Open meetings in government: groping toward transparency

Before the late 1950s, the Brookline, MA, Board of Selectmen would often meet behind closed doors during weekday afternoons, served refreshments on fine bone china and crystal. They were not an unusual board. In 1957, the Worcester Telegram reported on 27 communities in central Massachusetts and northern Connecticut, finding ten where all government meetings were closed to the public. [Harvard Law Review, 1962, p. 1199]

Open meeting traditions: Contrary to common impressions, open meetings of government bodies are relatively recent in the United States. Aside from New England town meetings, they are not longstanding traditions. Like the “voter rights” of referendum, initiative and recall, most come from twentieth-century reforms. Voter rights laws surged early in the century, while “open meeting” laws surged in mid-century.

Two Massachusetts laws, the Open Meeting Law and the Public Records Law, regulate public information from government organizations. Since the nineteenth century, newspapers had sought government meetings open to the press and the public, but the idea did not gain force until after World War II. Then, during the postwar era of the television and automobile, it engaged “modern thinking” of the day.

At the time, Massachusetts was not engulfed in strong controversy over corruption. At a mention of official corruption, people might have recalled a former mayor of Boston, James Michael Curley, by then out of office and in fading days. Scandals over MDC contracting, embezzlement at the Boston Common garage and bribery at the State House lay in the future. Strong controversies of the day involved the witch-hunt for Communists, the McCarthy scandal and rights to equal education–seen as a Southern issue, notably in Little Rock, AR.

Open meeting law continues to evolve. In Massachusetts, there have been several versions–the latest so far coming about 50 years after the original. Each law has been more complex. The Massachusetts laws applied to cities and towns in 1958, in 1978 and in 2009 amount to about two, five and eleven printed pages.

Original open meeting law: The Massachusetts Newspaper Information Service, an industry alliance, tried to get an open meeting law passed in 1957 but failed. The next year, two influential state senators, Silvio O. Conte, Republican of Pittsfield, and John E. Powers, Democrat of South Boston, took up the cause, sponsored a similar bill and got it through. [Legislative Research Council, 1959]

The original Massachusetts Open Meeting Law, enacted via Chapter 626 of the Acts of 1958, would be regarded as a weak law today. However, it was pathbreaking for its era. It provided separate requirements and sections of the General Laws for state, county and municipal arms of government. One key to getting the law passed can be found in a blanket exemption for the General Court–then and now hierarchical and secretive.

Massachusetts residents still have no rights to meeting notices, open meetings and meeting records from their state legislature. Those elements remain primary features of open meeting laws–now found in all states and the District of Columbia, although in widely varying forms. In 1958, the laws governing Massachusetts city, town and regional district organizations appeared in Chapter 39 of the General Laws, Sections 23A and 23B.

The original Massachusetts Open Meeting Law required only 24 hours notice of a meeting and counted all days of the week, including days when offices were closed and notices could not be read. It provided no penalty for violating the law, while Michigan now stipulates up to one year and Arkansas up to 30 days in jail. A citizen’s only recourse then was to pursue a lawsuit. The only remedies might be nullifications of particular actions and injunctions against future violations. Those were expensive remedies, rarely obtained.

The 1958 law required “accurate records” of meetings, but it did not say what information the records had to contain. Indeed, it did not define what a “meeting” meant, leaving a potential for boards to hold official meetings under the law but also to hold other, unofficial gatherings, not labeled as “meetings.” There was no provision to inform officials about the open meeting law, leaving ignorance of the law as a convenient excuse for violating it.

Nevertheless, in some respects the original Massachusetts Open Meeting Law proved potent and visionary. For example–unlike laws of many other states–advisory groups such as the Commission for the Disabled, the 2007 Override Study Committee and the Advisory Committee of town meeting have been subject to the law. Unlike Maryland’s law, for example, the 1958 Massachusetts law contained no catch-all exemptions, such as closed meetings “for compelling reasons.” [now repealed, Pupillo, pp. 1169, 1181] The 1958 law made “all meetings” subject to requirements. That was vague but potentially included informal meetings and official “events.”

Open meeting law changes: In the wake of corruption scandals–including favoritism in MDC contracting during the late 1950s, embezzlement at the Boston Common garage in the early 1960s and bribery at the State House in the 1960s and 1970s–among other measures, the General Court strengthened the Open Meeting Law. By 1978, many features of the current law were in place. The 1978 Open Meeting Law defined critical terms and narrowed the justifications for executive sessions.

A reform, by 1978, extended the required period of meeting notice to 48 hours, “including Saturdays but not Sundays and legal holidays.” Records of a meeting were required to include “the date, time, place, members present or absent and action taken”–although not topics discussed. New members of local boards were to be supplied with copies of the law. Members of the public were authorized to operate tape recorders. District attorneys were authorized to investigate complaints. Orders could be issued by judges invalidating actions taken at meetings violating the law and requiring future compliance.

The 1978 law excluded a “chance meeting or a social meeting” from coverage, provided “no final agreement is reached” on “official business.” That was eagerly sought by some of the more regressive boards. It opened a loophole at least as big as Maryland’s closed meetings “for compelling reasons.” Rogue boards could do all their reviews and wrangling at private “social” gatherings, merely formalizing actions in public.

Current open meeting law: The Open Meeting Law of 2009 provides several reforms. A notice for a meeting is now required to include an agenda, “topics that the chair reasonably anticipates will be discussed at the meeting.” A notice must be “visible to the public at all hours.” Members of the public are authorized to operate video as well as audio recorders and to “transmit [a] meeting through any medium.”

Minutes of a meeting must now include “a summary of the discussions on each subject.” Meeting records now include “documents and other exhibits.” Those could be charts, diagrams, drawings, sketches, renderings, maps, photographs, computer files, film-slide or computerized presentations, and video or sound recordings. Furthermore, “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.”

The required notice period now excludes Saturdays. The loophole for “social” and other private meetings in the 1978 open meeting law is much narrowed. They are now exempt from requirements only when “members do not deliberate,” defined in the law to include “oral or written communication through any medium, including electronic mail, between or among a quorum of a public body.” Distribution of documents is allowed, without opinions, for discussion at future meetings.

Enforcement of the Open Meeting Law has shifted from district attorneys to the state attorney general, who is required to operate a “division of open government” and to prepare an annual report on enforcement. The attorney general is also authorized to “promulgate rules and regulations,” to “interpret the open meeting law,” to “issue written letter rulings or advisory opinions,” to “create and distribute educational materials” and to “provide training to public bodies.”

The 2009 Open Meeting Law requires a complaint to be pressed with the body alleged to have violated the law “at least 30 days prior to the filing of a complaint with the attorney general.” There was formerly no such restriction on filing a complaint with a district attorney. The attorney general may also act independently, upon “reasonable cause to believe that [someone] has violated the open meeting law.” In cases responding to complaints, the attorney general can “impose a civil penalty” up to $1,000 for “each intentional violation.”

The Office of the Attorney General issued initial regulations, effective in July, 2010, and updated regulations, effective in September, 2012. The open meeting regulations resolve some ambiguities in the law. For an agenda required in a meeting notice, they require that the “list of topics shall have sufficient specificity to reasonably advise the public of the issues to be discussed at the meeting.”

The regulations take account of electronic communication. They provide for electronic posting of notices and govern remote participation at meetings, requiring roll-call votes. For a meeting notice to be valid, they say, “The date and time that the notice is posted shall be conspicuously recorded thereon or therewith.” The regulations also detail procedures for filing and resolving complaints, for performing investigations that are initiated by the attorney general and for issuing advisory opinions.

Missing reforms: The Massachusetts Open Meeting Law remains hobbled by complex and weak enforcement. Members of boards, committees, commissions and councils can and do violate the law often and with impunity. In the rare event of a “civil penalty,” the city, town or district that houses the faulty organization is on the hook, not the people who actually violated the law.

Antonio Cabral, a New Bedford state representative who formerly co-chaired the Joint Committee on State Administration and Regulatory Oversight and who was a chief author of the 2009 Open Meeting Law, proposed a small but useful reform, starting in 2006. H.2786 for the 2013-2014 session would have authorized fines of up to $200 for people who violate the law–still far short of sanctions in Michigan and Arkansas.

People who attend public meetings will often be mystified by documents exchanged among members of boards, committees, commissions and councils. There remains no requirement for those to be disclosed to the public at or in advance of a meeting. The Brookline, MA, Board of Selectmen does so voluntarily, through “packets” available on paper at meetings and in electronic form on the municipal Web site. Missing requirements for draft minutes and a missing deadline for minutes to be available remain as barriers to public information.

– Craig Bolon, Brookline, MA, August 10, 2014

Open meeting statutes: the press fights for the “right to know,” Harvard Law Review 75(6):1199-1221, April, 1962 (unsigned)

Teresa Dale Pupillo, The changing weather forecast: government in the sunshine in the 1990s–an analysis of state sunshine laws, Washington University Law Review 71(4):1165-1187, 1993

Rebecca Fater, Legislation would overhaul state’s Open Meeting Law, Lowell (MA) Sun, March 14, 2006

Suzanne J. Piotrowski and Erin Borry, An analytic framework for open meetings and transparency, Public Administration and Management 15(1):138-176, 2010

Massachusetts Open Meeting Law of 1958, as applied to cities and towns, in General Laws Chapter 39, Sections 23A and 23B

Massachusetts Open Meeting Law of 1978, as applied to cities and towns, in General Laws Chapter 39, Sections 23A through 23C

Massachusetts Open Meeting Law of 2009, consolidated, in General Laws Chapter 30A, Sections 18 through 25

Massachusetts Office of the Attorney General, Open Meetings, 940 CMR 29 regulations, current

Massachusetts General Court, Fourth annual report of the Legislative Research Council and Legislative Research Bureau, Report 1599, January, 1959

Massachusetts General Court, Public officers of the Commonwealth of Massachusetts, 1957-1958

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