Using new information technology and old tactics, some public officials in Massachusetts still are keeping taxpayers in the dark.
Testing the limits of the state Open Meeting Law has practically been a hobby for public officials since the right-to-know legislation was rolled out three decades ago.
Until January, though, nobody ever tried to stretch it 1,450 miles, from Holyoke to the gulf coast of Florida.
To accommodate retired Holyoke Community College President David M. Bartley and other vacationing members of the city's Economic Development and Industrial Corp. board, the organization agreed to let them participate in meetings by long-distance telephone call.
Very long distance, it turns out.
Bartley was vacationing in Naples, Fla.. Two other members were bound for equally balmy spots. After getting wind of the so-called "winter quorum" rule, the Holyoke Law Department scotched it.
The episode illustrated the novel, but not always legal, ways that public officials try to shrink or expand the Open Meeting Law to match their needs.
Adopted in a wave of Watergate scandal-inspired reforms in 1975, the Open Meeting Law remains a legal battlefield in the fight over government openness - with fresh skirmishes breaking out seemingly every week.
Increasingly, the popularity of new information technology, from e-mails and Blackberries to teleconferencing gear, is adding a new dimension to the issue by making it easier for government officials to make decisions without public knowledge.
"Where there's a will, there's a way," said Pamela J. Wilmot, executive director of Common Cause, a government watchdog group.
"In government, knowledge is power, and, unfortunately, many people want to horde it," she said.
The rate of Open Meeting Law violations is difficult to gauge. No central registry of complaints is kept and district attorneys, who are charged with enforcement, do not keep uniform records from year to year.
But media and public interest groups contend that open meeting abuses - both intentional and inadvertent - still are undermining accountability in state and local government.
Compared to many state laws, the Open Meeting Law is a model of simplicity: With a few narrowly defined exceptions, all government bodies are required to meet in open session, to post advance notice of all meetings and to keep detailed records of important discussions and votes for public review.
Pamphlets, on-line tutorials and training seminars are regularly provided for newly elected or appointed public officials.
Even so, a flurry of recent cases shows how government officials use a combination of new technology and old tactics to keep taxpayers in the dark.
In Springfield, the state-run Finance Control Board voted behind closed doors last year to give Schools Superintendent Joseph P. Burke a $13,000 raise and one-year contract extension.
After an appeal by The Republican, Hampden District Attorney William M. Bennett ruled that the vote should have been taken in public. He ordered the board to avoid any further violations.
In Boston, the City Council was caught skirting the law 11 times during a two-year period. In a 20-page ruling last year, Suffolk Superior Court Judge Nancy Staffier Holtz slapped the council with an $11,000 fine after concluding that the violations were intentional.
And in Amherst, the Select Board suffered two rebukes from Northwestern District Attorney Elizabeth D. Scheibel for illegally using e-mails to conduct business - once in 2005 to discuss the July 4 parade, and again in 2006 to discuss the Amherst Survival Center.
Confusion and uncertainty account for many open meeting violations, especially when it comes to posting notice of subcommittee meetings or releasing minutes of past executive sessions.
Expedience also can be a factor.
Without the services of Bartley and other vacationing members, Holyoke's Economic Development and Industrial Corp. board would be hard-pressed to get a quorum for winter meetings, much less conduct official business.
To Bartley, the teleconferencing proposal was faithful to the spirit of the Open Meeting Law - which was passed during his last year as speaker of the Massachusetts House.
Long used in the private sector, teleconferencing would "certainly help with the practicality of getting busy people to serve on boards," he said.
As an added benefit, Bartley said, the technology "would help bring us into the 21st century."
The reasoning for other apparent violations of the public's right-to-know is often harder to discern.
With two lawyers on its payroll and another, Springfield Mayor Charles V. Ryan, on its advisory board, the Pioneer Valley Transit Authority still balked at releasing names of semifinalists for the vacant executive director's job in August, as the law requires.
Three weeks later, Holyoke Mayor Michael J. Sullivan, a PVTA board member and non-lawyer, thwarted a planned illegal executive session to discuss the backgrounds of the two finalists.
Sullivan, joined by Northampton Mayor Mary Clare Higgins, said his opposition stemmed from simply knowing the law and obeying it.
"Public business is supposed to be conducted in public," said Wilmot, the Common Cause director. "Not everyone has gotten that message by now."
The drum beat of violations underscores a key flaw in the Open Meeting Law: Aside from embarrassment and bureaucratic annoyance, violators face no real punishment, said Robert J. Ambrogi, director of the Massachusetts Newspaper Publishers Association, a newspaper lobbying group.
Pending in the Legislature is a proposal to impose fines on public officials who knowingly break the law.
An even tougher proposal that would have imposed criminal sentences for violators failed to win traction at the Statehouse last year.
The current bill would authorizes fines of up to $1,000 against any state or municipal board flouting the law and up to $500 against individual members participating in illegal meetings.
State Rep. Stephen Kulik, D-Worthington; John W. Scibak, D-South Hadley and Peter V. Kocot, D-Northampton have signed on as sponsors for the bill.
The proposal also would clarify how e-mail and teleconferencing can be used by officials, according to Ambrogi.
The idea is to limit, not outlaw, e-mail as an information tool, he said.
Currently, Massachusetts is one of 10 states that refuses to punish individuals violating their freedom of information-open meeting laws.
To bolster the argument for tougher penalties, Open Meeting Law advocates can only rely on anecdotal evidence.
The dearth of statistics and other documentation, Ambrogi said, makes dramatizing the issue more difficult.
A spokesman the Hampden County District Attorney's office said it does not keep figures on complaints from one year to another.
The Northwestern District Attorney's office, which covers Hampshire and Franklin counties, handled 19 cases last year, up from 13 in 2005, according to Assistant District Attorney Cynthia M. Pepyne.
Driving the increase, Pepyne said, is growing reliance on e-mail by public officials to conduct government business, and the legal dilemmas that ensue.
Until the late 1990s, e-mail rarely was used as a communication tool in government. By last year, e-mails were among the most common complaints, Pepyne said.
"It's still a learning experience for some officials," she said.
In Amherst, a town with a reputation for demanding government accountability, especially at the federal level, the lapses by its officials are especially galling, according to Larry J. Kelley, a Town Meeting member and health club owner.
Rather than wait for statewide reform, Kelley is sponsoring a proposal at the spring Amherst Town Meeting that would impose fines of between $50 and $500 on local Open Meeting Law violators.
"The way to get people to pay attention is to put some teeth in the law. If the state isn't going to do it, the town should," he said.
Meanwhile, Common Cause of Massachusetts has started a Web site to heighten public awareness of Sunshine Law violations.
Wilmot, director of the nonprofit group, said all cases will be collected in an annual report. By request, the group will also pass along complaints to the appropriate law enforcement agency, Wilmot said.
"The more attention we can get on this, the better," Wilmot said.
In Boston, the reform legislation filed by the newspaper publishers association should go before a public hearing by May, Ambrogi said.
By approving the bill, the Legislature would be modernizing a law that only has been tinkered with over its 30-year history.
"Things have changed. Nobody was even using computers when the law was passed," Amborgi said.
"It used to be secret meetings in smoky rooms. Now it's government officials sending e-mails or chains of e-mails to each other," he said.
Law Provisions
The proposed new penalties for violations of the Open Meeting Law include:
- Fines of $500 against individual government officials who participate in illegal meetings
- Fines of up to $1,000 against any state or municipal board
- Citizens filing lawsuits may recover legal fees if they prevail.
Note: The current law provides neither financial nor criminal penalties for public officials violating the law; municipal boards can be fined up to $1,000; no penalties for state boards.
Open meeting law
If you suspect a public agency has violated the state's Open Meeting Law, you can do the following:
- Call your district attorney's office; Hampden County District Attorney's Office, (413) 747-1000, or the Northwestern district Attorney's office for Hampshire and Franklin counties, (413) 586-9225, (413) 774-3186).
- Common cause of Massachusetts, a nonprofit government watch'dog group, also urges anyone with complaints to visit its Web site at ccma@commoncause.org (For the first time, the group is compiling a list of violations for 2007 and, if requested, will pass on complaints to the appropriate law enforcement agency.
Behind closed doors
The state Open Meeting Law requires all state and local government bodies to post advance notice of meetings; to hold all sessions in public; and to keep detailed records for later public inspection. Here are the exceptions which allow for executive sessions:
- To consider the reputation, character or health of a person
- To discuss disciplining or dismissing a public official or employee
- To discuss strategy for collective bargaining or litigation
- To discuss deployment of security personnel or devices
- To review charges of criminal misconduct
- To conduct preliminary interviews and screenings for job applicants
- To meet with mediators in labor or legal disputes; and to comply with any overriding law barring public discussions of confidential matters.