Sunday, March 16, 2008
Shutting the public out of the conversation
Dan Radmacher
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From the RoundTable blog
Rarely do you find inspiring language in legislation. But West Virginia's Freedom of Information Act is an exception. In that law, the legislature declared, "Government is the servant of the people, and not the master of them. ... The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know."
I've yet to see a clearer statement of the fundamental principle of representative democracy: the people's right to know what the government is doing in their name
The notion that elected officials don't get to decide what the people ought to know about the public's business is a difficult concept for some -- as is the idea that allowing the public to witness the deliberative process is as important as letting the public in on the final vote.
Roanoke City Council members, for instance, have developed a bad habit of meeting via e-mail or serial phone conversations, then rubber-stamping the decisions they arrive at in open session with little or no discussion.
They did that with the decision about where to locate a potential city amphitheater. Some accuse them of doing it with the decision to replace Victory Stadium with smaller stadiums at William Fleming and Patrick Henry high schools.
Most recently, they did it with the decision about the process to replace Councilman Alfred Dowe after his resignation over questionable expenses.
In many states, such serial meetings are violations of open meetings laws. In any state, they violate the spirit and the intent of the law.
At a recent meeting between the editorial board and Mayor Nelson Harris and City Manager Darlene Burcham, I repeatedly asked Harris how the practice of discussing an issue with a majority of council members one at a time to develop a consensus differed from an illegal private meeting. He responded by justifying the need to quickly settle on a procedure for replacing Dowe, since council had such a short window to get that done.
That's not the issue, however. The question was whether discussing the same public business with multiple members of council, one after the other, to arrive at a consensus violates the spirit and intent, if not the letter, of the open meetings act.
Burcham said that in her entire multidecade career in several Virginia localities, things have always been done that way.
I don't doubt that. Virginia doesn't exactly have a rich tradition of open government, from what I've seen.
The nationwide movement toward making serial meetings illegal is fairly recent, but overdue.
Kentucky passed one of the first laws banning serial meetings back in 1992. Other states have followed. In some states -- Texas and Ohio are two examples -- the law doesn't specifically ban such meetings, but state Supreme Court or attorneys general opinions have declared them a violation of the law.
A 1996 Ohio Supreme Court ruling laid out the case well. The Cincinnati city manager had held a series of private, back-to-back meetings with city council members to work out the details of a joint proposal with Hamilton County for new professional sports stadiums for the Bengals and the Reds. The manager testified in a deposition that he never had a quorum of council members meet "so that we wouldn't violate Ohio's Open Meetings Law."
In its ruling, the court said, "To find that Cincinnati's game of 'legislative musical chairs' is allowable under the Sunshine Law would be to ignore the legislative intent of the statute, disregard its evident purpose, and allow an absurd result."
That absurd result is far too common in Roanoke -- and, doubtless, in other Virginia localities.
All it takes to circumvent the open meetings law in Virginia is a string of e-mails, phone calls or meetings.
That loophole needs to be closed. The General Assembly should amend the law to prohibit serial meetings and ensure that the people are privy to all the deliberations of the officials they elect to conduct their business.
In the meantime, I hope Harris and others on council will think twice before picking up that phone or sending that e-mail to discuss the city's -- and the people's -- business.
There is no practical difference between that common practice and meeting illegally behind closed doors.
Radmacher is the editorial page editor of The Roanoke Times.
