Wishes He Was in Ipse Dixit

St. Paddy's Day parade has revisited Boston. The City-Council commissioned report on open meetings and Council powers also tries to turn the First Amendment upside down and sideways.

In 1995, in Hurley, the South Boston Allied War Veterans suit lost at every level up to the U.S. Supreme Court. There it won the albeit limited right to exclude gay and lesbian Irish-Americans from marching in a arguably private parade. While some like to portray the decision as a slap at "special rights" for people they don't like, it was not so simple. The unanimous Court instead weighed the free speech of the GLBT marchers-to-be against whether the parade itself was a form of public accommodation, subject to equal-rights regulations and laws. The case pivoted on whether the old men's being forced to look skyward and let the gay Irish march (as they do in all major Irish cities in these parades) was an unfair burden on the vets' rights. Had the parade been flat out government supported instead of just receiving police and other services, the decision would have been the opposite.

Now we see some of the same reasoning and at least one of the same bit players in the current open-meeting fight. Council President Maureen Feeney, with considerable support, authorized hanger-on, career aide in their parlance, Paul J. Walkowski, to report on open meetings requirements.

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Flashback 1: I recall a few decades ago being in a Deep South legislature when the junior high and high-school civics classes visited. I overheard a pair of students asking the teacher where the debate was. Several fairly important bills came up for "discussion" but really didn't. The speaker or clerk would introduce the bill, followed quickly by voice vote, usually unanimous.

I had been to the BBQs, shared the bourbon and eaten the pig off the spit. At those and other living room or restaurant meetings were where the big decisions were made and the deals cut. By the time the grease was off the corners of the lawmakers' mouths, there was nothing to talk about.

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Walkowski is pretty camera and publicity shy. He wrote a drug/crime novel The Will of God (remaindered and used via Amazon for 36¢) 20 years ago. More pertinent, he was co-author 12 years ago with one of the Hurley attorneys, William M. Connolly of From Trial Court to the United States Supreme Court on the case (remaindered and used via Amazon for $1.42). His other book was Affirmative Action: Affirmative Discrimination nine years ago solo (remaindered and used via Amazon for $5.73). The latter is a 148-page argument that the mandated hiring of minority police officers and fire fighters after many decades of overt discrimination was itself discrimination.

His other theses become important in light of the current Council report. Although he is neither a legal expert nor an attorney, he has old-boy cred with the Council. He was an aide to long-term arch-conservative Councillor James M. (Jim) Kelly. Moreover, his attempted recasting of laws and regulations governing housing, employment, education, employment and of course freedom of speech pretty much clarified what the aim of the report would be.

In fact, his treatment of the second half of the report, Remedial response to adverse judicial decisions interpreting the state's Open Meeting Law, is alternately shocking and laughable. He claims all manner of court-imposed restrictions that violate law, without citation or explanation. Moreover, his beefiest conclusion is that if the legally abused Council had to obey open meeting laws, our city government wouldn't work and they would not have Constitutional rights other citizens do.

We can leave aside that our sunshine laws are much looser than many states'. Some of our Councillors simply don't want to be bothered announcing meetings or having discussions of important issues in public. Yet hidden decision making belongs to an earlier and dirtier era.

Alas for previous Council President Michael Flaherty, he was the chief loser in a suit alleging long-term repeated violations of meetings laws. Particularly, commonwealth Chapter 39, Sections 23A and 23B, are sparse and offer municipal officials a lot of leeway, but Flaherty and many of the rest of Council thumbed their noses anyway. Not so fast, boys and girls. In 2006, the Superior Court found 11 violations, finding the Council $1,000 for each and requiring compliance with the laws.

In what appeared in what can charitably be called stubborn and ill-advised, Flaherty led an attempt to appeal. The grounds were a very silly technicality. The laws say the Councillors can meet informally if fewer than a quorum is together. Flaherty's argument was that they moved members through a meeting room so that no more than five of the 13 were there at a time, thus meeting the meeting-law requirement.

A three-judge appeals panel would have none of that. They called the ruse what it was and noted that there was no public notice for this charade that really was a Council meeting. Their decision included the conclusion that "...it is manifestly pointless to conduct a meeting to which the law requires public access if no member of the public is aware that the meeting is taking place."

Apparently the Council as a whole has not gotten it yet. We may yet see more quixotic foolishness and this current report seems part of this effort. Do not suppose the report is either scholarship, or even after 13 months is an exhaustive or accurate study. Specifically:

• It does not describe the background of abuses that has led nationwide to state-by-state open-meetings laws.
• It does not include or try to refute the two courts' decisions rejecting the Council's actions and reasoning.
• It does is not any form of legal, legislative or governmental scholarship.
• It does not provide any meaningful developments beyond the 19th century
  

A few days ago, Dan Kennedy at Media Nation did a nice overview of the absurdity of the report. In addition, Sam Bayard at the Citizen Media Law Project blog has more with nits, grits and legal links. The Mass Bar Association has a detailed but clear page of what's allowed, mandated and forbidden in meeting laws here.

Each source, as well as the news stories and court decisions, put the lie to Flaherty and the report's chief contentions — that the sunshine laws forbid ordinary conversation between two or three Councillors. Flaherty has called this "chilling." Walkowski questions the constitutionality of open-meeting legislation, although he is oddly careful not to ask for their repeal. He does say that they rob Council members of the freedom of speech and association afforded other citizens.

Also, with circular reasoning he repeatedly attacks unspecified court rulings, which he writes expand the law beyond its intent. These apparently are the loses in 2006 and 2008 at Superior and Appeals Court levels. The report goes so far as to state:

The broad sweep of the state's Open Meeting Law makes no distinctions between informal deliberations and discussions held between committee members, as part of the ongoing legislative process to advance legislation, and committee meetings help in secret to debate legislation and conduct a vote outside the public view.

He holds that this stifles advancement of the governmental process. "A bill germinates and grows in support through speech and the building of alliances to see it through to completion."

Unfortunately for the old-line Council members, both the statutes and the related court decisions make it plain that Council member have lots of latitude. Specifically, Councillors are free to meet in twos or groups — even building alliances and asking for support for specific measures. What they can't do includes:

• Have an executive session closed to the public without first being in session as a body, going into executive session, returning to the open meeting, and when the matters are decided, announcing them.
• Discuss and deliberate decisions with a quorum present unless the meeting has been announced to the public.

These restrictions are not all onerous and place us in the middle or below in demands made by states' sunshine laws. Yet, as summarized on the Media Law site, the report to Boston's Council includes recommendations to alter the laws in one of three ways:

1. Amend the open meeting law to say: "Nothing contained in this Act shall preclude an individual legislator from meeting with colleagues to build support for, gather consensus toward, or solicit cosigner for or against proposed legislation or a committee report, nor shall a gathering of members in private to discuss strategy or ascertain the level of support for an item before or coming before the body constitute a violation of this act. The term quorum shall not apply to such gatherings."
2. Delete from the law the phrase, "No quorum of a governmental body shall meet in private for the purpose of deciding on or deliberating toward a decision on any matter except as provided by this section," and then add language redefining the word "meeting" so that it would not apply to "deliberative exchanges, verbal or otherwise, between elected officials, singularly or collectively, seeking support for, building consensus toward or devising strategies to support or defeat legislation, or any other matter that may come before the body."
3. The final recommendation -- one the report calls "the ideal arrangement" -- would be to amend the open meeting law to exempt from its coverage "local legislative bodies." In other words, just let the city council meet in private as much as it wants.

Refer to the PDF file of the report section on meeting for the exact wording. The above extractions do them more than justice.

This is surely a great example of what isn't broken and doesn't need fixing. Instead, some of our Councillors are broken, or at least they have forgotten what they learned in civics class. We have some common sense laws here, these specifically developed in response to legislators, councilors and others hiding their business from the public. There was no restraint on possible shenanigans with money or conflicts of interest or other backroom deals without the laws.

Chapter 39, Sections 23A and 23B pretty much say to discuss public business in public.

If you decided to slog into the report, don't pass up the self-serving material at the beginning. our author lets us know:

After thirteen months of intensive and detailed investigation, as well as drawing on my 23-years of service as legislative coordinator for former city councilor and seven-term President of this body, James M. Kelly, and after detailed discussions with attorneys thoroughly familiar in the areas of First Amendment and Agency Law, I am confident that the conclusions of this Report are viable and its recommendations are worth serious consideration.

In other words, he has no credentials for this job and we have no reason to accept anything he writes, except to trust him. Ipse dixit.

He cites a case from 1803 (Coffin v. Coffin) in some detail because thinks it reinforces Flaherty's claims of chilling intrusion into polity and politics. Reading the case findings does not give the interpretation that Walkowski offers. Then again, he is neither lawyer nor legal expert. He writes mostly heavily biased political treatises. He might have been on sounder ground to write of the two failed court actions, the lost suit and lost appeal, attempting to fault multiple judges who have no patience with torturing a plain law for the public good for other purposes.

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Flashback 2: Another trust-me/I'm-fair-and-wise expert was a famous joint surgeon I saw when my right shoulder fully dislocated (down by my ribs) repeatedly. I had helped a friend move and as I spoke with her and another woman, my arm went south. They got me an appointment with this noted guy.

When I described the past and most recent dislocations, he interrupted me to inform me that I was totally wrong, that I could not have lifted the arm and pushed it up to where it was get sucked back into the socket. To prove his point, he opened a huge text from his bookcase and showed me a passage saying it has to be done by doctors, ideally with orthopedic training. I had already told him that the pain was so severe that I would have done anything to stop it, certainly avoiding ambulances, ER waiting and hours of anguish.

Then I looked at the cover of the text. That doctor was the author. He cited himself in circular proof. When the surgeon heard that the women who had witnessed my dislocation and my re-socketing the arm were a doctor and a researcher with a Ph.D. in medicine, he said he'd think about it.

Likewise, the report to the Boston City Council is fair and reasonable because the author says it is. Trust him; he talked to some unidentified lawyers.

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There are many ways to look at the manufactured problem with the Council and open meetings. I'm a sincere man from the land of the maple trees, I go with the straight conclusions. Citizen watchdogs called the Council on violating sunshine laws, but even after losing at two levels of court, they try to get someone to give them a reason to continue fighting (on our dime).

They seem to be spending tens of thousands and maybe going to a couple of hundred of thousands in legal fees, court costs, and payment for this report by a self-described Special Projects Assistant to the President and Committee on Rules and Administration of the Boston City Council. I think it's well past time that Flaherty and the kids at City Hall put a halt to their aristocratic fantasies and games.

Open meetings are the law of the commonwealth, even for them.

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Tags: massmarrier, Massachusetts, Boston, City Council, open meetings, Sunshine laws, Michael Flaherty, Paul Walkowski