By Justin Silverman

It’s not the sexiest topic. It’s usually mentioned in the same breath as school boards and bureaucratic wrangling. It doesn’t elicit the same passion as other media concerns because its legal victories simply open the door to the municipal meetings and committee conversations few people would attend anyway.

But open government is important. In fact, the concept is much more than that — it’s fundamental. If the public cannot scrutinize the work of its elected leaders, there can be no accountability. Without accountability, our representatives can act without regard to us, their constituents. This is the absolute power referred to by Lord Acton when he declared that “power tends to corrupt and absolute power corrupts absolutely.”

Massachusetts this week missed an opportunity to prevent such clout from being created. Gov. Deval Patrick signed into law a bill that imposes a crushing legal burden on any party looking to prove an open meeting violation. And for those who do meet the burden, they’ll see only a paltry fine levied not upon individual politicians, but on the entire offending governmental agency which can then punt that fine to taxpayers. All of this is now law, ironically, because of the passage of a highly publicized ethics reform bill.

As attorney Bob Ambrogi explains, the new law includes several well-intended provisions:

  • It gives the attorney general authority to investigate and hold hearings on allegations of open meeting violations. If necessary, the attorney general can compel a public body to comply by filing an action in Superior Court.
  • It expands the definition of a public meeting to “an oral or written communication through any medium, including electronic mail.”
  • It creates an open meeting law advisory commission and requires annual reporting by the attorney general on open meeting law enforcement.

But, as Ambrogi continues, “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.”

Generally, anyone can attend a state, county, local or municipal government meeting during which policy is created. There are a few exceptions, such as when a municipality needs to discuss the reputation, character, physical condition or mental health of a public official. But the law makes clear that the exceptions are not to be used as a pretext to banning the public from an otherwise open meeting. These open meeting laws exist specifically to allow the public and the press to monitor the dealings of their elected officials.

But what happens when a government meeting is illegally closed to the public? The press cannot attend. News of the meeting cannot be reported. The public remains ignorant to the decisions of its leaders. There is no opportunity for public debate or protest. What then?

Under the new law, the attorney general or a private party must prove that the governmental body closed the meeting not only illegally, but intentionally. How does one prove the intent of a board? “This is an almost impossible hurdle to overcome,” Ambrogi writes. “Humans have intent, boards do not.” If that intent were to be proven, the board would then receive one of the softest fines imposed among all states with similar laws: $1,000 per meeting. This fine is “against the government body” and not an individual, so it will be paid by the government with, unbelievably, our tax dollars.

Most states impose a penalty personally against the government official who closed the meeting, not the group he or she represents. Florida, for example, fines the offending official up to $500 for illegally closing a meeting. It’s a route the Massachusetts legislature should have taken in addition to deleting the “intentional” requirement. Bottom line? If a public official wants to work without public scrutiny, he or she can do so. It’s not likely a violation will be proven and even if it is, the penalty is suffered collectively, softening the blow to a mere slap on the wrist.

Despite its good intentions and ethical mandates, this new law doesn’t provide any incentive to keep doors open to the public. If sunshine is truly the best disinfectant, I fear for what’s in this state’s forecast.