Friday, February 4, 2011

Senate Substitute for S-1351 (Open Public Meetings Act)

A few readers have asked me for my thoughts on the Senate Committee Substitute (SCS) for S-1351 that was passed by the Senate State Government Committee on Monday, January 31st.

(Both the SCS and the version of S-1351 that was introduced are on-line here.)

Most of the SCS's changes are clearly good, but I've noted some possible concerns below:

1. The SCS defines "effective majority" as "the number of members necessary to conduct public business." Accordingly, an "effective majority" will be the same as a quorum. SCS/page3/line39. Many activists had previously argued that "effective majority" meant a majority of a quorum.

2. Instead of requiring bodies to notify the public of the "specific starting times" of a closed session, the SCS allows them to announce those times "as nearly so as can be established." SCS/4/33.

3. The SCS allows members of public bodies to send text messages to each other during meetings as long as those messages are "purely administrative in nature." SCS/6/28. Yet, a citizen observing two council members texting each other will have no way of knowing whether those texts are administrative or substantive.

4. The SCS requires bodies to audio-record their public meetings only if they already own sound recording devices. SCS/9/31. Accordingly, public bodies can avoid audio-recording meetings by refusing to purchase audio devices or by disposing of the devices they already possess.

5. The SCS removes the requirement that closed meetings need to be audio-recorded by a public body and allows any recordings of closed sessions that a public body voluntarily records to be kept confidential unless otherwise ordered by a court. SCS/9/35 and SCS/10/4.

6. The SCS allows for dismissal of a lawsuit to void a public body's action because of sunshine noncompliance if a) the body takes action after the lawsuit's filing that moots the case and b) if it's the public body's first instance of noncompliance. And, the SCS denies attorney fees for non-prevailing plaintiffs who bring such suits even if their suits are "found to have been instrumental in bringing about compliance." SCS/10/29 and SCS/10/40.

7. The SCS limits the public's enforcement of sunshine penalties to only those members of the public who have "suffered an injury in fact" by the sunshine violation. SCS/11/19 and SCS/11/29.

8. The SCS allows for removal of an appointed official only if a court determines that his or her sunshine violations "result in a significant denial of the public's right of access." SCS/13/26

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