The guru of open government in New York State, and around the US and world, Robert J. Freeman, paid a visit to New Paltz this past week, educating, delighting and initiating a provocative discussion with local officials, chairpersons and volunteers of regulatory boards/commissions, as well as the press and engaged residents.
Freeman is the executive director of the New York Department of State’s Committee on Open Government: the only government-sanctioned-and-supported committee of its kind in the world. He and his staff of one other person are the go-to source for politicians, media and New York State residents on the ins and outs of open government regulations, executive sessions, public comment, what is permissible/what isn’t, the reaches and limitations of the Freedom of Information Law (FOIL) and much, much more.
“I have the best job in state government,” said Freeman to a cozy gathering in Deyo Hall on Historic Huguenot Street. “I’m able to give legal advice to anyone who has a question, whether they’re government officials, members of the news media or members of the public…we’re here to help educate everyone on how to do the right thing and keep government transparent.”
Since the inception of this state-sanctioned committee in 1974 and the subsequent adoption of the Open Meetings Law and FOIL, Freeman and his staff (again, of one) have written more than 24,000 opinions, which are all documented, alphabetized, indexed based on subject matter or easy to find in their “search box” at www.dos.ny.gov/coog.
After his impressive and extensive list of accomplishments, awards and background was read by village trustee Stewart Glenn, who invited him to come to New Paltz, Freeman, a talker by nature and/or by trade, met his match when he addressed the New Paltz crowd, who quickly barraged him with questions. The first up was local gadfly Ira Margolis, who first thanked Freeman for responding to his various letters of concern, but then went on to ask what he was to do “when a person in power refuses to acknowledge a FOIL request” and won’t “give the information?”
Freeman asked what sort of information Margolis, a New Paltz Town Police commissioner, was after. “I requested all financial costs incurred by the Police Department, either directly or indirectly, so that I could do some analysis.” Freeman coined that as a “Holy Smoke Request,” noting that the “breadth of the request may fall under the portion of the FOIL law that says the agency who received the request must go through a ‘reasonable effort’ to comply; but court decisions have shown that government agencies are not required to go through a haystack to find one or two needles, even if those needles may exist.”
That said, Freeman noted that police expenditures should “be found in the annual budget, which every town government is working on right now,” and that the “supervisor should have an account book which documents and records every expenditure, which you have a right to review.”
Freeman was able to dispel several unknowns that have floated around as government officials change seats. The first was the quandary as to what constitutes a “meeting” of an elected board. He pointed out that he had a fine time at dinner with a majority of the Village Board, but that they were not there to “discuss village business” and thus did not constitute an official meeting that would trigger the Open Meetings Law. “The entire Village Board is here now; there are several members of the Town Board; but that does not mean you are in a meeting. Your particular issues are not being discussed; no actions are taken; there is no reason you’re all here except that you’re interested in a certain presentation that will help edify you,” explained Freeman.
A meeting, according to Freeman, is one that involves a majority of said board that meets to “conduct public business.” He pointed to the City of Newburgh, years ago, which came under assault by the courts and his own written opinion that their workshop meetings, with no public notice nor attendance, were really “official meetings” and were happening behind closed doors.
“Does it taste like, smell like, feel like a meeting to discuss public business?” he asked everyone present. “Yes, we have rules on the books; but there is still that gut reaction. What is right? We can write opinions, give advice; but you all know in your gut what is right and what is not.”
That translates to e-mail, texting and Facebook: forms of communication that did not exist when the laws were enacted. “We’re still trying to catch up. But the basic question remains the same: Does it feel, smell, taste right?”
Freeman said that there were as yet no court decisions that have condemned all government board e-mail communication. “Back in the day when the law was written, there were no cell phones, e-mail, texting…no desktop computers. But some of the principles remain the same. If an e-mail goes out from one government official to their board, then it’s like an inter-office memo. One might receive it instantly, another three hours later and someone the next day…it’s not a ‘meeting.’”
That said, Freeman advised officials to shy away from any “chat rooms” or “real-time” cyber-connections. “As long as no public transactions are happening on e-mail, then you’re okay…until the courts tell us that you’re not,” he said with a laugh.
Another Frequently Asked Question that Freeman answered was whether or not a municipal government or board/commission/committee had the right to require a person wanting to speak during public comment to state their name and address. His response? Resoundingly no! “There is a host of opinions and case law on this that state that any person has a right to speak during public comment, regardless of who they are or where they live; and while you can request that they state their name and address, you cannot require them to.” Freeman gave case-law examples of domestic violence survivors, minors, parents of children at a school board meeting who all produced legitimate reasons why they feared stating their name and/or address.
The open government expert also said that it was a “myth” that boards can go into executive session based on “personnel” matters. “Scratch that from your lexicon,” he said. “It’s not true.” He presented the criteria for executive session, which included legal strategy and hiring/firing/disciplinary actions regarding a specific individual, and then noted that if a vote was taken in or out of executive session, that it must be recorded to the clerk so that the decision is made public.
Not only does Freeman give lectures at universities throughout the world, as well as local, regional, national and international government/media/constituent bodies, but he also answers the phone and e-mail, and if not, gets back to you promptly if you have a question, concern or complaint. Log onto the website mentioned above or call Freeman and his Committee at (518) 474-2518. ++