Opening the doors: General Assembly audits and the open meetings law

by Seth Andrew

“The people of the state of Rhode Island believe that public officials and employees must adhere to the highest standards of ethical conduct, respect the public trust and the rights of all persons, be open, accountable and responsive, avoid the appearance of impropriety and not use their position for private gain…” (RI Constitution, Article III) .

In 1997, RI Secretary of State James Langevin and a team from Brown University issued a report titled “Access Denied: Chaos, Confusion, and Closed Doors,” that revealed the Rhode Island General Assembly’s low compliance with the Open Meetings Law (§ 42-46) that they themselves had passed.

Despite its position of leadership, the General Assembly was notorious for violations of both the spirit and the letter of the Open Meetings Law. Groups and individuals reported a range of violations of the law, but little had been done to improve the culture of non-compliance at the State House. There had not been an independent, quantified evaluation of compliance with the Open Meetings Law until 1997.

When State Representative James Langevin was elected to the office of Secretary of State in 1994, he vowed to increase access to the legislative process, rebuild trust in state government, and provide unprecedented access to legislative information. Improvements were made in the form of an independent database of legislative activities, enhanced bill-tracking through online access to legislative information, time-stamping of meeting notices, and the creation of the Office of Public Information. In early 1995 letters were sent to the Speaker of the House and the Senate Majority Leader requesting compliance with the Open Meetings Law.

As Secretary of State Langevin was making these changes, Superior Court Justice Patricia A. Hurst decided a landmark case in April of 1997, ruling that three members of a Barrington School Committee advisory group had willfully violated the state’s Open Meetings Law. The members had failed to post their meetings or keep minutes and were ordered to pay “minimum” fines for demonstrating “a reckless disregard for compliance with the law.” The case was the first to impose fines for violations of this law and raised the question of whether members of a local school committee were being held to a higher standard than those who created the law — the General Assembly.

By mid-1997 reports of Open Meetings Law violations persisted. Secretary of State Langevin met with members of Brown University’s Taubman Center for Public Policy where they discussed conducting a comprehensive study to determine the exact scope of the legislature’s failure to comply with the Open Meetings Law. Professor Ross Cheit and three undergraduates, Seth Andrew, Kathleen Campbell, and Robert Taylor, joined the project.

The Study

Rhode Island has a long history of maintaining a citizen legislature open to public input on a scale found in few states. Citizens are welcome to come to the State House, witness legislative proceedings, and even testify on legislation before Assembly committees without prior notice. Lobbyists and average Rhode Islanders are equally welcome at legislative hearings under the law, but significant barriers to participation exist.

State House regulars may know how the system works or have “inside information” as to which specific bills will be heard in which committees at what time. However, the public was often given little, if any, notice about the agendas of these meetings and the information that was provided was often long, complex, and/or inaccurate.

In the summer of 1997, the Brown University team began the study, whose purpose was three-fold. First, to catalogue the scope of the legal violations of the law in a format that was reliable and valid. Second, to promote citizen involvement in the legislative process by building a greater understanding of citizen’s legal access rights. Third, to prompt improvements in the General Assembly’s compliance with the law.

The Brown University team began a review of legislative materials to look at each standing committee’s compliance with the Open Meetings Law for every meeting held during the 1997 legislative session. They used computerized legislative tracking database records and crosschecked them with time-stamped meeting notices, minutes of committee meetings, and the various stamps affixed to legislation as it passed through the system, to compile a robust record of legislative activity.

In sum, 388 meetings, 3,226 pieces of legislation, and 9,383 instances of legislation posted on agendas were reviewed and double-checked by both the Brown team and staff in the Office of the Secretary of State. Upon the final review, each committee was “graded” based on the percentage of total committee meetings in compliance with both the letter and the spirit of the law.

Letter of the law violations were broken into three categories: Meetings with no public notice, meetings without adequate public notice, and additions or revisions made to the meeting agenda without adequate public notice. Each of these categories was determined by comparing recorded committee actions with public notices for those meetings or the lack thereof.

Spirit of the law violations were also broken into three categories: Meetings with “continuous calendars,” meetings posted as part of a “multi-day” calendar, and meetings with “unreasonable” agendas. Continuous calendars are those stating that “any bills not previously heard and/or considered by the committee” may be taken up at a given meeting, without specific reference to the bills on the agenda. Multi-day calendars were those that listed dozens of bills over a two, three, or four-day period with no indication of which bills would be heard when. Meetings with unreasonable agendas were those that posted more bills than the committee had ever been able to hear at any single meeting.

Hypothetical fines, based on the 1997 Barrington School Board precedent, were also reported for each committee to indicate the severity of the violations and the implications for individual members as well as the leadership of the committee and the General Assembly. Fines were only reported for letter of the law violations, an indication of the conservative standard used by the authors in making most methodological decisions.

The report, published as “Access Denied: Chaos, Confusion, and Closed Doors,” revealed that violations of the Open Meetings Law were routine and widespread. A total of 52% of the meetings held in the 1997 session were shown to have had some type of violation of the letter or spirit of the Open Meetings Law. Substantive action was taken on 236 bills with no notice to the public whatsoever, including items as important as the state budget and the sale of major non-profit hospitals to forprofit companies. There were a total of 166 violations of the letter of the law and 176 violations of the spirit of the law in the 1997 session alone.

Egregious examples included 41 meetings that were posted on the same day the meeting was to take place, and even some that were posted after the meeting had been scheduled to begin. One committee posted a meeting agenda containing 254 bills to be heard, even though the most bills that they had ever acted on in one meeting was 55. Another committee was found to have had some type of violation of the letter or spirit of the Open Meetings Law 86.7% of the time. Half of all the standing committees received failing grades, indicating less than 60% overall compliance with the letter or spirit of the law. Not a single committee had 100% compliance with the letter of the law. If one was to apply the Barrington case minimum standard of $75.00 per member per violation, the members of the General Assembly would have owed a total of $126,425.00 as a result of 1997 Open Meetings Law violations.

Fortunately, a few bright spots appeared in the findings. Four Senate committees complied with the spirit of the law 100% of the time and the Senate Health, Education, and Welfare Committee also complied with the letter of the law 80% of the time, indicating that passing grades could be achieved if the effort was made to adhere to the Open Meetings Law.

Aftermath and improvements

The report came under immediate attack, especially by the leadership of the General Assembly who claimed it was inflammatory and unfair. Legislators denounced it as “outrageous slander,” “disinformation,” and “blatantly untrue.” They said it contained mistakes and promised to prove the document flawed. Langevin and the Brown team released more than 1,000 pages of supporting documents showing proof of the violations and offered to evaluate any criticisms and correct any errors.

None of the initial critics could prove that there was even one error in the study and eventually the furor gave way to an understanding of the problem. In short order, the House and the Senate made strides to improve access to the legislative process. The 1998 session saw dramatic improvements in compliance with the spirit and letter of the Open Meetings Law. A special committee of the Senate was formed to address proposals to enhance public access. Subsequently, the use of “continuous” calendars and “multi-day” calendars was completely abolished, leading to 100% compliance for the entire General Assembly in those two categories.

A March 1999 report, “Access 1998: Opening the Door,” issued by Secretary of State Langevin, detailed the General Assembly’s compliance during the 1998 legislative session. It showed improvement in compliance, but left room for further gains. It showed that 10% of legislative hearings had some degree of violation of the Open Meetings Law, down from 52% the year before. Four committees had 100% compliance with both the spirit and letter of the law, up from zero. Every committee had a passing grade, and most received “A” grades while only half of the committees had received passing grades the year before. Continuous calendars and multi-day calendars were completely eliminated and the number of unreasonable agenda violations declined from 47 to 7. The total number of violations of the letter of the law declined from 166 in 1997 to 44 in 1998, and spirit of the law violations declined from 176 to just 7.

Clearly, violating the law 10% of the time is not cause for complacency, as 100% compliance is both expected and required for all public bodies. But the speed with which the changes were made gave great hope that perfect compliance could be achieved in relatively short order. Unfortunately, there have not been any further studies of the General Assembly’s compliance since 1999, so the question remains as to whether further improvements were made, or there was a relapse to old practices.

Recommendations

“Access Denied: Chaos, Confusion, and Closed Doors” and “Access 1998: Opening the Door” pointed towards three recommendations. First, the need for effective third party monitoring of the state’s Open Meetings Law. Second, the need for an electronic system that tracks and records all of the notices, agendas, and additions to the agendas as well as the corresponding votes and actions taken by the General Assembly committee on each bill. Ideally, compliance with the system would be made mandatory through an amendment to the Open Meetings Law. Such a system could automatically report violations of the open meetings statute to the Attorney General. It would also have the benefit of centralizing and organizing data on members’ votes in committee.

Third, the General Assembly should make every effort to establish a regular meeting schedule for the legislative season that is announced at the start of the session and strictly adhered to throughout. This can be accomplished by scheduling committee meetings and floor action on separate days, restricting the time of committee meetings, or holding floor sessions after scheduled committee meetings instead of before.

With enough focus and determination, Rhode Island can become a national model for Open Meetings Law compliance. Most of all, it can help to open the doors and encourage all citizens to become engaged in the civic life of Rhode Island.

Seth Andrew was one of the Brown student researchers and co-author of ACCESS DENIED. He is currently the director of the Providence-based Democracy Schools Coalition and CEO of SAGA Non-Profit Consulting. He can be reached at Seth@alumni.brown.edu.

References and further readings:

¦ An electronic version of “Access Denied” can be accessed through the home page of the Taubman Center at Brown University: http://www.brown.edu/Departments/Taubman_Center/

¦ An electronic version of “Access 1998: Opening the Door” can be accessed through the home page of the Rhode Island Secretary of State: http://www.sec.state.ri.us/accessrpt/execsum.htm