May 09, 2008 12:26 pm Robert J. Ambrogi
Massachusetts has one of the most toothless Open Meeting laws in the nation. Public officials who violate it face no consequences. A compromise bill recently reported out of committee on Beacon Hill is being touted as a major reform of the Open Meeting Law. But rather than add teeth, it takes from the law what little bite it had. The Open Meeting Law is a bulwark against government secrecy and back-room politics. It requires local, county and state boards and commissions to conduct their meetings in public, with limited exceptions. By requiring officials to meet in the open, the law enables the public to hold them accountable for their decisions. But unlike other laws on the books, this one carries no penalty for a violation. Imagine what the turnpike would be like if the law set speed limits, but imposed no fines for exceeding them. How many drivers would stick to the posted speed? That is the case with our Open Meeting Law. A public official who disregards it and meets behind closed doors faces no personal sanctions. This means that for an official faced with an unpopular or controversial issue, there is much to gain and nothing to lose by closing the door. Forty-two states authorize penalties for violations of their Open Meeting laws — either civil or criminal or both. Some states consider these laws so important that violators are subject to imprisonment. Our law does allow a court to impose a penalty on a board or commission that violates it. But who pays that penalty? Not the individual board members who decide to skirt the law. Instead, the taxpayers foot the bill for the board's unlawful acts. By all indications, Massachusetts was at long last on track to strengthen its Open Meeting Law. A bill introduced by Rep. Antonio F.D. Cabral, D-New Bedford, would have allowed courts to impose a modest penalty of up to $500 on government officials who flout the law. Cabral is an advocate of open government and co-chairs the Joint Committee on State Administration and Regulatory Oversight. Attorney General Martha Coakley also drafted a bill, never formally filed, that proposed a number of reforms to the Open Meeting Law. It, too, would have allowed a penalty for officials who violate the law. But recently Cabral's committee reported out a compromise bill (H 3171) that inexplicably eliminated the penalty. Containing elements of Cabral's original bill and of the attorney general's proposal, this compromise was touted as a major reform. No question, the bill would improve on our current law by consolidating enforcement within the attorney general's office, requiring broader education about the law's requirements and clarifying several provisions. But with regard to enforcement, the bill not only fails to strengthen the law, it actually weakens it. Not only does it fail to provide any penalty for officials who violate the law, but it also scales back the existing law to prohibit a penalty against the full board unless it can be proven that the violation was "intentional" — a difficult standard to meet. Opponents of penalties argue that they would discourage people from serving in public office. That is like saying that speeding fines discourage people from driving. Fines do not punish honest government officials; they punish only those who break the law. When public officials have legitimate reasons to meet in private, the Open Meeting Law protects them. For example, the law allows public officials to meet privately to discuss sensitive personnel matters or to conduct real-estate negotiations. But when public officials meet behind closed doors for reasons not allowed by law, their purpose is to hide from public view. They represent us. Their business is our business. If our elected and appointed officials choose to flout the law and shut out the public, they should not go unpunished. nnn Robert J. Ambrogi is a lawyer and executive director of the Massachusetts Newspaper Publishers Association.
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