The Open Meetings Act was not created for openness in government

January 12, 2012

Over the years of writing this column, I’ve received many letters, notes, and phone calls from folks that want me to write about some local issue that’s bugging them. As much as I appreciate their interest in Y&TL, I’ve avoided most local political stuff. 90% of it is so boring, small time, and inconsequential that I just can’t generate enough interest to write about it. If your kid got suspended from school and another kid didn’t, it doesn’t mean that the 10,000 or so people that get this paper care about it. That being said, we may have an exception in the works….

Most of you don’t care about County government, regarding it as something left over from the 19th Century. It doesn’t serve much of a function and I doubt if 5% of the people in Clare County can name a County Commissioner or even know there is such an animal. It does still exist though, and the Clare County Commission has gotten itself in one of those backwoods squabbles that manages to make its participants look less than serious.

If you’ve read this paper you know that someone in the Harrison area has filed some kind of criminal complaint against a County Commissioner[s] for violating the Open Meetings Act.

There’s been much sleuthing by the Sheriffs Department and a blizzard of denials from all involved about where the complaint came from and what motivates it.

To say I don’t give a [expletive deleted] overstates my interest. However this is You and the Law so here’s about all the law you need to follow the story.

The Open Meetings Act was not created for openness in government. It was created, and is written, to keep governmental agencies from concealing anything from the press. It’s a law to provide the media with fodder. That it might make an apathetic public aware of some governmental action or reveal some corruption is a bonus.  That’s not its primary purpose however, nor is that the history of its enforcement.

The OMA has spawned a considerable number of lawsuits and Attorney General Opinions. Courts have argued endlessly about what constitutes a” public body” and even what a “body” is. They’ve defined “decision” and “meeting” and every part of this law. Like every law of this type the cranks and soreheads have used it to harass and embarrass local boards and commissions with claims of technical violations being “illegal.”

Now to this “criminal” case. If you violate the OMA you can be sued. The maximum a loser might have to pay is $500. That’s $2500 under the limit of Small Claims Court.

There’s also a criminal penalty. In the years this law has been around I can only find one criminal case that has been brought. People v. Whitney was a case where some prosecutor charged three City Councilmen with violating the act. Violation is a misdemeanor with a maximum fine of $1000. Without bogging down too much in details, the Court of Appeals reversed their conviction in Whitney and said that this is what we call a “specific intent” crime. That means that you have to set out to intentionally violate the law. It isn’t enough if an issue came up in conversation you shouldn’t talk about except in a public meeting, and you discussed it. You have to intentionally have a meeting and intentionally violate the law. That “specific intent” to commit a crime has to be proven beyond a reasonable doubt by the Prosecution. Tough task.

That’s the history of the criminal version of the Open Meetings Act. One case, dismissed.

The bigger issue is: Why would anyone in law enforcement get themselves involved in something like this in the first place? It’s obviously small time politics with little or no public interest at stake. Tell them to sue if it’s that important to the complainant. Remember those “civil penalties?” But that isn’t any fun. The object is to embarrass and frighten your enemies, so if you can sucker some law enforcement agency into investigating you’ve accomplished what you’ve set out to do. The unsophisticated tend to be unduly impressed by uniforms, “investigations,” and something trivial being “illegal.”

So here’s a 2012 prediction: nobodies going to be prosecuted for this silliness. Nobody should. This is one of those little flaps that needs to be nipped in the bud. The longer it goes on the more it makes county government look ineffectual and unnecessary. Stop wasting your time and pass a budget before someone asks if we really need government left over from the horse and buggy days.

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