Friday, February 16, 2007

Getting to Yes Without a Meeting

In a second court battle over the open meeting law, the winner was the Boston City Council. But the ruling issued Monday by Suffolk Superior Court Judge Thomas E. Connolly has made for some head-scratching.

As in a previous court battle, the Council was being sued by three citizen activists—Kathleen Devine, Shirley Kressel, and Kevin McCrea (who also ran for Council two years ago). This time the dispute was about how the Council approved a package of pay raises. What the Council passed as an ordinance on May 3 of 2006 was an amended version of recommendations by the Compensation Advisory Board.

When legislative bodies vote on raises, especially if this includes raises for themselves, there’s potential for squirming. Last year, that was even more the case, though not necessarily due to the size of the compensation. With little controversy, the Council had adopted a pay raise package four years earlier—based on recommendations from the same board and the same chairman, Lawrence S. DiCara. A former City Councilor, DiCara has done legal work for clients with projects needing city approval since at least the 1980’s. What made his legal work more difficult to ignore this time around was that the recommendations last year came out shortly after he represented a project that needed approval directly from the City Council.

If it had not been for that legal work, the Council’s Government Operations Committee probably would have held a public hearing on the compensation package on April 21. But the committee chair at the time, Maureen Feeney, said questions from a reporter about possible conflict of interest led her to call off the hearing on short notice. Once the she was assured there was no legal obstacle to moving ahead, Feeney said she set about rescheduling.

But the cancellation led to a deadline problem. Unless the Council acted sooner, the board’s recommendations would take effect automatically on May 8, and what ended up being scheduled wasn't a hearing. To have the Council act on an amended version of the recommendations, Feeney arranged to have them brought to the floor at the last regular Council meeting before the deadline, on May 3.

What’s beyond question is that the Council approved the pay raise ordinance in a public meeting with advance public notice. Judge Connolly wrote this would have been the remedy had there been any lack of openness beforehand. As he noted, you can see the action on the ordinance on the internet—all 6 minutes and 28 seconds of it. And, according to a statement from Feeney, the judge’s ruling validates the Council’s “good conduct” and “hard work.”

What’s still in question is whether the Council gave the public sufficient opportunity to speak. In parts of his ruling, the judge refers to the meeting as a “hearing,” and at one point he wrote the public was properly noticed and given opportunity to speak. Now, public hearings and meetings might be almost the same thing, but there is one important difference for the City Council: a hearing allows the general public to give testimony, while a meeting, like the one held May 3, allows only for debate by councilors themselves.

During that brief debate, Councilor Chuck Turner brought up some objections to the ordinance. One of them was about the lack of a public hearing, something that would normally have taken place before an ordinance comes up for a vote. “At least,” said Turner, “the public should have a right to comment and give their perspective.” No matter how many councilors might say that was their intention all along, the judge notes that on committee matters public hearings are not required.

But how can a committee reporting on an ordinance “favorably” take that collective action without a public session and still avoid violating the open meeting law? First, by avoiding the physical reality of a meeting—that is, percolating enough “concurrence” through staff members so the chair could act for the committee as a courtesy. And, second, by avoiding any communication about the merits of the ordinance. In her proposed rule changes, Feeney, as Council President, wants to make this a standard: that concurrence should mean agreeing only that an item should come up for vote, and not necessarily support for the item itself. This also means an item can emerge only when the door to open comment by the general public has already closed—or that an item can sink in committee without a trace (though not necessarily due to a lack of merit).

So was it acceptable for the process of concurrence on the pay raise ordinance to be off the radar screen partly because there would later be a public vote and debate by the councilors themselves? Or was it because there would also be an opportunity for the general public to speak? Because the ruling almost interchangeably uses the words hearing and meeting, there is some confusion on this point.

Another view is that advance notice of a Council meeting would be enough to trigger some form of public comment, even if not necessarily audible in the Iannella Chamber. After all, legislators of all kinds have been strongly swayed by telephone calls, emails, or a chance encounter in the hallway. As tedious and unpersuasive as testimony in the chamber may be, it is different from other ways of sending a message. One difference is that it can be heard in real time by Council members and other members of the public—and later on archived video. Testimony in this setting also has a leveling effect that’s visible. The chamber, as it were, is a mouthpiece that conspicuously transforms the individual into the citizen. Whether that feels empowering or inhibiting, the setting might be thought of as a clearly marked zone of equality, something that influences legislative process even by its potential. Even if not always required by law, this is a dynamic that can also serve the Council members when they ask for accountability from other officials or private citizens. But, no matter how much councilors might want to apply that dynamic to thorny matters such as pay raises, the court decision lays down the road map for another way out.