In Idaho, A Tougher Open Meeting Law

A revised open meeting law took effect yesterday in Idaho. Notably, the bill toughens the penalties imposed on public officials who violate the law. Under the new law:

• A board member who conducts or participates in an unlawful meeting is subject to a civil penalty of $50.
• A board member who knowingly violates the law is subject to a civil penalty of $500.
• A board member who violates the law twice within a year is subject to a civil penalty of $500.
  

Here is the text of the bill which was signed into law April 13 and took effect July 1. Here is an Associated Press report.

Two Opinion Pieces on Open Meeting 'Deform'

As I wrote here Friday, the ethics bill passed this week by the Massachusetts legislature had the ironic effect of weakening the open meeting law. Two opinion pieces published over the weekend make this point in no uncertain terms:

• Hired guns shoot up Open Meeting law, an op-ed by Larry McDermott, publisher of The Republican.

• Our opinion: Open meeting loopholes tarnish solid reform effort, an editorial in The Patriot Ledger.

Ethics Bill Weakens Open Meeting Law

The Massachusetts legislature yesterday unanimously approved a major ethics bill and Gov. Deval Patrick last night indicated he would sign it. Few members of the public realize that contained within this bill is a major overhaul of the state's open meeting law. Ironically, for a bill that was intended to shore up ethics and accountability in government, the open meeting portions actually make the open meeting law harder to enforce in one material way.

Before I explain, let me first say that several aspects of this bill represent a step forward. Most significantly, it will consolidate enforcement of the open meeting law within the Attorney General's Office, creating a new Division of Open Government. Under prior law, enforcement of local cases was handled by the county district attorney and of state cases by the AG. This resulted in a lack of uniformity in interpretation and application of the law.

Under this new law, the AG will have the authority to investigate and hold hearings on complaints alleging open meeting violations. If the AG finds a violation, she will have the authority to issue various remedial orders. If the public body fails to comply with the AG's order, the AG can file an action in Superior Court to compel compliance. The law preserves the right of private citizens to bring their own actions for enforcement, independent of the AG's office.

Other commendable features of this law include:

• Express clarification that a meeting can take place through "an oral or written communication through any medium, including electronic mail."
  
• Express clarification that "preliminary screening" for purposes of filling a job vacancy ends once the public body is provided with "a list of those applicants qualified for further consideration," thereby requiring all subsequent interviews to be conducted in public.
  
• Creation of a five-member open meeting law advisory commission, composed of the House and Senate chairs of the Joint Committee on State Administration and Regulatory Oversight, a designee of the Massachusetts Newspaper Publishers Association, a designee of the Massachusetts Municipal Association, and a designee of the AG.
  
• Stronger mandates for education of public officials about the open meeting law.
• Annual reporting by the AG on open meeting law enforcement.

So what's not to like? The problem with this bill is that the legislature failed to address the most significant shortcoming of the law, which is its lack of teeth. In fact, on this issue, the bill actually makes the law even weaker.

The MNPA -- for which I serve as executive director -- has pushed for some six years now to add two components to the open meeting law -- penalties on public officials who violate the law and attorneys' fees awards for private citizens who bring lawsuits to enforce the law. As the law now stands, a public official who violates the law faces zero consequences. The body that violates the law can be subject to a fine, but not the individual members. This means that government officials can brazenly violate the law and let the taxpayers pay any penalty that results.

Forty-two states authorize some form of penalty - either civil or criminal or both -- for violations of the open meeting law. In 38 states, the civil fine or criminal penalty is imposed directly against the government official who violates the law. In 21 states, it is actually considered a crime for a public official to violate the law.

This new bill creates no new penalties and weakens the one penalty that the law formerly had. The former law authorized a fine of up to $1,000 against the board or commission that violated the law (but not its members). The new bill changes that to require proof that the board's violation was "intentional." This is an almost impossible hurdle to overcome. Humans have intent, boards do not. How does one prove the intent of a board? To make matters worse, most open meeting violations occur in secret. How is evidence of intent to be found in secret, closed-door proceedings?

The bill also leaves private citizens with no right to collect costs and attorneys' fees for actions to enforce the law. Forty-two states authorize plaintiffs in these cases to recover their costs and 40 authorize them to recover attorneys' fees.

Ironically, even as the full legislature was voting to pass this bill yesterday, the Joint Committee on State Administration and Regulatory Oversight was holding a public hearing on open meeting and public records reform. Passage of this bill yesterday need not be the end of the discussion about open meeting reform. The Joint Committee can recommend further modifications and fine-tuning of the bill. At a minimum, the committee should recommend elimination of the word "intentional" from the bill. Those familiar with the history understand that this word came into an earlier version of this bill as a typo and should have quickly come out. Perhaps the committee will go even further and recommend that, once and for all, the open meeting law be given some actual teeth.

Governor Pushes for Secrecy in Public Contracts

An op-ed I wrote appeared in several Massachusetts newspapers this weekend. Here it is in The Eagle-Tribune: Governor pushes for veil of secrecy in government contracts.

Reasons to Get into Journalism

The blog GoodMorningGloucester has a video interview with Richard Gaines, a reporter for the Gloucester Daily Times and formerly for the Boston Phoenix. I love what he says about why to go into journalism:

"It's a calling. If you enjoy fighting with bullies, if you enjoy fighting with hypocrites, if you enjoy finding people who have inspiring stories to tell. ... It's taking the moving picture of life and putting it into little segments that people can read. "

This is the second part of the interview. Here is part one.

L2L: College Athletes vs. EA Sports and NCAA

This week on the legal-affairs podcast Lawyer2Lawyer, we consider the class-action lawsuit filed by college football and basketball players against EA Sports and the NCAA. The lawsuit claims that electronic games unlawfully appropriate the likenesses of these student athletes.

Our guests to discuss this issue are Peter Goplerud, dean and professor of law at Florida Coastal School of Law, who is widely recognized for his expertise in the field of sports law, and Clay Travis, an attorney and sports writer who formerly was editor at Deadspin.com and now writes for FanHouse.com.

You can listen to the show at the Legal Talk Network or download the MP3 file.

Gov’s ad plan riles newspaper group

Coverage of this week's legislative hearing on public notices: Gov’s ad plan riles newspaper group. See also this editorial from Gatehouse News: Don't reduce access to state contract information.

1st Circuit Denies Review of Libel Ruling

The 1st U.S. Circuit Court of Appeals today turned down a petition asking the full circuit to rehear en banc the controversial decision Noonan v. Staples, in which a three-judge panel ruled that truth is not an absolute defense to libel. My earlier post about that ruling is here.

Following is the text of today's order. A note on the order said that Circuit Chief Judge Sandra Lynch recused herself from the case and did not participate in the vote.

Staples's petition for rehearing en banc, construed also as a petition for panel rehearing, challenges the constitutionality of the Massachusetts General Laws ch. 231, § 92, as construed in the panel's rehearing opinion. Since its initial brief, Staples has argued under the premise that the term "actual malice" in § 92 means "malevolent intent." Yet, Staples did not then challenge the constitutionality of such a construction. Thus, the rehearing opinion found that it need not consider the issue. See Rehearing Opinion at p. 17, n.7.

Staples now contends that it raised the issue in its initial brief. But that brief simply acknowledged that the statute was not constitutional as applied to a matter of public concern. Staples did not timely argue that the present matter was a matter of public concern or that the statute was unconstitutional as applied to a matter of private concern. That Staples did not timely raise the issue is also made clear by the fact that it has not, until now, filed the notice required for a challenge to the constitutionality of a state statute. See Fed. R. App. P. 44(b). The issue is waived, and the fact that the issue raises constitutional concerns does not save the waiver. See, e.g., Rosado-Quiñones v. Toledo, 528 F.3d 1, 6 (1st Cir. 2008) (deeming waived the "question of law about whether there is added First Amendment protection for public employees' filing of lawsuits against their employers on matters in which the public has no interest"); Pérez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 n.7 (1st Cir. 2008); see also Ins. Corp. of Ir. v. Compagnie Des Bauxites De Guinee, 456 U.S. 694, 703 (1982) ("Because the requirement of personal jurisdiction represents first of all an individual [due process] right, it can, like other such rights, be waived.").

Further, Staples has not shown that the constitutional issue is so clear that the panel should have acted sua sponte to strike down a state statute, without the required notice to the state attorney general. Staples still does not cite a case for the proposition that the First Amendment does not permit liability for true statements concerning matters of private concern. The Massachusetts Supreme Judicial Court ("SJC") case relied upon by Staples did not hold that truth is an absolute defense in private concern cases, but rather that a private figure may recover for a negligently made defamatory falsehood in a case of public concern. Stone v. Essex County Newspapers, Inc., 330 N.E.2d 161, 164 (Mass. 1975). And the Supreme Court has stated that as to matters of private concern, the First Amendment does "not necessarily force any change in at least some of the features of the common-law landscape." Phila. Newspapers v. Hepps, 475 U.S. 767, 775 (1986); see also Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749, 761 (1985) ("In light of the reduced constitutional value of speech involving no matters of public concern, we hold that the state interest adequately supports awards of presumed and punitive damages -- even absent a showing of 'actual malice.'"). In fact, were the issue as clear-cut as Staples suggests, the SJC would not likely have limited its own invalidation of § 92 to matters of public concern. Shaari v. Harvard Student Agencies, 691 N.E.2d 925, 929 (Mass. 1998) ("To apply this statute to the defendants' truthful defamatory statement concerning a matter of public concern, even if the statement is malicious, violates the First Amendment." (emphasis added)). Thus, whether § 92 is a "feature[] of the common-law landscape" left unchanged for matters of private concern is an issue on which we now take no position.

Nor it is appropriate to now certify the question to the SJC. We have answered the question of state law regarding the proper interpretation of the statute, and Staples has not challenged that matter on rehearing. The question of the constitutionality of that state law under the First Amendment is a federal question, which we could answer without certification. Though Staples suggests that § 92 may violate the Massachusetts Constitution, it presents no argumentation whatsoever relating specifically to that contention. Further, Staples should not be allowed to escape the consequences of waiver through certification.

The petition for rehearing having been denied by the panel of judges who decided the case, and the petition for rehearing en banc having been submitted to the active judges of this court and a majority of the judges not having voted that the case be heard en banc, it is ordered that the petition for rehearing and the petition for rehearing en banc be denied. The alternative request for certification to the SJC is also denied.