Saturday, March 04, 2006
Blogs don't break open-meeting laws, North Adams, Mass., city lawyer finds
PUBLISHED: Thurs., March 2, 2006
HEADLINE: Blogs don't break open meeting law
By Jennifer Huberdeau, Reporter
North Adams Transcript
NORTH ADAMS -- City councilors can post to Web logs and appear together on television programs, as long as their conversations do not "engage in deliberation," says City Solicitor John B. DeRosa. Responding to open meeting law questions posed by Councilor Clark H. Billlings at the Feb. 14 council meeting, DeRosa provided a written opinion filed by the council Tuesday night. "I think this is good advice," Councilor Alan L. Marden said. "I think this should be made available to all of the city boards and committees."
The council had also sent the questions on to the secretary of state's office, the attorney general's office and to District Attorney David F. Capeless. Both the state offices declined to weigh in on blogs, councilor-hosted television shows, e-mails and candidates' nights, referring the questions to the district attorney's office. Capeless also declined to give an opinion.
"The district attorney's participation in the enforcement of the open meeting law is limited to determining whether there has been a violation of the law in a particular circumstance and if so, to decide the appropriate action that is required to respond to the violation," Assistant District Attorney Joseph A. Pieropan wrote. Pieropan continued: "Accordingly, this office does not offer advice or opinions regarding the interpretation of the open meeting law or the application of it to theoretical situations. Regardless of how narrowly worded a hypothetical question may be, it is inevitable that any answers provided by the district attorney could be mistakenly and/or inaccurately applied to some variation of the hypothetical circumstance. The district attorney's ability to enforce a violation of the law in such a circumstance would be seriously compromised."
"I'm a little disappointed the district attorney could not go into the hypothetical. It leaves every board in Berkshire County out on a limb until his office makes a decision to prosecute," Billings said. However, he was pleased with DeRosa's reply.
DeRosa determined a councilor's posting to a Web log would not violate the law as long it was not being used as a "ruse to poll other members who participate or deliberate." "As with all discussion of public issues, the purpose, place and manner of communication will determine whether the open meeting law is violated. If a Web log is utilized by a quorum of councilors or a subcommittee to deliberate on a particular meeting, only then would it violate the open meeting law," he wrote.He said otherwise a councilor's posts on a blog are no different then a commentary in a newspaper or other media form. However, DeRosa said councilor-hosted television shows do "run the risk of violating open meeting requirements." He wrote that a quorum of either the council or a sub-committee needs to be careful not to deliberate any matter because it would "constitute a textbook violation."
"Although such discussions are not 'private,' and do not violate the law's design for public access, they are not public meetings with proper notice and an opportunity for the public to attend. ... Although a councilor is certainly free to attend a television, radio, or other media program and discuss public issues, the convening of multiple councilors at the instigation of an elected colleague poses a forum for polling members concerning their decisions on a particular matter and deliberating outside of a designated public meeting," he wrote. DeRosa also determined candidates' nights and forums are not subject to the open meeting law because their purpose is to allow "the public to make its decision as to which candidates are desirable for office." He also noted that e-mails between city councilors are part of the public record.
When thanked by fellow councilors for his "forward thinking," Billings said he did not ask the questions because he was thinking ahead, but "out of fear."
Questions about the open meeting law surfaced after Billings attended a workshop on the law at the Massachusetts Municipal Association's January convention. During the meeting, two town counsels disagreed over how the law effects things like blogs. He was worried councilors could be blindsided by a violation ruling, which could potentially carry a fine of $1,000 if proposed state legislation . holding government officials accountable for open meeting law violations . should pass.
Jennifer Huberdeau can be reached at email@example.com.
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