The Office of Information Practices has offered a summary of two bills it has submitted for inclusion in the Governor’s administration package of legislation. These comments relate to the second of those bills, referred to by OIP as the Sunshine Bill.
The first provision would require electronic posting of meeting notices on the State’s electronic calendar, and give counties the option to adopt electronic posting. It’s long overdue.
According to the OIP summary:
The statute, as amended, will continue to provide alternative means of receiving notice through mail or electronic transmission for those members of the public who do not have access to the Internet.
It isn’t clear from the description whether agencies will be required to provide individual meeting notices via email to those who request such notice. Currently, agencies are required to send meeting notices by regular mail on request.
The second provision addresses the situation where a public meeting scheduled to accept public testimony has to be cancelled because of the lack of a quorum, equipment failure, or some other reason. Often members of the public have made special arrangements to attend and present testimony, but the law currently doesn’t allow a group of board members to receive and consider such testimony outside of a meeting.
The proposal would address this by creating a new “permitted interaction” to allow testimony to be received at a cancelled meeting, with certain restrictions and reporting requirements.
The next provision would again create another “permitted interaction” to allow less than a quorum of board members to attend public conferences, meetings of community groups, or other public gatherings. OIP has previously taken the position that attendance at such events is permitted only with substantial restrictions and with advance authorization.
The intent is positive. But I’ve got a philosophical issue with approach.
Here’s the problem as I see it. The Sunshine Law was broadly written to require meetings of government agencies, boards, and commissions to be open to the public, except when exceptions are specifically authorized by law. It also prohibits the use of various means, whether electronic communication, serial conversations, or informal gatherings, to circumvent the law.
Initially, there was a very short list of exempt meetings, a list that has grown longer over time as different interests seek to keep additional matters from the public. Sunshine advocates have responded by trying to become more and more specific about what kinds of things are allowed, with the list of “permitted interactions” straying very far from actual meetings.
The result has been what I consider some absurd results, including the notion that circulating draft bills for signatures prior to introduction would somehow violate the law, despite the fact that it has nothing at all to do with whether the bill will become law or not.
And I go back to other example that I ran into personally, when I asked a member of the city council how his colleagues viewed the proposed rail transit and his suggestions for how they might be approached by citizen lobbyists. He responded that he didn’t know how they really felt or what their motivations for supporting or opposing rail might be, because the sunshine law prevented them from speaking informally about their positions on the issue.
That attitude robbed his constituents from effective representation, since he wasn’t in a position to attempt to exert influence on the votes of other council members except in the formal setting of a public meeting, where the types of influence would be restricted.
My views are reinforced by my experience in various kinds of task groups, from serving on the boards of nonprofit organizations and condominium associations, to negotiating settlements in lawsuits. In all those settings, especially when dealing with disagreements or controversies, informal communications are essentially in working towards any eventual consensus.
So to me, the issue is how to allow interpersonal and intra-group politics while preventing the wholesale circumvention of public discussion and decision making. The attempt to specify exactly what is allowed under what circumstances, and what is not allowed under what circumstances, seems sure to make a law that is so complicated only attorneys can understand or follow it.
I’m a little pressed for time this morning, and will try to return to this issue later.