Monday, September 27, 2010

NEW OPEN MEETING LAW COMMENTS

You may be aware that the state has adopted a new Open Meetings Law that went into effect on July 1, 2010. Among the major changes in the new law are the following: (1) agendas (or items the Chairman reasonably believes will be discussed) must be included in the posting of a meeting whereas previously only the date, time and place was required; (2) such notices must still be posted 48 hours in advance, but now Saturdays are excluded from that time period (Sundays had already been excluded); (3) the notices of all such meetings in a town must be accessible by the public on a 24 hour, 7 day basis; and (4) meeting minutes must now include a list of all documents and other exhibits discussed at the meeting and these must be available for the public view in the future.

There are also some clarifications and definitions. I think the new rules are a good step forward in assuring openness and accountability in government.

My primary problem with the new rules relates to its treatment of technology. The rules remain rooted in centuries-old technology. The basis of it remains posting notices at Town Hall and publishing notices in the newspaper. These may have been effective when people made frequent trips to the town square and when reading a daily newspaper was a common component of life, but in era of sprawling suburbs, plummeting newspaper circulation and an Internet economy, these methods no longer reach most people.

I am not advocating for abandoning these practices, but I do suggest that inadvertently missing a deadline for these should not be a fatal flaw in the process if it can be demonstrated that other means of communication have been used advantageously. In an era in which there are now more households with a cell phone and no land line than there are with a land line and no cell phone, I would be willing to bet that more people could be reached via the Internet than through Town Hall postings and newspaper ads.

While the new law expands the use of technology slightly, its primary focus seems to be to restrict use of technology rather than to embrace it a means of EXPANDING access to government. For example, the guidelines clarify that email can be used for administrative matters (scheduling meetings, distributing information, etc.) but not for substantive discussion. This is a good thing as far as it goes. Private emails should not be used to discuss public business.

However, why not use technology in an open manner to allow greater and easier participation? That is, a public forum could be established that would be viewable by the public in which members of a public body could ask questions or make comments that could be responded to by other members, the applicant or other Town officials. As long as those participating are identified and the forum is viewable by the public, why not allow it?

In the case of public hearings, why not let members of the public participate in the forum? Applicants could post the details of their project including plans, reports, etc. Comments and reports by consultants and Town officials could also be posted. Members of the public body as well as members of the public would have easy access to all information about the project. A requirement would be that all persons participating must be identified and registered with, at a minimum, name, residential address and email address (and, as applicable, whether they are a member of the public body, the applicant’s team, a town official, abutter, etc.). Any comments so posted would become part of the public record of the hearing. This would allow residents to participate who are not able to attend the physical hearing due to illness, mobility issues or scheduling conflicts. In addition, such a system could facilitate and streamline the physical hearing.

The new law does provide for remote participation by public body members. However, this provision is not yet in effect as the Attorney General’s office is seeking public comment as a first step to establishing rules about this practice. One example of how this could be utilized is the case of a public hearing that has been closed and a board is deliberating a decision. If a member is out of town on the day of the vote, but can certify that he or she has reviewed a copy of the draft decision, why not allow that member to participate remotely via phone, video conference, or Internet. When most Boards meet only once or twice per month, it could avoid unnecessary delays.

In summary, the new Open Meeting Law is good step forward in assuring transparency and openness in government. However, the job is not finished and more needs to be done to bring government into the 21st Century.