TRANSPARENCY TUESDAY: If the public meeting seems staged, reporters should ask for tickets to the "rehearsal"



When I was a reporter in Florida covering that state's (now-defunct) Board of Regents, a remarkable statistical oddity dawned on me. The board was a geographically, professionally and ethnically diverse cross-section of Florida -- and yet, when it came time to make any decision of consequence, the vote was always the same: 13-0.

After witnessing another 13-0 selection of a university president, I asked the Regents chairman during a public session: "How is this possible?"

The response was the longest and most painful pause in the history of interviewing. Because the real answer -- "We work everything out in advance and we just hold these meetings for show, dummy" -- would have been illegal.

At Michigan State University, trustees are being asked to defend their long-established but legally dubious practice of holding pre-meeting "workshops" behind closed doors at which members admit that university business is discussed.

The practice is under particular scrutiny because of the suspicious lack of public discussion surrounding a major decision at the June 17 trustees meeting to increase tuition by 6.9 percent. You'd think a decision of that magnitude would be occasion for some debate -- especially since, as The State News reported, the decision was a deviation from the school's previously approved master plan.

But nobody said anything before the vote. At least, not in public.

Defending the pre-meeting meetings, one trustee said the practice "allows for a frank conversation and a dialogue." Another said that the closed-door sessions are essential so that board members "don't have to defend statements" publicly.

Well, yes. That's kind of the whole point. If powerful government appointees are saying things that the public would find indefensible, then maybe they should stop saying them.

A variation of this excuse is that government officials won't have candid discussions, or float creative or risky ideas, if their comments are at risk of being broadcast to the world. That mentality encapsulates everything that is wrong with politics: Because officials don't trust the public to process the truth in a mature manner, or because admitting the truth would result in short-term political disadvantage, then the public is given false information. Or none.

State laws vary in their granular details, but for the most part, they all say that boards such as the MSU Board of Trustees must allow the public into their meetings if a voting majority (or quorum) of the members is present and if official agency business is being discussed. (Some go even further and say that any meeting between two or more members, even if less than a voting majority, must be open.)

The Michigan law is typical. It defines an open meeting as any gathering of a quorum of a government body "for the purpose of deliberating toward or rendering a decision on a public policy." In other words, the law clearly applies even to "deliberations" and not just decision-making sessions. (What would be excluded is, for instance, a purely social dinner.)

As in many states, the Michigan attorney general regularly is asked for interpretative guidance on what the Open Meetings Act means. Pertinent to the MSU situation, the attorney general has said that a meeting must be open to the public, and adequate advance notice given, "even if there is no intention that the deliberations shall lead to the rendering of a decision on that occasion." In other words, it is no excuse that the members of a committee are discussing an issue that is not imminently on their agenda for a vote.

There are a handful of legitimate excuses for which otherwise-public meetings may be lawfully be closed.

If the discussion involves evaluating the performance of named individual employees, then that portion of the meeting may, lawfully, be conducted in private (though any votes generally must take place in an open session on the record). But officials shouldn't be allowed to stretch the definition of "employee personnel evaluation" beyond recognition. Any discussion of a problem with a government program can reflect on the performance of those running it, but faulty government programs are what the public has the greatest need to learn about.

For instance, one school board in New Hampshire claimed it could close a meeting to discuss board members' annoyance at the way they were portrayed in a high school newspaper. Board members defended the secrecy by claiming it involved a matter of employee job performance -- but everyone knew the real reason was that it would be embarrassing for an adult in a position of authority to throw a hissy fit about an unflattering photo shot by a 16-year-old. This is exactly the kind of behavior that the public needs to see, to be able to cast informed votes. If the obligation to meet in public means that such conversations won't happen, that is no great loss.

What is happening at Michigan State is undoubtedly happening elsewhere, and not just at college trustee meetings. If journalists are told they are unwelcome at "workshops" or "retreats" or other non-meeting meetings, they should consult the law (and their state attorney general's opinions), and also should make sure to request copies of any recordings or notes from such closed meetings, and any documents distributed or reviewed there.

And if trustees don't want to abide by the same disclosure laws that apply to the schools they govern, then they should discuss -- in public -- asking their legislators to change the law.

 

Tagged: open-meetings, Transparency Tuesday