Journalism professor Dan Kennedy has a great post today at Media Nation about the Boston City Council's review of an 80-page report that it commissioned urging the state legislature to exempt it from the Massachusetts open meetings laws. He takes issue with statements made by councilors complaining that the law is "confusing" and creates a "chilling effect." Remarkably, the report contends that the open meetings laws violate the councilors' free speech rights, according to the Boston Herald. I'd like to see the councilors make that claim to a judge with a straight face. I heartily agree with Kennedy's biting analysis:
Councilor Michael Flaherty is quoted as saying that the law creates a "chilling effect," claiming, "You can't even have a conversation with colleagues in the hallway or in a session." That's an interesting observation. The law says that a quorum — that is, a majority — of members cannot discuss official business outside the context of a legal, publicly announced meeting.
If Flaherty had said, You can't even have a conversation in the hallway with six or more colleagues about city business, that would be accurate. It would also underscore the absurdity of his complaint.
The Massachusetts open meetings laws, the main provisions of which are located at Mass Gen. Laws. ch. 39, §§ 17, 23A, 23B, 23C and Mass Gen. Laws ch. 30A, §§ 11A, 11A 1/2, 11B, 11C, only apply to gatherings of a quorum of a governmental body's members where those attending members discuss or consider official business within the scope of their official authority. A "quorum" means a simple majority of members of the governmental body. Because the Boston City Council has 13 members, a quorum is 7 councilors. The open meetings laws do not apply to a chance meeting or a social gathering at which matters relating to official business are discussed so long as no final agreement is reached. See Commonwealth of Massachusetts Office of the Attorney General, Open Meeting Law Guidelines, at 8 (2008).
This is not rocket science. It's hard to see how these councilors have gotten so confused that they're afraid of having conversations in the hallway. In recent litigation, the City Council seemed to have a pretty good grasp on the mathematical details, when it argued to the Appeals Court of Massachusetts that it could legitimately hold closed meetings by rotating councilors through a room to allow deliberation while ensuring that a majority of councilors were never present at the same time. The Massachusetts appeals court rejected "this strained interpretation of statutory language, asserted for the sole purpose of defeating the fundamental purpose of the law." McCrea v. Flaherty, 885 N.E.2d 836, 845 (Mass. App. Ct. 2008).
One has to wonder why the Council is so frightened of government transparency. I hope the Mayor, whose approval is required in order for the Council to seek an exemption from the state legislature, will see through this baseless effort to weasel out of the straightforward requirements of the law.
For additional information on the Massachusetts open meetings laws, see the Open Meetings Laws in Massachusetts section of our legal guide.