atLaw
Christopher M. Morrison
617 226-3465
Associate
Areas of Concentration
Business Litigation
Office
Among the most famous of Justice Louis D. Brandeis’s proclamations is his firm belief that where governmental decision-making is concerned, “Sunshine is said to be the best of disinfectants.” Brandeis could not have predicted how his words would be interpreted more than 90 years later, but he would be surprised at some of the new ways government officials have found to secrete their deliberations. The expansion of local governments and technological innovations have provided unprecedented access to the machinations of lawmakers. But those same improvements have also created new opportunities for undisclosed deliberations that deprive the people of their right to a free and open government.
The Massachusetts Open Meeting Law, M.G.L.c. 39, § 23B, attempts to facilitate confidence in government by ensuring that the deliberations of governmental bodies are conducted publicly, or as Justice Brandeis might have said, in the light of day. Abuses of the Open Meeting Law can only be discovered after the fact, and the remedies available are often unsatisfying. For these reasons, it is important that Open Meeting Law jurisprudence keeps pace with current events. In two respects, the pervasiveness of electronic communications and the increased delegation of authority to subcommittees, local law-makers are unwittingly violating the spirit, if not the express terms, of the Open Meeting Law.
The Open Meeting Law has two principal requirements: (1) “All meetings of a govern-mental body shall be open to the public and any person shall be permitted to attend any meeting except as otherwise provided by this section,” and (2) “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.” The law expressly enumerates as exceptions to these fundamental rules the circumstances in which a governmental body may meet in executive session and exclude the public. Finally, the law imposes specific notification and record keeping obligations on governmental bodies to ensure that members of the public can find out about meetings and can learn what transpired even if they are unable to attend.
Public officials in Massachusetts are generally familiar with these precepts, but those who have not taken the time to read the law carefully have created a netherworld in which critical decisions are made without public input or scrutiny. Perhaps no other innovation has created more opportunities to thwart the Open Meeting Law than the advent of e-mail and its prevailing use by elected officials to discuss matters coming before them.
It is obvious that a conference call involving a majority of members of a board is a breach of the Open Meeting Law, and it is equally obvious that an informational e-mail to board members informing them of the agenda or time for an upcoming meeting (assuming the materials mailed are publicly available at the meeting) is a permissible communication. When members (inadvertently or otherwise) hit the “reply all” button in response to such an e-mail, and begin to express an opinion or to otherwise “deliberate” in an e-mail, they engage in little more than a high-tech conference call that excludes the public and violates the Open Meeting Law.
The Attorney General’s Office issued this advice in its 2002 Open Meeting Law Guide-lines: “Like private conversations held in person or over the telephone, e-mail conversations among a quorum of members of a governmental body that relate to public business violate the Open Meeting Law, as the public is deprived of the opportunity to attend and monitor the e-mail ‘meeting.’ Thus it is a violation to e-mail to a quorum messages that can be considered invitations to reply in any medium, and would amount to deliberation on business that must occur only at proper meetings.”
A more difficult case is an e-mail exchange between less than a quorum of a committee. Representatives at all levels of government regularly discuss matters coming before them, in one-on-one conversations and small groups comprising less than a quorum. In such conversations, members express opinions and lobby one another for support, but when these conversations involve less than a quorum of members, they tend to focus the open debate, but not eliminate it entirely. These conversations are a natural and important (if not unavoidable) part of the political process.
The problem arises when an e-mail message or exchange is forwarded to another member or group of members, or when a member sends an e-mail to a quorum of the body soliciting support for particular position. At least one district attorney’s office has said that as soon as the e-mail reaches a quorum of the body, the entire exchange is subject to the Open Meeting Law. This interpretation makes perfect sense, particularly since courts have held that serial face-to-face meetings among members can violate the Open Meeting Law. Beyond the technical violation, soliciting votes via e-mail compromises the integrity of the entire political process by enabling not only debates but, with a sufficient amount of agreement among members, final decisions to be made outside of public scrutiny.
The problem is more than hypothetical. In Cambridge, City Councilor Tim Toomey recently requested an opinion from the City Solicitor as to whether it was a violation of the Open Meeting Law for another Councilor to send an e-mail asking all the other councilors to join him as co-sponsors to various policy proposals. While it makes sense for Toomey to seek a professional opinion, the answer is not seriously in doubt. If the e-mail copied all members at once, it was a form of deliberation in a nonpublic setting, and unquestionably violated the Open Meeting Law. If, however, the member sent an identical e-mail to his peers separately (so that no one member could “reply all” and engage in a full-blown debate), the e-mail was likely permissible, but only up until the point where his colleagues forwarded their responses to a quorum of members. In its initial form, a single e-mail is no different than if the councilor had simply picked up the phone and called each of his colleagues with the same request: “Will you back my proposal?” Unlike e-mail, however, phone calls are not nearly as susceptible of exact repetition and, more importantly, are not easily shared with others, surreptitiously or otherwise.
The real challenge is what to do about such electronic “meetings,” since the public rarely, if ever, learns of their existence. For all intents and purposes, members must police themselves, and should take extraordinary care when e-mailing other members. Members concerned about violations should, at a mini-mum, make hard copies of the e-mails available at the next public meeting and should take appropriate steps to curtail such secretive discussions. Although such actions may initially engender anger by members who believed their e-mails to be confidential (particularly when they were unaware the person with whom they were corresponding might forward an e-mail to others), only by making these exchanges public can government officials fulfill their obligation to make certain that all deliberations take place in the light of day. Counsel to governmental bodies, as well as the lawyers who serve on those bodies or practice before them, have a more prophylactic role to play by periodically reminding members, in unambiguous terms, of their Open Meeting Law obligations.
Although not as omnipresent as e-mail, there is another growing threat to the Open Meeting Law: the increasing delegation of important committee functions to subcommittees. Governmental bodies create subcommittees for a variety of reasons: to serve an initial screening function for senior administrators, to conduct in-depth studies of complex issues that may not easily be digested by the body as a whole, or to act as a liaison to certain community groups. Frequently, the recommendations of such subcommittees, which are presumed by members of the larger body to be the product of considerable deliberation, are simply moved and accepted. Both as a formal and practical matter, such a delegation shields critical discussions from public view and in many cases violates the Open Meeting Law.
Subcommittee meetings violate the Open Meeting Law when members mistakenly believe that a subcommittee that is comprised of less than a quorum of the members of the larger body is not covered by the law. Because of that belief, subcommittee meetings frequently are not posted and often are conducted without accurate minutes being kept or reported; at most, the larger body receives the recommendation of the subcommittee, which may or not be submitted in writing. The Open Meeting Law, however, expressly applies to subcommittees whenever the committee appointing the subcommittee is itself subject to the law. Mass. Gen. Laws ch. 39, § 23A (definition of governmental body includes “every board, commission, committee or subcommittee”); e.g., Gersteinv. Superintendent Search Screening Comm.,405 Mass. 465(1989) (superintendent search screening committee established by a school committee was a “governmental body”); Nigro v. Conservation Comm’n of Canton, 17Mass.App.Ct. 433 (1984) (subcommittee of conservation commission).
Because they are subject to the Open Meeting Law, subcommittee meetings must be posted, and accurate records of what transpires there must be kept and reported to the larger body. As a practical matter, however, even proper notification and record-keeping do not provide a sufficient quantum of “sun-shine” to permeate subcommittee deliberations to make them susceptible of public disclosure. Today, local board or committee meetings are often broadcast on local cable stations, and are frequently covered by a single reporter from the local paper, or by a stringer from one of the larger publications. In these ways, meetings of local boards are more public than ever, with principally positive consequences (television cameras can have the negative consequence of unwittingly encouraging elected officials to engage in grand oratory rather than to simply debate the business at hand). Subcommittee meetings, however, are generally shielded from such coverage, permitting their deliberations and, more importantly, their recommendations, to take place in relative secrecy. Unlike meetings of the larger body, subcommittee meetings are often held in smaller locations and at times that vary according to the convenience of the subcommittee members. And because the public is frequently unaware of the prevalence of subcommittee meetings, the district attorneys empowered to enforce the Open Meeting Law are often unable to intercede. At a mini-mum, counsel to these boards have an obligation to clarify their responsibility to make sub-committee meetings public, and members of the larger body must insist on receiving (preferably in advance of any meeting at which a subcommittee’s recommendation is acted on) information that goes beyond the subcommittee’s recommendation and discloses any underlying concerns or debate that may inform the process.
Justice Brandeis recognized that the populace cannot have confidence in a government that conducts its business in secret. Elected and appointed officials, therefore, must take affirmative steps to ensure that their deliberations are appropriately available to public scrutiny by judicious use of e-mail for informational purposes only, by prudent delegation of only limited matters to subcommittees, and by ensuring that subcommittee meetings are posted, public, and recorded to he same extent as meetings of the whole. Unless such deliberations are exposed to the sunlight of public disclosure, governmental bodies risk losing the confidence of the people they serve.
