In recent weeks all of the newly elected public officials, including the incoming Area Councillors from Waban, Upper Falls, Newton Highlands and Newtonville attended a mandatory training class on the state Open Meeting Law. Briefly, the law requires that all substantial discussions by elected boards take place in open meetings that the public can attend rather than in the proverbial “smoke filled back rooms” of yesteryear.
For many of the new elected officials, the detailed constraints and requirements of the Open Meeting Law were an unexpected revelation. Here’s a post (from another thread) from Waban Area Councillor Sallee Lipschutz about the topic.
@Ted: I would like to address an issue with you about which, even after training, I am a novice: The Open Meeting Law. If someone wants to start another thread, fine. But this thread raised the issue for me. Here’s my quandary. I have been led to believe that, as an Area Councilor, I (or you, as Alderman) am “forbidden” from discussing with a quorum of my peers any issue on which our government body might take action, unless at a properly advertised “open meeting” of that body.
Yesterday, when Jerry posted the article <about the Public Nuisance Ordinance>, I began writing a response that raised questions without stating my position on the matter (Who knows when Waban’s Area Council might decide to take a position on the proposed ordinance!). I felt restricted from expressing my strong opinions on the ordinance and so erased my words and didn’t comment.
Today I see you, as an Alderman who will be voting on this ordinance, have already said how you will vote so that the other 23 Alderman (if they read this blog) know your thoughts outside of an “Open Meeting” on the issue. While that is very liberating to me (I didn’t like keeping my thoughts to myself yesterday), it is also confusing. Wouldn’t making your position known on the blogosphere be considered “deliberating”, since it might influence the other Aldermen outside of the Aldermanic Chambers? Would it only be a worry if 13 of the 24 Aldermen (if a majority were needed to pass the ordinance), stated their opinions “out loud” and outside City Hall? Will you please weigh in on how you determine how much of our First Amendment rights as citizens first, and, as government players, second, are constrained by the Open Meeting Law.
@Sallee – I’m no expert on the law, but I have to believe that voicing your opinion in a public forum like a blog would be in keeping with both the spirit and the letter of the Open Meeting Law.
Not so sure, Jerry. “Deliberations” have to be done in a properly noticed (advertised) to the public meeting. I cannot have a discussion on an issue of interest with more than 3 other Councilors out of 9 Area Councilors, since it takes a majority of 5 (per our Area Council By-Laws)to reach a vote on an action. I don’t like this constraint, I personally find it difficult to abide, and I am now acutely aware of what I view as the implications of the law on anything I might say in a public forum. I feel as if my right to freely express my opinion on matters online is, at the very least, abridged. I hope my interpretation of this law is flawed and that I can loosen my tongue and/or keyboard once again! (No, don’t even think that I might wish to lick the keyboard! I saw that thought flash through your minds!)
I do not know how the Attorney General would rule in a particular case, however, I have reviewed the AG’s Open Meeting Law Guidelines, OML Regulations, and OML determinations published on the AG’s website. There is no specific guidance with respect to whether statements or discussions on an online forum such as a blog might constitute “deliberations” for purpose of the Open Meeting Law. The Amherst-Pelham School Committee reportedly sought a ruling from the Attorney General’s office, but I have not been able to find any such ruling on the AG’s website.
In my view, and that of the ACLU-MA, one must begin with the premise that blogging is constitutionally protected political speech deserving the highest level of legal protection under the US Constitution and Massachusetts Declaration of Rights. Moreover, although the OML is designed to prevent secrecy in the deliberation of issues on which public policies are based, it is not meant to prevent or restrict public officials from communicating with constituents and others prior to or after a meeting.
In addition, as the Attorney General acknowledges, “Courts have held that the OML applies when members of a public body communicate in a manner that seeks to evade the application of the law.” So, private emails among a quorum of members a public body expressing an opinion on public business could be a violation of the OML. By contrast, and given the constitutional protections afforded political speech, expressing an opinion in an online forum that is accessible to the public, such as a blog, would not seem to violate the purpose and intent of the Open Meeting Law. Similarly, it would be a perverse result if the Attorney General found a violation of the OML everytime the Newton TAB asked aldermen about their positions on an upcoming vote and reported on them.
If anyone has better information on this topic, please feel free to let me know.
Thanks, Ted, that makes me feel a lot better! Now I can tell everyone how I feel about the proposed nuisance ordinance (Refer to thread titled “Public Nuisance Ordinance – Be careful what you wish for”).
Blog away Sallee!
In the very unlikely event that THM’s analysis is wrong, do you really think the AG’s office has the time or inclination to go after a member of a”Village Council”, even in the face of a complaint? I don’t. But if they did, I’m sure Ted will represent you pro-bono right up to the SC. In their face! Protect your freedom of speech!
Terry, if they want me to stop blogging, they will have to pry my smartphone from my cold dead hands.
Precisely!
Sorry…my “precisely” was in answer to Terry, but Ted sneaked his blog in first!
Ted,
Would that be the same smartphone that was in the middle of a call to report my Leaf Blower?
Lots of frozen hands around here!
Terry, are you clearing the snow with the leaf blowers again?
Amazing inventions. Many uses.
I also comb my hair with them.
Terry having seen your hair… let’s just say I think a leaf blower is overkill.
so cruel…
THM- according to an Amherst-Pelham SC member I was coincidentally speaking to today, the understanding that SC members have is that they could participate in blogs as long as they were not having a conversation with other SC members.
Still not so clear.
IMHO the Open Meeting Law is a dog’s dinner. There are any number of exemptions for executive officers and the state legislature, but members of municipal councils and boards have to live in fear that if they cross an imaginary line they will be in violation. And when the AG’s office is asked for guidance, there is no publicly available opinion. The law is supposed to promote transparency. What happened to that?
@Ted – “dog’s dinner”. Great phrase … and a new one to me.
@Jerry, my Irish-American grandmother had a lot of colorful sayings (some of which are scatological in nature), which I still use. A “dog’s dinner” is synonymous with a “dog’s breakfast,” and means a complete mess. Perhaps a better description for the OML would be a “minefield,” which contains many hidden traps for the unwary.
For anyone who is interested, the Attorney General’s office has published all of its Open Meeting Law determinations since 2010 online. It was brought to my attention today that, although the AG still has not weighed in on participation of members of a public body on blogs, there are a couple of determinations concerning the use of social media, such as Facebook. If you want to read them, click on the link above, and search for decisions containing the word “Facebook.” They address the point Terry made about deliberations with a quorum of the public body.
In one case, the AG found no OML violation because less than a quorum participated in an online discussion on a board member’s Facebook page. In the other, the AG found no violation where the other board members did not have access to the Facebook page that the board member made a comment on. But the AG did find that an email from the board member to the other board members discussing a matter within the board’s jurisdiction was an OML violation.
I don’t think the public meeting question necessarily needs a ruling about websites. Can an elected official that knows he will rule on minimum wages, public health, or divorce rights (as examples) hold a press conference, write an opinion piece, speak to a reporter or even talk out loud in a restaurant without looking to see if other elected officials might hear him? Yes.
@Hoss. You have hit the nail on the head. My big frustration with this is that something like an open meeting law which should be so simple, reasonable and logical suddenly becomes mired in absurd complexity, uncertainty and prospective actions that could well be counterproductive to the whole concept of openness. I say counterproductive because I can see that following some interpretations of the open meeting law I’ve read here could actually make the process more opaque and less transparent.
I’m a member of the Newton Highlands Neighborhood Area Council. I can see several ways that I could get away with influencing other members of the Council on a particular issue by just talking almost casually with them on a one to one basis. Wouldn’t it be better in terms of openness for me or any other member of the Council to shout their position from the rafters both to inform the public and to let them in on the action.
I saw this at work with the State’s campaign finance laws, as well. In 2004 Tim Snyder and I were asked to be “unity co-chairpersons” of the Newton Kerry Edwards Campaign because he had been a Dennis Kucinich supporter and I went all out for Howard Dean. We held a bake sale at the Highlands Village Day in June to raise funds for the local campaign. Several supporters baked all kinds of cookies and cakes for the event that raised several hundred dollars as I recall. We were then asked to say who had donated all the stuff to make this windfall possible. We really didn’t know because there were so many people with so many different cookies, cakes and other goodies and we didn’t know who gave what or what it sold for individually. We were then asked to determine how much the cookie dough and cake mix cost. I can’t even remember how we responded to that, but we’ve since referred to that event as the “War of the Cookie Dough Angels.”
I think the snow’s finally getting to me because I couldn’t imagine writing something like this in spring, summer or fall. Time to go South.
BOB BURKE – Now I feel like Red Buttons because i’ve voted since 1978 and never got a cookie.
@Hoss. It helps to know people in high places.