Does the law apply to the General Assembly?

by Katherine Gregg

Legislators make Rhode Island laws. But they have not always felt obliged to follow them. Meetings notices posted at the last minute. Descriptions of what might come up at a legislative committee meeting that are so vague — or voluminous — as to be worthless to the average Rhode Islander trying to keep up with or have an influence on what happens at the General Assembly. The question has come up many times over the years: Does the Open Meetings Law apply to the General Assembly? One attorney general after another has produced an opinion. But, they don’t all agree.

In May 1983, the Providence Journal asked then Atty. Gen. Dennis J. Roberts II to investigate a vote taken by members of the Senate Labor Committee on an unemployment insurance bill. The vote didn’t even take place at a meeting; the committee clerk polled each member individually and by telephone.

“If your investigation discloses a violation of the Open Meetings Law and the Superior Court upholds your position, the court may in its discretion declare the action of the Senate Labor Committee null and void,” the newspaper wrote Roberts.

In his May 11, 1983, opinion letter, Roberts gave two seemingly contradictory responses: On the one hand, he said: “Legislative Committees are subject to the Open Meetings Law. Discussion and action upon a bill which the committee has advisory power to recommend to the full legislative branch must take place at a duly convened meeting. Polling of members of the committee at their desks or by telephone is not within the letter or spirit of the law.”

But Roberts decided that no punishment was warranted in this case because, in his view, no harm was done. He based this on the fact that the bill was pulled off the Senate calendar and sent back to the Labor Committee for another vote after the newspaper drew attention to the committee’s earlier shenanigans. He then raised the issue that has muddied every discussion since about legislators’ obligations under the Open Meetings Law: the rights the state Constitution grants the legislature to make its own rules of conduct. Article IV, Section 7 says, in part: “Each House may determine its rules of proceeding, punish contempts, punish its members for disorderly behavior and, with the concurrence of two-thirds, expel a member.”

With this provision in mind, Roberts wrote: “To the objection that the meeting was not properly noticed…. It should be noted that Senate rules allow a committee to meet after a certain juncture of the session without prior notice or the posting of an agenda. The authority for the Senate to adopt its own rules of proceeding is found in the State Constitution… and the notice requirements in the rules thus supersede the notice required by” the Open Meetings Law. 42-46-6.

In May 1985, the Rhode Island affiliates of three citizen activist groups — the League of Women Voters, the American Civil Liberties Union and Common Cause — filed a formal complaint with the attorney general about the “routine” violation of the public notice requirements by six legislative committees. Among their issues: that meeting notices, if they were posted at all, contained such vague descriptions of what might be considered — “all bills previously heard in committee and all other matters still pending in committee” — that they were useless.

The House parliamentarian at the time, Elmer Cornwell, a political science professor at Brown University, offered this explanation: “As the session deadline approaches, and the pace of work accelerates, advance posting must often be waived.” But the citizen groups were unappeased by Cornwell’s apologia for the lawmakers or then House Speaker Matthew J. Smith’s promise to “rectify any quasi-problem.”

“We’ve documented more than 30 violations of the law’s requirement that meetings be posted at least 48 hours in advance,” said ACLU executive director Steven Brown at the same press conference where Marilyn Hines, then of Common Cause, accused the lawmakers of “subverting the Open Meetings Law at every turn. It seems to be accepted practice there.”

In July 1987, Common Cause and the League of Women Voters filed another complaint about the slipshod public-notice practices of legislative committees. Edward Oliver, then president of Common Cause, gave the reason for his group’s persistence at a July 28, 1987, press conference: “Certainly, a cornerstone of ethical processes in state government requires that our legislature be continually open to public participation. These violations are a disservice to our citizens who are effectively shut out of the process if there are no advance postings of meetings.”

In her comments, Carolyn Goldman, then president of the League of Women Voters, said the concern was more than academic to unpaid, volunteer groups such as hers. “These laws are essential to citizen participation in the political process of the state legislature. This time requirement is short as it is, and to further shorten it by non-compliance severely limits or excludes our lobbyists’ efforts to present League positions on issues before the Assembly.”

Then in February, 1988 came another report in which the ACLU harshly criticized public officials at all levels of government across the state, including lawmakers, for brazenly flouting the Open Meetings Law over a six-year period. The report — entitled “Behind Closed Doors: The Lack of Compliance” — also expressed concern about the “serious lack of enforcement of this law, over the years, by the Attorney General’s office.”

“The attorney general’s office has been extremely inattentive to its responsibility to enforce the (law). Violation after violation goes unpunished and for too long, the attorney general has accepted flimsy assurances of ‘good faith’ and ‘future compliance’ on even the most blatant violations.”

Over the years, three attorneys general were asked to take the lawmakers to task. All three — Roberts, Arlene Violet and James O’Neil — rejected to one extent or another lawmakers’ arguments that they are exempt from the Open Meetings Law. But none saw fit to punish the lawmakers for violations.

Roberts took the position: no harm done. Violet called the transgressions “inadvertent.” And O’Neil mediated what he touted as “a compromise” in which House and Senate leaders promised to provide “as much advance notice as possible” of legislative meetings. Violet explained her reasoning at some length in an October 15, 1985, letter to legislative leaders in which she wrote: “This office recognizes the importance of maintaining the Constitutional prerogative of the Legislature.”

In passing the Open Meetings law, however, the legislature itself declared an “intent to make public business known to the public,” and it did not exempt itself as it did for some other distinct groups. “Having not specifically exempted legislative committees from the definition of ‘public body,’ it is clear Rhode Island has a long history of maintaining a citizen legislature open to public input that the enacting legislature intended that legislative committees be subject to the Open Meetings Law,” she wrote. Even if one did not buy that argument, she noted: each legislature had the power to “modify the applicability of the Open Meetings Laws to its sitting committees. Such has not been done by any Rhode Island legislature since 1976. In fact, the presently sitting legislature has specifically alluded to compliance with the Rhode Island Open Meetings Law in its rules of the House and rules of the Senate.”

But all that said, Violet chose not to punish the Assembly or criticize it too harshly: “Although I find that legislative committees of the General Assembly are covered by and must comply with the Rhode Island Open Meetings Law… I also find that there is no evidence to contradict a further finding that any non-compliance with same was inadvertent and dictated by the exigencies of time rather than through any motive to escape public review of legislative actions.” O’Neil also opted to empathize and strike a compromise with the errant lawmakers, rather than go to court and seek sanctions against them.

Confronted by the Providence Journal-Bulletin with a hearing notice that listed 300 bills for possible consideration on a single night by the now defunct Joint Committee on Retirement, his deputy attorney general, Walter Gorman, responded this way on July 1, 1987: “It appears that the General Assembly took a cautious approach to the Act’s notice requirement, and thereby informed the public of every bill which might be considered at what was expected to be the final committee meeting of the 1987 session.”

In January 1998 — a full decade later — the General Assembly was castigated again for repeated violations of the Open Meetings Law that made it impenetrable to anyone but professional lobbyists and insiders. The violations were documented in a report entitled “Access Denied” that was jointly issued by Brown University faculty and students and Secretary of State James Langevin. The subtitle: “Chaos, Confusion and Closed Doors.”

In a follow-up report a year later, Langevin gave the lawmakers credit for “tremendous strides”: many fewer violations and the “complete elimination” of some practices such as the posting, day after day, of super-long agendas that make it impossible for the average citizen to know when a bill might really gets its hearing.

In 1998, then General Treasurer Nancy Mayer sought to close the “loophole in state law” that spares legislative committees from filing minutes with the secretary of state within 35 days, a requirement that that applies to other public bodies. Republican Mayer also sought to hold the Democrat-controlled legislature to the state’s equal employment and affirmative action laws, the Administrative Procedures Act and state purchasing law. But her bill went nowhere.

On February 3, 1999, newly elected Atty. Gen. Sheldon Whitehouse, a staunch believer in “separation of powers,” weighed in with his own opinion on the Open Meetings Law. In a letter to House Speaker John Harwood and Senate Majority Leader Paul Kelly, he wrote: “I feel obliged to inform you that this administration believes that the Open Meetings Law is not enforceable by this department against either House of the General Assembly, or any legislative committee thereof.”

While courts outside Rhode Island have “gone different ways to reach the conclusion that statutory Open Meetings Laws may not be enforced against legislative committees… the result has almost always been to keep the executive branch from intruding into internal legislative functions,” Whitehouse wrote. Though he was pummeled by critics, including Secretary of State Langevin, Whitehouse said he was only recognizing what his predecessors had tacitly acknowledged: that any attempt to enforce the law against the legislature was likely to fail in the courts.

Legislative leaders promised to abide by the law, regardless. Said House Majority Leader Gerard M. Martineau at the time: “We still think it is the right way to conduct business.”

With no fear now of any legal repercussions, some legislative committees have backslid. The House Judiciary Committee posted the same 13-page agenda for both March 28 and March 29, 2000, that guaranteed that no one outside the legislature’s inner circle would have any idea when and if the committee would take up any one of 87 posted bills, including guns, voter initiative, drunk driving penalties, a heavily criticized rewrite of the state’s public records law, affirmative action, and a new judgeship. In this kind of atmosphere, said H. Philip West, executive director of Common Cause, “there is both the danger that good legislation will die and that bad legislation will slip through.”

Katherine Gregg is a Providence Journal reporter who covers the State House.