Your humble correspondent took a few days off before the Memorial Day weekend. So we're diverting from our usual TGIF this week, turning the space over for a guest column by John Marion, executive director of Common Cause of Rhode Island, on the highly relevant theme of government transparency and open meetings. Take it away, John ....
Common Cause is a “good government” group that works on improving public policy as it relates to campaign finance, open government, ethics, and a number of other areas. Also, we’re sometimes the equivalent of a reference librarian, because I get a lot of questions about these different topics, particularly open government. I’ve prepared a short Q&A on the Open Meetings Act (also know by its initials “OMA”) to help answer some of the most frequently asked. This is not meant to be comprehensive (see the Attorney General’s guide to OMA and its sibling APRA or the guide from the Rhode Island League of Cities and Towns), nor am I providing legal advice (I’m not a lawyer!).
1. What is the Open Meetings Act?
The Open Meetings Act is a law designed to ensure that citizens have access to the decision making process of public bodies such as school committees, town councils and the like. It’s one of the pillars of open government, along with the Access to Public Records Act. OMA is considered a “Sunshine” law, named after the famous phrase, “Sunlight is said to be the best of disinfectants” written by U.S. Supreme Court Justice Louis Brandeis. Interestingly, Brandeis wasn’t writing about government transparency, but rather corporate transparency; a topic in the news now in Rhode Island.
2. Who is subject to the OMA?
All “public bodies” are subject to the OMA. The law defines a public body as including; “any department, agency, commission, committee, board, council, bureau, or authority or any subdivision thereof of state or municipal government or any library that funded at least twenty-five percent (25%) of its operational budget in the prior budget year with public funds.” So pretty much all government. It’s important to note that this applies when there is a quorum of members present. When I was a Hoosier, the Indiana University Trustees circumvented their open meetings law (called the Open Doors Law) by gathering as subsets; going so far as two have meetings in separate rooms of a house with the university president going back and forth. It became known as the Bob Knight rule because the trustees used it to skirt public knowledge that they were firing the basketball coach.
3. What does the Open Meetings Act do for you?
If you’re interested in how a public body is making a decision, then the OMA is your friend. That’s because it requires that discussions and votes (with certain exceptions) must be held in front of the public. Furthermore, the body must give 48 hours notice of their meetings by posting an agenda at their web site and on the web site of the Secretary of State. If you’re interested in knowing about every time a certain body (say the school board for your city or town) has a meeting, you can sign up for handy email alerts every time they post an agenda. Just click the little orange email button on the Secretary of State’s open meetings web site.
Of course, sometimes public bodies don’t follow the rules. In those instances, members of the press and public can file complaints with the Attorney General’s Open Government Division or hire a lawyer (not me!) and take the body to Superior Court. If found guilty of violating the OMA, the actions the body took (such as a vote) can be voided and/or they can be fined. Of course, the fine is really just one government body paying into the state treasury.
Ethan Shorey, a reporter for the Valley Breeze, found out that maybe the OMA should instead be called the Open Doors Law, like it is in Indiana. It happened one night when Shorey tried to attend a Pawtucket School Committee hearing. The AG’s finding in his complaint reads like scene out of slapstick comedy with a dogged reporter trying to get buzzed into a meeting behind held behind a locked door.
4. Why isn’t the General Assembly subject to the Open Meetings Act?
What, you say, the most important public body in the state -- the General Assembly -- isn’t subject to the Open Meetings Act? Yes, that’s correct. Back in the 1990s, then-Secretary of State James Langevin raised a ruckus about closed meetings of the legislature. The legislative leadership was so mad they threatened to physically remove his office from the building (sorry, the old Projo links to that one don’t work). Along with Brown Professor Ross Cheit, Langevin issued a scathing report titled “Access Denied: Chaos, Confusion, and Closed Doors.“ The report even dragged the newly initiated president of Brown University into the controversy. Interestingly, it was a public records request by the AP that would end his career as president of The Ohio State University.
Then-Attorney General Sheldon Whitehouse settled the matter when he provided an advisory opinion to legislative leaders, informing them that they are not subject to the OMA. His reasoning was threefold:
- Separation of Powers: The executive branch (in the form of the Attorney General, who enforces the OMA) cannot police the legislative branch.
- Rule-making authority: The Rhode Island Constitution gives each chamber of the Assembly the ability to make their own rules. It also gives them the ability to suspend those rules!
- No binding future legislatures: There is a principle that no legislature can bind the actions of a future legislature. Since the OMA is a statute passed by the General Assembly, no future General Assembly can be bound by the statute. This has come up in the litigation over the 2011 pension changes.
Rhode Island is not alone in having struggled with this issue. In 2011, the Wisconsin Supreme Court decided on a narrow vote that their legislature wasn’t in violation of the open meetings law when it stripped collective bargaining rights for public employees. And when I say they struggled with the issue, I mean it literally. One justice of that court accused another of putting her in a choke hold during deliberations.
5. Why aren’t political party caucuses subject to the Open Meetings Act?
In the chaotic March weekend after the FBI raid on the office of then-Speaker Gordon Fox, Democratic members of the General Assembly met in a caucus. Although we don’t know exactly how many members showed up, if there was a quorum, why wouldn’t that violate the OMA? The OMA specifically carves out from the definition of a public body, “any political party, organization, or unit thereof meeting or convening; provided, however, that no such meeting shall be used to circumvent the requirements of this chapter.” You can read about how the Attorney General ruled on a 2006 complaint alleging the Democrats on the Providence City Council circumvented the OMA through a caucus; it’s quite a humorous scene. But as you’ll read in the AG’s ruling, there is an admonition that the caucus shouldn’t be used to circumvent the OMA as the second clause of the carve-out warns.
So there you have it, a totally incomplete explanation of the Rhode Island Open Meetings Act. In the quest to keep citizens informed about their government, it’s a valuable tool.