‘Policy’ forces local officials to break Open Meetings LawBy Les Bowen for Genesee Country Express | March 3, 2011 | Original source
New York State Comptroller Tomas DiNapoli ran on a platform of open government and has continued to be a proponent of holding government officials and workers responsible. We chose to run DiNapoli’s own editorial alongside this column to demonstrate his views on open government. It’s one that the Express shares. It’s a view that crosses partisan politics and drives right at the root of what it means to have a democratic government. His stated views put DiNapoli in line with U.S. Supreme Court Justice Louis Brandeis, who said, “Sunshine is the best disinfectant.”
Unfortunately, DiNapoli’s office appears to be perpetrating a decade-long effort to shield from public view its own interactions with local governments and, in the process, give the OK to what are undoubtedly hundreds, if not thousands, of closed meetings that should be open to the public eye under the state’s Open Meetings Law.
In researching our front page story on the Comptroller’s Office latest actions in Springwater, we learned that the state officials have been closing meetings with local elected boards before and after its audits since at least 2001, when Robert Freeman, executive director of New York’s Committee on Open Government, wrote an opinion objecting to a similar action in the Town of Vienna.
“With respect to an exit conference, if the members of the public body attend, presumably they do so in the performance of their official duties and for the purpose of conducting public business,” Freeman wrote. “Therefore, based upon the judicial interpretation of the Open Meetings Law, I believe that the presence of a quorum at an exit conference would constitute a meeting subject to the Open Meetings Law.” However, in the decade since that opinion, and presumably in years prior as well, the Comptroller’s Office has not only allowed, but outright enforced the violation of the law by local officials.
Our research brought forward a similar circumstance in East Aurora, near Buffalo. In January, the Holland School Board decided it was going to follow the law by properly advertising the public meeting and then adjourning to an executive session to meet with auditors. But, as reported in the East Aurora Advertiser, “less than an hour before the meeting, state auditors canceled their appearance, reportedly stating they did not like that there would be any form of an open public meeting.”
That’s right — when elected officials tried to comply with the Open Meetings Law, the Comptroller’s Office refused to show. In a concession, auditors later met with three of the seven school board members (by not having a quorum present, the school board wasn’t subject to the Open Meetings Law).
Yet even if officials went into executive session, audit conferences fail to fit into any of the eight categories for closed meetings.
What is the Comptroller’s office trying to hide by closing meetings that from every appearance are subject to the Open Meetings Law? What part of the public affairs of a publicly elected body isn’t seen?
As Michelle Rae, executive director of the New York Press Association said, “It’s unconscionable for public officials to think that the public’s business isn’t the public’s business.”
Here we have the very agency tasked with policing local governments across the state for compliance with standards of open government, headed by a State Comptroller who campaigned on a platform of open government, shutting down public meetings.
It’s near to impossible to tell how many times the Comptroller’s Office has met with local officials in violation of state law; the meetings aren’t publicized, no minutes are kept and no one but auditors and local officials know what transpires behind closed doors.
As auditors meet with local officials in a growing pattern of violation of the Open Meetings Law, what message are they sending to local elected officials? How many more illegally closed meetings have happened as councils and boards apply the same flawed logic to their own routine meetings? The damage is immeasurable.
To be clear, town officials in Springwater aren’t blameless in what happened last week. Any of the elected officials could have spoken up to say that the meeting was out of line and walked out in protest. But in fairness, these town officials were deferring to the best authority in the room and followed that advice, despite the blatant contradictions with state law. While undoubtedly thousands of public officials have been taken in by the assurances from auditors that — as one town official said this week “everything was legal” —they all bear some responsibility.
However, the lion’s share of the culpability falls squarely on the Comptroller’s Office. If any other agency acted as Comptroller’s Office has, an audit would have cited the violation. Why is one agency exempt?
If Comptroller DiNapoli wants to clean up state government, a good place to state is his own office. It’s time to end the habit of illegal meetings by changing the policy.