the AG's office.

Other commendable features of this law include:

• Express clarification that a meeting can take place through "an oral or written communication through any medium, including electronic mail."
  
• Express clarification that "preliminary screening" for purposes of filling a job vacancy ends once the public body is provided with "a list of those applicants qualified for further consideration," thereby requiring all subsequent interviews to be conducted in public.
  
• Creation of a five-member open meeting law advisory commission, composed of the House and Senate chairs of the Joint Committee on State Administration and Regulatory Oversight, a designee of the Massachusetts Newspaper Publishers Association, a designee of the Massachusetts Municipal Association, and a designee of the AG.
  
• Stronger mandates for education of public officials about the open meeting law.
• Annual reporting by the AG on open meeting law enforcement.

So what's not to like? The problem with this bill is that the legislature failed to address the most significant shortcoming of the law, which is its lack of teeth. In fact, on this issue, the bill actually makes the law even weaker.

The MNPA -- for which I serve as executive director -- has pushed for some six years now to add two components to the open meeting law -- penalties on public officials who violate the law and attorneys' fees awards for private citizens who bring lawsuits to enforce the law. As the law now stands, a public official who violates the law faces zero consequences. The body that violates the law can be subject to a fine, but not the individual members. This means that government officials can brazenly violate the law and let the taxpayers pay any penalty that results.

Forty-two states authorize some form of penalty - either civil or criminal or both -- for violations of the open meeting law. In 38 states, the civil fine or criminal penalty is imposed directly against the government official who violates the law. In 21 states, it is actually considered a crime for a public official to violate the law.

This new bill creates no new penalties and weakens the one penalty that the law formerly had. The former law authorized a fine of up to $1,000 against the board or commission that violated the law (but not its members). The new bill changes that to require proof that the board's violation was "intentional." This is an almost impossible hurdle to overcome. Humans have intent, boards do not. How does one prove the intent of a board? To make matters worse, most open meeting violations occur in secret. How is evidence of intent to be found in secret, closed-door proceedings?

The bill also leaves private citizens with no right to collect costs and attorneys' fees for actions to enforce the law. Forty-two states authorize plaintiffs in these cases to recover their costs and 40 authorize them to recover attorneys' fees.

Ironically, even as the full legislature was voting to pass this bill yesterday, the Joint Committee on State Administration and Regulatory Oversight was holding a public hearing on open meeting and public records reform. Passage of this bill yesterday need not be the end of the discussion about open meeting reform. The Joint Committee can recommend further modifications and fine-tuning of the bill. At a minimum, the committee should recommend elimination of the word "intentional" from the bill. Those familiar with the history understand that this word came into an earlier version of this bill as a typo and should have quickly come out. Perhaps the committee will go even further and recommend that, once and for all, the open meeting law be given some actual teeth.

Governor Pushes for Secrecy in Public Contracts

An op-ed I wrote appeared in several Massachusetts newspapers this weekend. Here it is in The Eagle-Tribune: Governor pushes for veil of secrecy in government contracts.

Reasons to Get into Journalism

The blog GoodMorningGloucester has a video interview with Richard Gaines, a reporter for the Gloucester Daily Times and formerly for the Boston Phoenix. I love what he says about why to go into journalism:

"It's a calling. If you enjoy fighting with bullies, if you enjoy fighting with hypocrites, if you enjoy finding people who have inspiring stories to tell. ... It's taking the moving picture of life and putting it into little segments that people can read. "

This is the second part of the interview. Here is part one.

L2L: College Athletes vs. EA Sports and NCAA

This week on the legal-affairs podcast Lawyer2Lawyer, we consider the class-action lawsuit filed by college football and basketball players against EA Sports and the NCAA. The lawsuit claims that electronic games unlawfully appropriate the likenesses of these student athletes.

Our guests to discuss this issue are Peter Goplerud, dean and professor of law at Florida Coastal School of Law, who is widely recognized for his expertise in the field of sports law, and Clay Travis, an attorney and sports writer who formerly was editor at Deadspin.com and now writes for FanHouse.com.

You can listen to the show at the Legal Talk Network or download the MP3 file.

Gov’s ad plan riles newspaper group

Coverage of this week's legislative hearing on public notices: Gov’s ad plan riles newspaper group. See also this editorial from Gatehouse News: Don't reduce access to state contract information.

1st Circuit Denies Review of Libel Ruling

The 1st U.S. Circuit Court of Appeals today turned down a petition asking the full circuit to rehear en banc the controversial decision Noonan v. Staples, in which a three-judge panel ruled that truth is not an absolute defense to libel. My earlier post about that ruling is here.

Following is the text of today's order. A note on the order said that Circuit Chief Judge Sandra Lynch recused herself from the case and did not participate in the vote.

Staples's petition for rehearing en banc, construed also as a petition for panel rehearing, challenges the constitutionality of the Massachusetts General Laws ch. 231, § 92, as construed in the panel's rehearing opinion. Since its initial brief, Staples has argued under the premise that the term "actual malice" in § 92 means "malevolent intent." Yet, Staples did not then challenge the constitutionality of such a construction. Thus, the rehearing opinion found that it need not consider the issue. See Rehearing Opinion at p. 17, n.7.

Staples now contends that it raised the issue in its initial brief. But that brief simply acknowledged that the statute was not constitutional as applied to a matter of public concern. Staples did not timely argue that the present matter was a matter of public concern or that the statute was unconstitutional as applied to a matter of private concern. That Staples did not timely raise the issue is also made clear by the fact that it has not, until now, filed the notice required for a challenge to the constitutionality of a state statute. See Fed. R. App. P. 44(b). The issue is waived, and the fact that the issue raises constitutional concerns does not save the waiver. See, e.g., Rosado-Quiñones v. Toledo, 528 F.3d 1, 6 (1st Cir. 2008) (deeming waived the "question of law about whether there is added First Amendment protection for public employees' filing of lawsuits against their employers on matters in which the public has no interest"); Pérez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 n.7 (1st Cir. 2008); see also Ins. Corp. of Ir. v. Compagnie Des Bauxites De Guinee, 456 U.S. 694, 703 (1982) ("Because the requirement of personal jurisdiction represents first of all an individual [due process] right, it can, like other such rights, be waived.").

Further, Staples has not shown that the constitutional issue is so clear that the panel should have acted sua sponte to strike down a state statute, without the required notice to the state attorney general. Staples still does not cite a case for the proposition that the First Amendment does not permit liability for true statements concerning matters of private concern. The Massachusetts Supreme Judicial Court ("SJC") case relied upon by Staples did not hold that truth is an absolute defense in private concern cases, but rather that a private figure may recover for a negligently made defamatory falsehood in a case of public concern. Stone v. Essex County Newspapers, Inc., 330 N.E.2d 161, 164 (Mass. 1975). And the Supreme Court has stated that as to matters of private concern, the First Amendment does "not necessarily force any change in at least some of the features of the common-law landscape." Phila. Newspapers v. Hepps, 475 U.S. 767, 775 (1986); see also Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749, 761 (1985) ("In light of the reduced constitutional value of speech involving no matters of public concern, we hold that the state interest adequately supports awards of presumed and punitive damages -- even absent a showing of 'actual malice.'"). In fact, were the issue as clear-cut as Staples suggests, the SJC would not likely have limited its own invalidation of § 92 to matters of public concern. Shaari v. Harvard Student Agencies, 691 N.E.2d 925, 929 (Mass. 1998) ("To apply this statute to the defendants' truthful defamatory statement concerning a matter of public concern, even if the statement is malicious, violates the First Amendment." (emphasis added)). Thus, whether § 92 is a "feature[] of the common-law landscape" left unchanged for matters of private concern is an issue on which we now take no position.

Nor it is appropriate to now certify the question to the SJC. We have answered the question of state law regarding the proper interpretation of the statute, and Staples has not challenged that matter on rehearing. The question of the constitutionality of that state law under the First Amendment is a federal question, which we could answer without certification. Though Staples suggests that § 92 may violate the Massachusetts Constitution, it presents no argumentation whatsoever relating specifically to that contention. Further, Staples should not be allowed to escape the consequences of waiver through certification.

The petition for rehearing having been denied by the panel of judges who decided the case, and the petition for rehearing en banc having been submitted to the active judges of this court and a majority of the judges not having voted that the case be heard en banc, it is ordered that the petition for rehearing and the petition for rehearing en banc be denied. The alternative request for certification to the SJC is also denied.

Lines drawn in battle to open government

The Springfield Republican kicks off Sunshine Week with a piece on the need to reform Massachusetts public records and open meeting laws: Lines drawn in battle to open workings of government.

Official Questions Closed Door Meeting

"Just because you can do it, doesn't mean you should do it." That notable quote came from Nicholas V. Hammond, a selectman in the town of Auburn, Mass., regarding a closed-door session that should have been open. As reported by Bill Fortier in the Worcester Telegram & Gazette, the town's selectman and its school committee went into a joint executive session, ostensibly to discuss strategy involving collective bargaining. That is one of the reasons for an executive session allowed under the open meeting law. But, said Hammond of the lengthy meeting, "everything but that was discussed." He declined to tell the reporter what was talked about.

Journalists Warily Eye Massachusetts Libel Ruling

AP reporter Denise Lavoie has this story today on the 1st U.S. Circuit Court of Appeals decision in Noonan v. Staples that I wrote about on Feb. 16.

Libel Ruling Protects Anonymous Comments

Maryland's highest appellate court has issued a significant ruling underscoring the First Amendment's protection of anonymous comments posted online. The Maryland Court of Appeals decision, Independent Newspapers v. Brodie, is only the second by a state supreme court to confront the disclosure of those whose anonymous comments are alleged to be defamatory. The court established a strict, five-step process that courts in Maryland must follow before requiring disclosure of someone's identity:

When a trial court is confronted with a defamation action in which anonymous speakers or pseudonyms are involved, it should, (1) require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, including posting a message of notification of the identity discovery request on the message board; (2) withhold action to afford the anonymous posters a reasonable opportunity to file and serve opposition to the application; (3) require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster, alleged to constitute actionable speech; (4) determine whether the complaint has set forth a prima facie defamation per se or per quod action against the anonymous posters; and (5), if all else is satisfied, balance the anonymous poster’s First Amendment right of free speech against the strength of the prima facie case of defamation presented by the plaintiff and the necessity for disclosure of the anonymous defendant’s identity, prior to ordering disclosure.

The case involved anonymous comments critical of the cleanliness of a Dunkin' Donuts owned by Maryland developer Zebulon Brodie. Brodie sued the online newspaper that hosted the comments and three John Doe defendants. The trial judge dismissed the newspaper from the lawsuit under the Communications Decency Act, but nevertheless ordered the newspaper to provide identifying information about the three John Doe defendants and two others not named in the complaint.

It is interesting to note that the Court of Appeals could have disposed of this case without addressing this important issue. In reviewing the lower-court proceedings, it found that the three John Does identified in the complaint had nothing to do with the allegedly defamatory comments concerning cleanliness of the Dunkin' Donuts. The two who did make those comments were never named in the complaint. In light of this, Brodie had not established a valid cause of action for defamation against any defendant and the judge had no grounds to order the disclosures. But the Court of Appeals went on to decide the broader issue anyway, explaining, "We did not take this issue just to sort out the record but to give guidance to trial courts addressing similar matters."

You can read more about this case from The Baltimore Sun and The Washington Post.

Board's E-mails Violated Open Meeting Law

The Essex County District Attorney's Office has determined that the Boxford, Mass., Board of Health violated the open meeting law when it deliberated policy issues through a series of e-mails sent between March and June 2008. Both Wicked Local and The Salem News have reports this week of the DA's ruling, which it issued Nov. 13. The e-mails discussed the formation of a horse-stables regulation committee and what its duties would be.

More Views on 'Dangerous' Libel Case

Friday's 1st Circuit decision that truth is not always a defense to libel -- which I posted about here and here -- continues to draw reactions from other bloggers:

• At Nieman Journalism Lab, Martin Langeveld writes: "The case threatens to muzzle both news and entertainment media, and could be particularly dangerous to independent bloggers and small startup news organizations — neither of which is likely to have the legal resources a traditional established news organization has to battle libel suits."

• Los Angeles entertainment lawyer Gordon P. Firemark blogs: "If allowed to stand, this case could make anybody a potential defendant. It will certainly have a chilling effect on important forms of speech, such as documentary films and many forms of investigative journalism."

More on 1st Circuit's 'Dangerous' Libel Ruling

The 1st Circuit's libel ruling that I wrote about here yesterday has drawn reaction from a number of commentators. Dan Kennedy wrote about it for his weekly column in the Guardian. (In fact, it was Dan's request for comment that led me to write my post.) Dan also wrote about it on his blog, Media Nation, and at the blog of the New England First Amendment Center. Dan's Media Nation post includes a lengthy analysis by Rob Bertsche, one of the top media lawyers in New England. Other comments about the case come from Bill Ketter, vice president of news for Community Newspaper Holdings Inc., and Sam Bayard, posting at the Citizen Media Law Project. The ABA Journal also has a short piece about it.

Just to highlight two of the many thoughtful comments these others have made, let me start with this from Dan Kennedy's Guardian piece:

If Torruella's dangerous opinion were to lead federal judges' finding state laws similar to the 1902 statute in Massachusetts, the result could turn back the clock on freedom of speech and freedom of the press.

If the truth no longer sets us free, then the first amendment will have shrunk beyond recognition. The media will lose, of course. But so will the public they ostensibly serve.

And then this from Rob Bertsche, via Kennedy's blog:

With this decision, the First Amendment has been replaced by the maxim, "If you don't have anything nice to say, don't say it."Consider the irony: The Supreme Court has said that there is constitutional protection for false statements on matters of public concern, but now the First Circuit says there is no constitutional protection for true statements on matters of private concern. What's worse, the court offers no guidance about how to distinguish what is of "public concern" from what is of "private concern."

As I said in my original post: Be afraid, be very, very afraid.

Think You Know Libel Law? Think Again

A bedrock principle of libel law is that truth is an absolute defense. If what you say about someone is true, the person cannot win a libel case against you, even if you defame them. The federal appeals court in Boston put a jackhammer to the bedrock this week. In Noonan v. Staples, it ruled that even a true statement can be subject to a libel lawsuit if it was said with actual malice. In so deciding, the three-judge panel did an about face, reversing its own earlier decision in the same case. You need not be superstitious to appreciate the import of this Friday the 13th ruling. It is the most dangerous libel decision in decades. The decision puts a crack in the bedrock that threatens to undermine free speech.

To reach this outcome, the 1st U.S. Circuit Court of Appeals panel dusted off a 1902 statute that the highest state court in Massachusetts long ago ruled unconstitutional in a related context. The statute, G. L. c. 231, Section 92, says that truth is a defense to libel "unless actual malice is proved." In a 1998 case, Shaari v. Harvard Student Agencies, the Supreme Judicial Court ruled that statute unconstitutional as applied to matters of public concern. Citing a line of U.S. Supreme Court opinions leading back to the seminal 1964 case, New York Times v. Sullivan, the SJC said, "To apply this statute to the defendants' truthful defamatory statement concerning a matter of public concern, even if the statement is malicious, violates the First Amendment."

Remarkably, the 1st Circuit sidestepped Shaari with barely a nod to its significance. In a 34-page opinion written by Circuit Judge Juan R. Torruella, the court gave Shaari only a footnote. It dismissed Staples' argument that Shaari applied here on a procedural formality. "This argument is not developed now and was not raised in the initial briefing. Accordingly, we do not consider it at this time." It ignored Shaari even though the SJC suggested in dictum that the ruling should apply equally to private cases. "Although the Supreme Court has instructed that private figure plaintiffs may recover 'on a less demanding showing than that required' in cases of public figure plaintiffs, ... the falsity of the defendant's defamatory statement regarding matters of public concern remains a prerequisite to recovery," the SJC said.

At issue in this case was an e-mail a Staples executive sent to some 1,500 employees about the termination of Alan Noonan, a Staples sales director. The company terminated Noonan for cause after investigators concluded that he had deliberately falsified expense reports. The next day, Executive Vice President Jay Baitler sent the e-mail. "It is with sincere regret that I must inform you of the termination of Alan Noonan's employment with Staples," he wrote. "A thorough investigation determined that Alan was not in compliance with our [travel and expense] policies."

As the 1st Circuit itself acknowledged, "everything said in the e-mail was true." But it said Noonan could still have a claim under the 1902 statute if he could show that the e-mail was sent "with actual malice." The Supreme Court's decision in New York Times v. Sullivan defined actual malice as requiring knowledge that a statement was false or reckless disregard for its truth or falsity. The first time the 1st Circuit decided this case, it applied that standard to dismiss Noonan's appeal. This time, it leapfrogged back in time over 40 years of Supreme Court precedent to apply a 1903 SJC ruling that defined actual malice as "malicious intention," which Torruella recasts as "ill will."

"From this evidence, a jury could permissibly infer that Baitler singled out Noonan in order to humiliate him," Torruella wrote. He cites three pieces of evidence he considers key. First, Baitler had never before referred to a fired employee by name in a communication to employees. Second, he sent no memo about another employee who was fired for embezzling money through fraudulent expense reports. Third, he sent the e-mail to some 1,500 employees, many of whom did not travel and had no reason to be reminded of the policy. "The presence of these three pieces of evidence support inferences upon which a jury could base a verdict for Noonan," Torruella said.

This is far from the end of this case. The 1st Circuit's decision sends it back to the lower court for a trial to determine how the case should be decided. Most likely, Staples will ask the full panel of 1st Circuit judges to review this case en banc. It could even make its way to the Supreme Court. For the time being, however, be afraid -- be very, very afraid -- of this precedent. If ill will is all that is needed to turn a truthful statement into libel, then everyone is a potential defendant.

Public Records Panel Friday in Boston

I received the following announcement from Bruce Mohl, editor of CommonWealth Magazine:

January 30 , 2009
Hard Data: A panel discussion on the Massachusetts Public Records Law
10:00 a.m. to 11:30 a.m.
The State House
Room A-2
Boston, MA

CommonWealth magazine will host "Hard Data: A panel discussion on the Massachusetts Public Records Law." Join legislators, lawyers, and journalists as they explore why the law designed to shed light on the inner workings of state and local government is instead leaving much of the bureaucracy in shadows, if not total darkness. The panel will feature Alan Cote, the state's supervisor of public records; Rep. Antonio Cabral, who has filed legislation amending the Public Records Law; Walter Robinson, a long-time investigative reporter with the Boston Globe who now teaches at Northeastern University, and Jonathan Albano, a partner at Bingham McCutchen. Moderated by CommonWealth Editor Bruce Mohl.

Click here to rsvp or call (617) 742-6800 ext. 120.

Lowell Sun Files Open Meeting Complaint

Latest example of government officials turning the law upside down: Preparing to go into a closed school committee meeting, the Wilmington, Mass., school superintendent told a Sun reporter that it would be illegal for the committee to meet in public. In fact, the law requires a public meeting before going into closed session. The Sun has filed a complaint with the Middlesex district attorney.

Time Almost Up: Help Us Win Best Podcast

Voting ends tomorrow, Jan. 2, for best legal podcast in the ABA Journal Blawg 100. Our podcast, Lawyer2Lawyer, was in the lead, but has fallen into second place in these waning hours, behind the LexisNexis Legal News and Litigation Report. Voting is easy -- all you have to do is click on a box. Do it today (or tomorrow) and forward this on to your friends.

Vote here.

Our Podcast Named Best for Lawyers

For the third year running, Dennis Kennedy's Blawggie Awards have named Lawyer2Lawyer as the best legal podcast. This year, we tied for best with Denise Howell's This Week in Law. Lawyer2Lawyer also won the Blawggie in 2007 and 2006.

Lawyer2Lawyer was recently selected as a top legal podcast by the editors of the ABA Journal and is currently in a neck and neck competition for first place in the ABA Journal's readers' poll. (Please vote if you haven't already.)

Here is what Dennis Kennedy said about L2L:

Bob Ambrogi's and Craig Williams' Lawyer2Lawyer Podcast is the longest-running weekly legal podcast and has more than 100 episodes. They cover many legal topics, which is both a plus and a minus, since an episode might stray outside your area of interest. But they generally do a great job of finding broad enough topics and getting excellent guests on leading edge topics.

Judge Reprimanded for Letters to Publisher

The judge who sent threatening letters to the publisher of The Boston Herald received a public reprimand today from the Supreme Judicial Court. The SJC concluded that Superior Court Judge Ernest B. Murphy violated standards of judicial ethics when he wrote two letters to Herald Publisher Patrick J. Purcell on official court letterhead demanding payment of a more than $2 million libel award. From today's opinion:

It is beyond serious dispute that the letters sent by Judge Murphy do not promote public confidence in the judiciary. Judge Murphy concedes that he should not have used judicial letterhead. But more than stationery is at issue here. Although a judge is not prohibited from communications related to personal litigation, including those in pursuit of settlement, permissible communications must reflect the standards required to be followed by a judge both on and off the bench.

"That the standards imposed on judges are high goes without saying. Because of the great power and responsibility judges have in passing judgment on their fellow citizens, such standards are desirable and necessary and there should be strict adherence to them. Failure on the part of even a few judges to comply with these standards serves to degrade and demean the entire judiciary and to erode public confidence in the judicial process." Matter of Morrissey, 366 Mass. 11, 16-17 (1974). In sending the letters at issue, Judge Murphy did not meet the high standards required of judges.

The full-text of the opinion is here: In the Matter of Ernest B. Murphy, SJC-10179 December 18, 2008.

Salem News: Why the Secrecy?

Commenting on the Haverhill school committee's secret meeting to discuss an overdue electric bill, The Salem News says:

In general, public officials should err on the side of openness rather than privacy. They claim to want the public trust. Conducting business behind closed doors is not the way to gain, or hold, that trust.

Where there is an illegal closed-door meeting in government, there is probably someone trying to cover his or her political butt.

MNPA Annual Meeting: Still Time to Register

The annual meeting of the Massachusetts Newspaper Publishers Association is this Friday, Dec. 5. There is still time to register and you can do so using the 2008 registration form.

The luncheon speaker is retiring Supreme Judicial Court Justice John M. Greaney, longtime cochair of the SJC's Judiciary-Media Committee. Today is his last day at the court before he joins the Suffolk University Law School faculty. (See Saturday's profile of Justice Greaney by AP writer Denise Lavoie.)

The morning panel will explore the legal issues surrounding blogs and comments on newspaper-hosted Web sites. Three experts will share their insights and advice:

• Robert A. Bertsche, Esq., a nationally known media lawyer and partner with the Boston firm Prince, Lobel, Glovsky & Tye.
• David Ardia, Esq., fellow at the Berkman Center for Internet and Society and the director of the Citizen Media Law Project, which provides legal education and resources for individuals and organizations involved in citizen media.
• Ed Kubosiak, editor-in-chief of MassLive.com.
  

The day begins with the MNPA's annual business meeting at 10 a.m., followed by the panel discussion at 11, a reception at noon and the luncheon at 12:30. The event is being held at Anthony's Pier 4 in Boston.

Questions? E-mail info@masspublishers.org.

Two New Open Meeting Investigations

In Brookfield, the Worcester district attorney is investigating allegations that the Board of Selectmen violated the open meeting law twice in as many months, the Worcester Telegram & Gazette reports. Two selectmen are alleged to have participated in unposted meetings on July 8 and Sept. 9. Both allegedly involved private meetings held just prior to or immediately following public selectmen's meetings.

In Harvard, School Committee Chairman Stuart Sklar announced during a public meeting that the district attorney's office is investigating whether the committee violated the open meeting law on Sept. 18, Nashoba Publishing reports. Three of the committee's five members attended a "coffee" at one member's home to receive public input regarding a contract extension for the school superintendent.

The latter item provides this week's classic misinterpretation of the open meeting law. School Committee Chairman Sklar offered this explanation for why he believed no violation occurred: "I was very careful to not speak to [fellow committee member Patty Wenger] when I was there. And if I remember correctly, Patty didn't speak at all."

Boston Globe Newsroom

Cell phone pic taken yesterday during tour.

Several Open Meeting Items Today

A number of open meetings items in the news today:

• Board Cited 3rd Time on Meeting Law. For the third time in a year, the Charlton Water-Sewer Commission has been cited for violating the open meeting law.

• Town Manager Under Fire. Stoughton residents vent anger over perceived open meeting law violation.

• Lodge: Patrick Locks Out the Public. Metrowest Daily News Editor Richard Lodge blasts Gov. Patrick for a series of closed-door meetings with local officials.

• Boston City Council admits open meeting law violations. See the posts here and here from the blog The BIG Campaign, which say that the council has filed a motion that would allow judgment against it in a long-fought (and expensive) open meeting battle.

The Wilkerson Case and the Open Meeting Law

Sen. Diane Wilkerson faces the possibility of prison for allegedly violating the law and the public trust. Yet other public officials involved in this case also may have violated the law and the public trust, but they are unlikely to face any consequences. That is because their violations were of the open meeting law -- one of the few laws on the books that carries no penalties for those who violate it.

The apparent open meeting law violation involves the Boston Licensing Board's issuance of the liquor license that is at the heart of the complaint against Wilkerson. Kevin McCrea wrote about this yesterday at his blog, The BIG Campaign, and Universal Hub picked up on it today. Consider this excerpt from the affidavit of FBI Special Agent Krista L. Corr, which forms the basis for the complaint against Wilkerson. It comes after the affidavit describes Wilkerson's alleged efforts to strong-arm the BLB into granting a license to the planned club Dejavu. References to CW are to the unidentified cooperating witness:

23. Boston Licensing Board "Smoke and Mirrors": On the same day, August 15, 2007, the BLB held a public hearing at Boston City Hall. Dejavu's application for a license did not appear on the agenda that day. Agents attended the public hearing and there was no public discussion of Dejavu's application or a public vote to grant Dejavu any type of license. Despite this, the attorney recruited by WILKERSON later left a message for the CW telling him that "the vote was in" and that the beer and wine license had been approved. When the CW subsequently told WILKERSON in a recorded call that there was no mention of Dejavu's application at the BLB public hearing but that the attorney claimed that the license was granted, WILKERSON responded that the way the BLB did its business was "all smoke and mirrors." The following Monday, August 16, 2007, the CW, at the attorney's direction, called WILKERSON and left her a voicemail message requesting that WILKERSON be "very, very nice" to the BLB Chairman at the meeting scheduled for that day. The attorney subsequently left a message on the CW's telephone stating that he had, "talked to the Senator [WILKERSON] this morning" and told her that the license was "all set."

25. Boston Licensing Board Awards Dejavu a Beer and Wine License: On August 16, 2007, the BLB issued a letter notifying Dejavu that its petition for a malt and wine license had been granted. On the same day, WILKERSON met with the BLB Chairman, the Senate President, the Boston City Council President, and Senator Y to discuss the status of the Dejavu license and related issues. The outcome of the meeting was an agreement that the City of Boston would submit, and WILKERSON would sponsor, legislation which would authorize 40 new nontransferable liquor licenses and 30 new nontransferable beer and wine licenses for the City of Boston. ... It was understood that Dejavu would receive one of these new special liquor licenses, if another one did not become available first, and that WILKERSON would be able to control several other licenses.

Surprising to me is that when I testified before Sen. Wilkerson on the need for open meeting law reform, she spoke forcefully in agreement. As a matter of fact, she co-chaired that hearing on June 19, 2007 -- just one day after the alleged bra-stuffing incident. Here is what I wrote about that hearing at the time:

In comments during the hearing, both Rep. Cabral and Sen. Dianne Wilkerson (D-Boston), the Senate chair, indicated their support for strengthening the enforcement provisions of the open meeting law. When an opponent of the bill testified that officials who violate the open meeting law do so innocently, Sen. Wilkerson responded that her experience suggested otherwise. She has served on numerous boards and commissions, she said, and has seen them "skate close to the edge a lot." Both Sen. Wilkerson and Rep. Cabral appeared to agree that adding penalties and attorneys' fees is necessary in order to enforce the law.

If the allegations against her are true, then even as she condemned officials who "skate close to the edge," she was already well onto the thin ice. Could the BLB's "smoke and mirrors" be the smoking gun that leads to open meeting law reform?

A Call for a Public Access Task Force

I tend to equate the suggestion, "Appoint a committee," with "Avoid a decision." But the more I read about the need for reform of Massachusetts' open-government laws, the more frustrated I get at lawmakers' lack of action. I now believe that this is one problem that appointing a committee could actually help fix. It should be a bipartisan task force, appointed by the governor, with a mandate to study the state's open meetings and public records laws and recommend a concrete slate of reforms. The committee should include state and local government officials, journalists, citizens, lawmakers, law enforcement officials, legal advocates and other interested parties.

Colman Herman's piece in the current issue of CommonWealth convincingly makes the case for the need for reform of the public records law. For the last two legislative sessions (that's four years) I and many others have presented the same case for the open meeting law. As I've argued in op-eds in The Boston Herald and The Boston Globe, in blog posts and in testimony before the legislature, the Massachusetts open meeting laws are among the weakest in the nation, with no consequences for the individual officials who break the law.

The need for reform is hardly breaking news. In addition to my law practice, I am executive director of the Massachusetts Newspaper Publishers Association. When I first took that job in 2004, the first major issue the membership asked me to tackle was public access. Their reporters and readers had complained about the escalating decrease in access ever since 9/11. We decided to focus on open meetings because that was where we saw the greatest need -- or, put another way, where we saw the least compliance with the law. We feared that pursuing an agenda of more comprehensive reform would meet multiple roadblocks.

But as Herman's piece and other recent developments help illustrate, public records and open meetings are not separate issues to be dealt with in different legislative bundles. My sense -- I need to double check my facts on this -- is that most states' laws address access to meetings and access to records in a single legislative scheme. This makes sense. It makes the applicable laws easier to find, easier to understand and easier to enforce. Perhaps this might be the first issue that this task force should take up.

Our state's public access laws are antiquated, unwieldy and often ineffective. If we are to achieve meaningful reform of these laws, there must be thorough study and thoughtful deliberation. That level of careful study rarely occurs in the course of a legislative session. If it is ever going to happen, I have come to believe, it must be through an officially sanctioned task force. Let the task force fashion a reform bill and hope the legislature then has the guts to act on it. In a state that has too long opted to avoid any decisions on public-access reforms, maybe appointing a committee would break the deadlock.

Ambrogi Elected Trustee of Bar Foundation

I am extremely honored to announce that I have been elected a trustee of the Massachusetts Bar Foundation, the premiere legal charity in Massachusetts working to increase access to justice for all people in the state. The MBF is the philanthropic partner of the Massachusetts Bar Association and is one of three charities designated to distribute IOLTA funds to programs that provide civil legal services and that enhance the administration of justice.

I have been a fellow of the MBF since 1992 and a life member since 2002. I have also served on its regional and subject-matter grant-making committees for several years. I was elected to fill the seat vacated by a retiring trustee, Carol Witt of Salem, and as such will serve an abbreviated term through January 2011. MBF President Laurence M. Johnson, a partner with Davis, Malm & D’Agostine in Boston, issued a statement announcing my election in which he said, "Attorney Ambrogi has been an active supporter of the MBF for many years, and we are delighted to welcome him to the Board. He brings a wealth of knowledge that will help the MBF to strengthen its work in promoting equal access to justice in the Commonwealth."

Yet Another Open Meeting Violation

Milford selectman violated "both the letter and the spirit" of the open meeting law when they met privately last summer with a real estate developer to discuss a proposed casino, the Worcester district attorney ruled this week. I take "the letter and the spirit" to imply that the board's violation was not just literal, but also intentional. Hardly matters, given that violations of the open meeting law in this state -- intentional or not -- carry no meaningful consequences.

Read more about the DA's ruling from The MetroWest Daily News, whose editor, Richard Lodge, initiated the complaint over the closed meeting. Notably, all the DA could do to remedy the violation was to order the board to release its minutes. This illustrates the fact that Massachusetts has one of the weakest open meeting laws in the nation in its provisions for enforcement. The Massachusetts Newspaper Publishers Association and others have pushed for the legislature to toughen the law, to no avail.

One of the most frequent arguments against a tougher law is that officials who violate it always do so out of negligence or misunderstanding -- never intentionally. Yet here is another example of a board contorting the clear language of the law in order to cut the public out of the conversation. This was an exploratory meeting to discuss a possible casino development in Milford. It was precisely the sort of subject about which the town's residents had every right to be informed. If only officials would consider the spirit of the law, perhaps they'd be less likely to violate its letter.

As Open Meeting Law Burns, Legislature Fiddles

Massachusetts district attorneys have slapped the knuckles of at least two more town boards for violations of the open meeting law. I wrote here last week about the Worcester DA's ruling that the Charlton board of selectman violated the law by meeting in private to evaluate the town administrator. This week, the Worcester DA found a similar violation by the Harvard School Committee, ruling that it violated the law by conducting a significant portion of the school superintendent's evaluation in private. Not only that, but the school committee kept no written records of the process "so as to avoid public scrutiny," the DA found, according to a report published by Nashoba Publishing Online. Meanwhile, the Norfolk DA -- without expressly finding a violation of the law -- told selectmen in Holbrook that they should discontinue meeting in private to discuss a possible lease of town land, according to Wicked Local Holbrook.

The Massachusetts legislature will soon end a session in which it had its best opportunity in years to pass meaningful open meeting law reform. Rep. Antonio Cabral of New Bedford worked hard to put together a substantive bill. The AG had crafted her own bill. Rep. Cabral had brought a range of interest groups to the table to try to work out their differences -- from municipal lawyers to media groups to public interest groups. But the bill seems sure to die due to disinterest among legislative leaders.

In these waning days of the session, the legislature has found the time to debate an official state novel, pass a law freeing golf courses to sell alcohol anywhere on the course, designat a rock in Fall River as the state's official glacial rock, exempt certain antique-car seats from the seat belt law, and authorize Lynn to license a florist to sell alcohol. But it is unable to find the time to address the urgent need to clarify and strengthen the open meeting law.

A Worcester Telegram editorial this week said that public officials should easily understand the law's clear mandate: "to give the public maximum access to public decision-making. Excluding the public from decision-making -- via executive sessions, e-mail exchanges, chats at the local coffee shop or through an elaborate pre-evaluation procedure -- is a violation of the letter and spirit of the law." If only it were that easy. Unfortunately, whether negligently or intentionally, public officials routinely violate the open meeting law. Unless and until the legislature acts to clarify the law and give it some teeth, the violations will continue.

DA Says Town Broke Open Meeting Law

Worcester District Attorney Joseph D. Early Jr. has ruled that the Charlton, Mass., board of selectmen violated the open meeting law by meeting in private to evaluate the job performance of Town Administrator Robin Craver. The DA was acting on a complaint filed by the Telegram & Gazette, which reported the ruling in an Oct. 11 story, Town Manager Evaluation Ruled Illegal. In an Oct. 7 letter, the DA's office notified the selectmen that, in its opinion, the law requires performance evaluations of high-level public officials to be conducted in open session.

The case is interesting in that the selectmen sought to avoid an actual meeting. Instead, the chair sent out a summary evaluation and each board member reported back to the chair with comments. The chair compiled their feedback into a final evaluation, which he then discussed with the town administrator. Only after finishing the evaluation process did the chair read the summary evaluation at a public meeting.

The DA said that, even without a meeting, this process violated the law "by conducting the significant portion of the evaluation of the Town Administrator through a wholly written process that excluded the public." The letter continued: "The Legislature did not intend to allow Boards to shield their deliberations regarding performance evaluation of high-level employees from public disclosure by utilizing a process of written evaluations that are not made available to the public." In this sense, the case seems to parallel those involving "serial e-mails" or "serial meetings," where no single deliberative meeting is ever held but a violation is found nonetheless.

Springfield Acts to Open Police Board

I posted here last week about a ruling from the Hampden County district attorney that a Springfield board created by the mayor to review citizen complaints against police is not covered by the open meeting law. Now, The Republican reports that the City Council is considering re-establishing the board through a municipal ordinance, which would have the effect of bringing the board under the open meeting law. For now, the council sent the proposal to a committee for study. It will take it up again when the committee reports back.

Judge Grants Press Access to Poutre Testimony

A judge in Springfield ruled this morning that the news media will be allowed to cover the testimony of 14-year-old Haleigh Poutre if she appears in court to testify in the child abuse case against her stepfather, Jason D. Strickland.

According to a report published today by The Republican, Hampden Superior Court Judge Judd J. Carhart denied the request of the state Department of Children and Families to exclude media coverage if Poutre testifies. He said he would make sure that the press makes accommodations that will be sensitive to the girl, who now lives in a Boston rehabilitation hospital because of brain injury.

Lawyers for both The Republican and The Boston Globe argued for access. On Sunday, The Republican's publisher, Larry McDermott, published a column about his newspaper's request for access, Case Is About Accountability, Not 'Glory'.

Mass. Libel Case Survives Appeal

A libel case brought by a former Abington town official against the Brockton Enterprise will be allowed to proceed to trial, based on a ruling issued today by the Massachusetts Appeals Court. In Howell v. The Enterprise Publishing Company, the court refused to dismiss claims against the newspaper, despite the newspaper's arguments that its stories were protected by the "fair report" privilege.

The case involves a 2005 series of stories by reporters Elaine Allegrini and Allan Stein covering James F. Howell's termination from his position as superintendent of Abington's sewer department. His termination came after the town sewer commission determined that he had used town computers for personal business and for storing inappropriate images. Howell's libel suit alleged that the Enterprise defamed him by accusing him of storing pornography on town computers and by making other allegations that he says are false.

The Enterprise sought to have the case dismissed through summary judgment, which requires a finding that there are "no issues of material fact" that need to be decided through a trial. As to each of Howell's allegations, the court found that there were disputed issues of fact, making summary judgment inappropriate. Among the key contentions addressed by the court's decision:

• The Enterprise described images on Howell's computer as pornographic, relying in part on the sewer commission's characterization of them as such. Howell contends that the images were comical, e-mailed to him by friends, and not pornographic. The court ruled that a jury should decide whether they were pornographic.
• Some Enterprise reports about Howell alluded to the unrelated case of an East Bridgewater official who was found to have child pornography on his computer. These allusions, Howell argues, raised the insinuation that he had child pornography. The court agreed, finding that a "reader reasonably could conclude" there was an association.
• One article inaccurately reported that a conflict-of-interest charge against Howell had been sustained. The Enterprise argued that the "gist" of its article was correct. But the court found that the "inaccuracy was not merely a question of degree."
  

A significant aspect of this opinion is the court's discussion of the fair report privilege -- the idea that a newspaper has a right to rely on and report what is contained in official government reports. As noted above, the Enterprise based its reporting in part on findings by the town sewer commission that characterized the images as pornographic. To that, the appeals court said:

"Even assuming, but not deciding, that the fair report privilege is otherwise applicable to the matters reported on in the articles about Howell, its protection extends only to reports that are both fair and accurate. ... In determining whether a report is fair and accurate, the test is whether a reporter's 'rough-and-ready summary' of the matter reported on is 'substantially correct.' ... Where there is a basis for divergent views, the question whether a report is fair and accurate is for the jury. ... As discussed, supra, here there are material factual issues in dispute regarding whether the articles are fair and accurate. Thus, the judge correctly concluded that summary judgment is not appropriate as to Howell's defamation claims."

Howell had also sued the Enterprise for invasion of privacy. The Appeals Court agreed with the Enterprise that the privacy claim should be dismissed, concluding that Howell's termination was a matter of legitimate public interest.

Police Board Not Bound by Meeting Law

The Massachusetts open meeting law does not apply to a board created to review citizen complaints against police, the Hampden County district attorney's office has decided, according to a report yesterday in The Republican newspaper. The opinion issued by Assistant District Attorney Katherine E. McMahon concludes that the Community Complaint Review Board is not a governmental body covered by the law and therefore does not have to post notices of its meetings.

Springfield's mayor created the nine-member board last year to review resident complaints against the police department. The executive order creating the board expressly stated that it "shall not be a board of the city, but a board of mayor." Given this, the DA's office concluded the board serves only as an adviser to the mayor.

I have not seen the DA's opinion letter. If this board is purely advisory, the ruling is probably correct -- even if unfortunate. The open meeting law does not apply to an individual government official such as a mayor, only to committees and boards. If official who is exempt from the law appoints an informal committee to provide advice on a matter within the authority of that official, that committee is also exempt from the law.

This interpretation is based on a 1991 Supreme Judicial Court decision, Connelly v. School Committee of Hanover, that held that a committee appointed by a school superintendent to assist him in hiring a school principal was not covered by the law.

"Of special significance is the fact that the superintendent, because he is clearly not a 'governmental body,' could, by himself, have accomplished the task of screening and interviewing candidates in a closed session, entirely free from the requirements of the open meeting law. This was his independent and exclusive statutory responsibility, ... and the selection committee was assembled merely to assist him in carrying out his responsibility. We see no persuasive reason to hold that an interviewing and screening process, which is exempt from the open meeting law when carried out by the superintendent, should be subject to the law when carried out by individuals informally appointed by the superintendent to assist him. The selection committee does not fall under the statute because it is not a committee of the town of Hanover but a committee of the superintendent."

This outcome nevertheless begs the question: Why not comply with the open meeting law? In other words, even though a committee is not required to follow the law, it is clearly permitted to do so. If the function of this board is to build citizen confidence in the Springfield police department, then shouldn't the board conduct its business in public view? The answer seems easy to me.

Mass. Court Says News Carrier is Employee

In a case involving the Worcester Telegram and Gazette, the state Appeals Court ruled yesterday that independent news carriers are to be considered employees under the state's unemployment compensation law. The ruling hinged on the "degree of control" exercised by the newspaper over the carrier, with the court finding that the T&G exercised greater control than did the Athol Daily News in a 2003 case in which the Supreme Judicial Court reached the opposite conclusion.

• The court's opinion: Driscoll v. Worcester Telegram & Gazette.
• The T&G news report: State Appeals Court rules T&G carrier as employee.
  

Key excerpts on the control issue:

"WT&G retained control over its carriers' routes by requiring that each carrier provide a list of the delivery order, and continue to deliver the newspapers in that order. WT&G's control of the routes included the right to require carriers to deliver to some customers before others, and to change the routes or papers to be delivered.

"Furthermore, the district manager directly supervised the new carriers, and retained the authority to go on the route to determine if the carrier was performing his job to WT&G's and the customers' satisfaction. WT&G required its carriers to modify their performance to satisfy a customer, and could discharge a carrier because of customer complaints. ... Other undisputed facts support the conclusion that Driscoll was an employee and further distinguish the circumstances in this case from those in Athol Daily News. WT&G reserved the right to demand additional services from its carriers, such as delivering product samples or installing delivery tubes. The publisher in Athol Daily News had no such right. ... WT&G carriers did not own the newspapers, which remained the property of WT&G, nor could they sell the papers at a price higher than that established by WT&G. WT&G's customers paid WT&G directly and WT&G paid the carrier, after deducting all fees and redress charges, for all customers on the route, regardless of whether a particular customer had paid WT&G. The News carriers, on the other hand, purchased the papers from the publisher, had the right to set their own price per newspaper and, if the customer paid the publisher directly, the News refunded the carriers once the customer had paid the publisher.(11) Id. at 173. While the carriers in Athol Daily News could deliver the papers 'on foot, by bicycle, automobile, motorcycle, or otherwise,' id. at 178, WT&G required its carriers 'to have a reliable motor vehicle.'

"Additionally, WT&G required that it be notified in writing, in advance, of any delegated substitute carrier and the period of delegation, and prohibited the use of substitute carriers with delivery histories that it did not deem acceptable. WT&G also required its carriers to obtain approval before giving customers notices concerning future deliveries of its papers. No such restrictions on substitutes were imposed on the carriers in Athol Daily News. Rather, '[w]ithout approval from the News," the News carriers could "be assisted by anyone in the delivery of the newspapers.'"

Podcast: Ike's Impact on Texas Lawyers

When Hurricane Ike hit the Texas coast, lawyers were not spared. Many lawyers were hard hit in both their profesisonal and personal lives. On this week's episode of the legal-affairs podcast Lawyer2Lawyer, my cohost J. Craig Williams and I interview Bill Livesay, executive director of Andrews Kurth LLP in Houston, and Miriam Rozen, staff reporter for Texas Lawyer newspaper. They share their accounts of Hurricane Ike and discuss its impact on the broader legal community.

Listen to or download this week's program from this page.

Nantucket Ordered to Release Records

Acting on an appeal by the Inquirer and Mirror newspaper, the Massachusetts Division of Public Records has ordered Nantucket officials to release a confidential settlement agreement entered into with a former town employee, the Inquirer and Mirror reports today. The town had denied the newspaper's public records request, citing privacy concerns.

New Complaint Filed on Open Meeting Law

From today's Worcester Telegram & Gazette: "The Telegram & Gazette yesterday filed a violation of the Open Meeting Law complaint with Worcester District Attorney Joseph D. Early Jr.’s office regarding a Sept. 8 Water-Sewer Commission meeting that was not posted."

Northeastern Launches First Amendment Center

Northeastern University and the New England First Amendment Coalition have teamed up to launch the New England First Amendment Center, a project designed to focus public attention on access to public records and meetings. From Friday's announcement:

The First Amendment Center will continuously update its website with news about public access and First Amendment issues from across New England and around the nation. It will offer a wealth of information for citizens, journalists and public policy organizations that depend on open access to government. The Center will maintain a Hotline to advise citizens who are seeking public documents, and will conduct original research into issues of government transparency. The Center plans to host seminars on public records statutes and open meeting laws for journalists, municipal officials and lawmakers.

Coordinating the work of the center will be Walter V. Robinson, the former editor of the Boston Globe's Pulitzer Prize winning Spotlight investigative team. The center will also maintain a blog with contributions from Robinson; Dan Kennedy, assistant professor of journalism at Northeastern and author of the blog Media Nation; Doug Clifton, director of the New England First Amendment Coalition; and Tom Heslin, president of the coalition and interim executive editor at The Providence Journal.

Bloggers Offered Insurance, Legal Training

The Media Bloggers Association is spearheading a project to provide bloggers with first-of-its-kind liability insurance as well as free online training in media law. I have full details in a post today at Law.com's Legal Blog Watch.

Judges/Journalists Workshop Tomorrow

I will be speaking tomorrow at the New England regional Judges/Journalists Workshop in Portsmouth, N.H., sponsored by the National Center for Courts and Media.

Boston Flips Open Government on it Face

How does that saying go about the devil reading the Bible to his own ends? That was all I could think of as I read a report arguing that the First Amendment gives Boston city councilors the right to conduct the people's business behind closed doors. I first heard about it through a story in the Boston Herald (Secret society: City Council mulls end to open meetings) and then obtained a copy through a post to a listserv. Part of a longer report, the discussion about the open meeting law is titled Remedial response to adverse judicial decisions interpreting the state's Open Meeting Law (PDF). The most recent of those "adverse decisions" was McCrea v. Flaherty, in which the state Appeals Court ruled that the Boston City Council has repeatedly violated the open meeting law.

Thankfully, the absurdity of the report has already been pointed out by Dan Kennedy, Sam Bayard and the editorial page of the Boston Herald. I say "thankfully" because the report is so patently absurd that I would not know where to start. As someone who has spent much of the last four years working for reform of the Massachusetts open meeting laws, I can say that I agree with one conclusion of the report: the laws need reform. From there, we part company and head off in diametrically different directions.

The report is based on two premises that are not merely weak, but downright wrong. The first is that the open meeting law prohibits public officials from speaking "offline" -- from exchanging "their views, concerns, strategies and/or suggestions in private with one another." It does not. As the commentators cited above all correctly note, it prohibits private meetings only among a quorum of officials. The second premise is that this "prohibition" on private speech between public officials violates their free-speech rights. That is the most extreme contortion of the First Amendment I've ever heard or read.

The report goes on for some 30 pages before ending with three alternative recommendations for addressing this "problem":

• Option 1: Amend the open meeting law to say: "Nothing contained in this Act shall preclude an individual legislator from meeting with colleagues to build support for, gather consensus toward, or solicit cosigner for or against proposed legislation or a committee report, nor shall a gathering of members in private to discuss strategy or ascertain the level of support for an item before or coming before the body constitute a violation of this act. The term quorum shall not apply to such gatherings."

• Option 2: Delete from the law the phrase, "No quorum of a governmental body shall meet in private for the purpose of deciding on or deliberating toward a decision on any matter except as provided by this section," and then add language redefining the word "meeting" so that it would not apply to "deliberative exchanges, verbal or otherwise, between elected officials, singularly or collectively, seeking support for, building consensus toward or devising strategies to support or defeat legislation, or any other matter that may come before the body."

• The final recommendation -- one the report calls "the ideal arrangement" -- would be to amend the open meeting law to exempt from its coverage "local legislative bodies." In other words, just let the city council meet in private as much as it wants.
  

The Boston Herald's editorial is square on point when it refers to this report as arrogant and insulting. A Boston City Council committee was scheduled to discuss it yesterday. I have not heard what came out of that meeting. Let us hope that the councilors sent this report straight to the circular file. Yes, we need reform of the open meeting law in this state. But we need reform that strengthens and protects the public's right to know, not "reform" that protects politicians from public scrutiny.

Read the report and decide for yourself: remedialresponse.pdf.

Podcast: MBTA v. Anderson

It all started when three MIT students put together a presentation for their network security class at MIT about their findings regarding the security vulnerabilities of the Massachusetts Bay Transportation Authority's CharlieCard fare-pass system. Just as the students were about to present their findings at DEFCON, the MBTA went to federal court and won a gag order preventing them from speaking.

The case raises many issues of free speech and computer law. On this week's installment of our legal-affairs podcast Lawyer2Lawyer, we discuss these issues with our guests Tuna Chaterjee, a fellow at the Berkman Center for Internet Law and Society and a staff attorney with the Citizen Media Law Project, and Marc Randazza, First Amendment attorney with the Florida law Weston, Garrou, Walters & Mooney and author of the blog The Legal Satyricon.

Listen to our download the show from this page. As always, you can keep up to date with all Lawyer2Lawyer programs by subscribing via RSS or using iTunes.

Looking for Lawyer2Lawyer Listeners

Are you a listener to our legal-affairs podcast Lawyer2Lawyer? If so, we'd like to have you as a guest on a special program to mark our third anniversary later this month. We know you're out there -- our podcast last month had more than 40,000 downloads. For our anniversary show, we'd like to learn more about the people who listen, whatever their backgrounds and wherever in the world they reside. If you're interested, drop us a note at lawyer2lawyer-AT-legaltalknetwork.com. (Feel free to copy me at ambrogi-AT-gmail.com.)

Podcast: Legendary Lawyer Gerry Spence

Legendary trial lawyer Gerry Spence is our special guest this week on the legal-affairs podcast Lawyer2Lawyer. Spence came to national prominence for handling the Karen Silkwood case and was most recently in the news for winning an acquittal for Michigan lawyer Geoffrey Fieger. He has never lost a criminal case and has not lost a civil case since 1969. Recently, Spence launched his own blog. Join my cohost J. Craig Williams and me as we speak with Spence about his career, his cases and his blogging.

Listen to our download the show from this page. As always, you can keep up to date with all Lawyer2Lawyer programs by subscribing via RSS or using iTunes.