The NEFAC Report Blog has a new look

June 18, 2010 by

Please visit us at http://www.northeastern.edu/firstamendmentcenter/ and update your bookmarks.

Thank you.



E-mails show Beverly, Mass. school official pushed to keep her husband employed

June 17, 2010 by

By Cate Lecuyer, reporter, The Salem News, Salem, Mass.

 A string of emails obtained by The Salem News through the state public records law revealed the lengths taken by Beverly School Finance Director Joan Liporto to keep her husband employed as the school maintenance director.

 The emails show Liporto tried to a block a move to merge city and school maintenance departments, told her boss she would quit if her husband, Tim, wasn’t hired to the new maintenance director position, and helped create a description for the job he was applying for.

 For a year, the Salem News heard whispers Liporto was trying to keep her husband, a plumber by trade, in the $72,921 salary position as the director of buildings and grounds, a position some said he wasn’t qualified for.

With nobody willing to speak on the record, the accusations were hearsay. However, through an unexpected connection we heard of an email that city Public Services Commissioner Mike Collins sent to the city solicitor’s office, requesting advice on how to respond to an email from Liporto about the buildings and grounds position. After a state public records request to the city solicitor, the Salem News had the email in a matter of days.

 The emotionally charged tone made it clear there was more electronic correspondence leading up to Liporto’s message, in which she tells Collins she’s “perplexed” he refused to support hiring her husband.

 The Salem News sent Liporto a state public records request for all emails she sent and received pertaining to the maintenance job and discovered a back-and-forth that clearly showed her advocating for her husband, and pressuring others to keep her husband employed.

 Liporto says she was advocating not for her husband, but against consolidating in general, because the current system worked so well. The fact that consolidating would abolish her husband’s interim position had no bearing on her decisions, she said.

Public records are the public’s property

June 15, 2010 by

By David Solomon, executive editor, The Telegraph, Nashua, N.H.

 New Hampshire has allowed public officials far too much discretion in the disposition of their documents and public papers upon leaving office.

 As the state Senate debates a bill requiring governors and congressmen to turn over a selection of their papers to the state archives, we learn that no governor for the past quarter century has left a record of memos, correspondence, calendars or other notes to posterity.

As far as we know, boxes full of material that would illuminate history and inform future generations have been destroyed, lost or kept private.

U.S. Sen. Judd Gregg, R-N.H., is a good example. Gregg has acknowledged he did not save documents and other materials from the time he served as governor between 1989 and 1993.

More recently, Attorney General Kelly Ayotte, now a candidate for U.S. Senate in the Republican primary, has been pressed by political opponents for her calendar and e-mails, particularly any related to the investigation of Financial Resources Management.

The ill-fated investment firm is now under investigation for allegedly operating a Ponzi scheme that cost investors as much as $80 million.

But none of those records can be found because apparently it is state policy to delete the e-mail account of an employee upon departure.

 If that is indeed the standard policy, or worse, there is none, state officials need to develop one that ensures that important documents don’t just disappear because a state official chooses to leave office.

Action is needed on two fronts: Legislation now pending that would require governors and congressmen to turn “selected” papers over to the state’s archive needs to be amended so that all papers are turned over; and protections need to be put in place to prevent the mass destruction of e-mails and other documents in digital format. 

As for e-mails and other documents on state-owned computers, a policy should be developed and enforced to allow such material to be stored and cataloged for future access upon departure of high-level state employees.

There is no compelling argument for practices that destroy the public record rather than preserve it. Space is certainly not an issue. In the digital age, the entire contents of Ayotte’s hard drive would fit on a storage device the size of your thumb.

Journalists, historians, political operatives – or anyone else, for that matter – should be able to request and receive e-mail records, just as they were provided to The Telegraph when it made a recent request for e-mails from the Nashua mayor’s office.

None of this is to suggest that Ayotte did anything wrong, or that Gregg had something to hide. The attorney general’s office was following a procedure that has apparently been in place for years, while Gregg was certainly not the only governor to leave no records for the state archive.

But both cases served to highlight the urgent need for legislation and policy changes to protect the “source material” of history.

Videographer takes on Conn. board over taping rules

June 9, 2010 by

By Frank Loda, Seymour, Conn.

In 2005, the Seymour, Conn., Board of Selectmen began forcing me as a videographer to “move (my) camera to the back of the room” and to “not video tape speakers” who asked to have the camera turned off when they were talking. The First Selectman also called the police to enforce his demand when I questioned the authority for such an order. Rules were then adopted by the selectmen that I appealed to the state’s Freedom of Information Commission. Eventually, FOI ruled the selectmen’s video taping regulations were “null and void” and fined the board $500 for their inappropriate actions. FOI said the board “was unreasonably targeting the complainant and subjecting him to arbitrary, and even, discriminatory treatment with respect to video taping … meetings.”

The Board of Selectmen then ignored the FOI order to adopt new rules and I filed a “non-compliance complaint” against the First Selectman that resulted in a favorable decision and an additional $500 fine. This entire matter was then appealed by the town to the Superior Court, and was finally withdrawn in November when the incumbent First Selectman lost his bid for re-election. Unfortunately, exorbitant legal fees cost taxpayers many thousands of wasted dollars.

A new Board of Selectmen and town counsel recently approved new rules that I have challenged because two FOI recommended principles were not included in the provisions:

     1. “That people speaking at a public meeting … have no right to privacy, and that persons who attend and verbally participate must expect their statements and images may be recorded.”

     2. “That restrictions on the use of the recorded product other than those currently existing in general law are not permitted.”

The current First Selectman promised to amend the rule nearly two months ago but has not yet done so.

This entire matter is like dealing with a third world country where liberties are assaulted in an attempt to protect political injustices.

 Although the FOI and court cases have continued for nearly five years, I do not intend to allow the FOI recommendations to be ignored. People have a right to videotape public meetings and politicians do a disservice to their constituents by inappropriately restricting that right.

Readers can view several videos that further identify the restrictions implemented by the Town of Seymour’s Boards of Selectmen by clicking on the following links:

1st Town Policy adopted for video taping rules – 12/05

http://video.google.com/videoplay?docid=-3501567524081631355

Loda recommends new video taping rules – 3/10

http://www.youtube.com/watch?v=MyiZtR1VHPU

Board of Selectmen reject two FOI recommendations on taping rules – 4/10

http://www.youtube.com/watch?v=D7jtJ1PHKwo

1st Selectman agrees to amend video taping rules – 4/10

 http://www.youtube.com/watch?v=9J8bF5KIoLA

New law blocks Conn. inmates from accessing guard files

June 8, 2010 by

By James H. Smith, executive editor, The Bristol Press and New Britain Herald

Both houses of the Connecticut General Assembly passed legislation by unanimous acclimation and Gov. M. Jodi Rell signed it into law last week preventing inmates from reading the personnel records of prison guards. 

It is a wholly unnecessary law.

The state Department of Correction, Connecticut’s most secretive agency, did not want inmates having access to guards’ personnel files. Department spokesmen pitched it as inmates after “personal” files. They waned to protect the home addresses of guards. Connecticut state law already protects the home addresses of virtually every state public employee — a no doubt unconstitutional statute, given a recent ruling by a federal judge in Florida.

But Connecticut public officials, when it comes to transparency and open government, too often opt for hiding information.

The state Freedom of Information Commission had lobbied against this most recent piece of legislation as both redundant and against the spirit of open government, but not one politician listened.

Meanwhile in Florida, state and Tallahassee authorities agreed to pay $60,000 in damages and legal fees to Robert Brayshaw and his lawyers from the American Civil Liberties Union. Brayshaw, who was arrested and briefly jailed for posting a local police officer’s home address on a cop-rating website, said last week his ordeal was “completely crazy.”

“Just because I posted it, I got arrested. It wasn’t like it was the Pentagon Papers,” Brayshaw, a 35-year-old Tallahassee man, told Wired.com. Now unemployed, he said it has been difficult to get a job because of his 2008 arrest. He spent nearly three hours in jail and was prosecuted under a 1972 statute making it unlawful to publish personally identifying information of a police officer.

Brayshaw’s comments came after the deadline passed for Florida to appeal a federal judge’s decision that declared the First Amendment trumped Florida’s law protecting the privacy of police officers.

U.S. District Judge Richard Smoak in Tallahassee ruled the First Amendment does not protect “true threats, fighting words, incitements to imminent lawless action, and classes of lewd and obscene speech.” But publishing an officer’s phone number and address, he said, “is not in itself a threat or serious expression of an intent to commit an unlawful act of violence . . . The release of personal information, even with the intent to intimidate, is not per se a true threat . . . Rather, disclosing and publishing information obtained elsewhere is precisely the kind of speech that the First Amendment protects.”

 Brayshaw said the officer “basically had her information listed publicly in the phone book.” He had a beef with the officer regarding a trespassing flap in which he was not charged.

License to report: Michigan state senator wants journalists to register

June 6, 2010 by

By Walter Robinson, Distinguished Professor of Journalism, Northeastern University

Michigan State Sen. Bruce Patterson’s ham-handed legislative proposal to have reporters registered by the state poses no serious threat to the First Amendment: The bill has not a single co-sponsor. Patterson says he doesn’t expect it to become law. It was filed, he insisted, merely to provoke discussion.

So let’s discuss it. And since we know more about Michigan football than we do about Michigan government, let’s pretend Patterson filed the bill as a Massachusetts legislator.

Under the legislation, a state board would license journalists, who cover the government officials who appoint the board’s members and the legislators who would appropriate funds for the board’s operations. No problem there, right?

But in the registration process, a slight problem: Journalists seeking to be licensed would have to provide proof of “good moral character’’ as well as evidence they have ethical standards the board finds acceptable. No small hurdle there!

The hard-working political reporters I know meet those standards. At any serious news organization, good editors keep a watchful eye to make sure they do. But what are the chances that   the government officials who control the licensing board would have the same view?

From what I’ve read about Patterson’s bill, I don’t think he was ill-intentioned. Ill-informed, yes. Ill-advised, for sure. In explaining his proposal to reporters, Patterson expressed confusion about  the proliferation of media, and thought it wise to consider registering “serious’’ journalists.  That way, he reasons, the public would be able to judge the quality of the journalism they get.

Patterson, who is leaving office, said he had thought that journalists were required to have degrees in journalism. When he found out that was not so, according to a Fox News report, the senator mused that perhaps he could retire and become a journalist himself.

If Patterson made that career switch, then he’d be required by the board he envisions to pass another test that would strike fear in the heart of any reporter. To be licensed, we’d all have to give the board three writing samples to judge.

Open government agency favors bulletin boards over the Internet for meeting notices

June 3, 2010 by

By Karla J. de Steuben, attorney and creator of the Massachusetts Campaign for Open Government, a project of Common Cause Massachusetts

One of the new changes to the Massachusetts Open Meeting Law, effective July 1, will require municipal clerks to make notices of meetings accessible to the public 24/7.  The Attorney General, through the newly organized Division of Open Government , may “prescribe or approve alternative methods of notice where … such alternatives will afford more effective notice to the public.”  The most effective way to make any public record, including a meeting notice, available to the public 24/7 is to post it on the Internet.  Yet remarkably the Division of Open Government appears to have come to the opposite conclusion, mostly based on inaccurate facts.  A number of city and town clerks are urging the division to change its position.  Let’s hope that the division listens to them.  

Here are the reasons why it should:

First, the law requires that meeting notices be accessible 24/7.  Anything posted on the Internet is accessible 24/7.  So, anyone anywhere with an Internet connection will be able to read, download, or print meeting notices at any time, if the notices are posted online.   

Second, according to the latest U.S. Census Bureau statistics from October 2009, 81.7% of individuals in Massachusetts live in a household with Internet access, and that percentage will only continue to increase.  (The same survey found that 73.5% of individuals in the United States now have Internet access in their household, not 62% as stated by the Division of Open Government.)  The remaining 18.3% who do not currently live in a household with Internet access most likely have neighbors or family members who do have access or they have a public library that has access.  So, anyone who wants to obtain a copy of a meeting notice will be able to do so relatively easily if the notices are posted online.  

Third, Common Cause Massachusetts, which reviews local government websites annually,  found that as of January, 2010, at least 303 out of 351 municipalities already post some records on their municipal website, and the number could be as high as 326.  So, almost all municipalities in Massachusetts already have the capability to post documents online.  (The Division of Open Government misinterpreted Common Cause’s findings in its Request for Comments, incorrectly stating that “at least half of all Massachusetts cities and towns are not currently in a position to post their meeting notices on their websites.”  This is simply not true.)            

Fourth, and perhaps most compelling, requiring that meeting notices be posted on municipal websites as a way to comply with the new law may result in other public records being posted online as municipal clerks discover how easy it is to do.  In essence, it may have the effect of making local governments even more open.  

No other method listed by the Division of Open Government in its Request for Comments  will be as effective in providing easy and quick access to meeting notices and other public records as posting them on the Internet, now and in the future.  (Anyone who thinks that using the local cable channel is a good way to provide meeting notices to the public has either never watched local cable or has a lot of time on their hands.)  Let’s hope saner, more informed heads prevail at the Division of Open Government on this issue.

Minutes of closed-door meeting reveal maneuvering over Seekonk, Mass. fire chief contract

June 3, 2010 by

By Mike Kirby, editor, The Sun Chronicle, Attleboro, Mass.

The vote was shocking at first.

The Seekonk Board of Selectmen abruptly voted to fire its fire chief, Alan Jack. But then, a matter of days later, the board pulled a 180, rescinding its earlier vote and awarding Jack a three-year contract.

Why? There were no clear explanations from officials, or from the fire chief.

But there’s often a paper trail, in this case the minutes of the meeting held in executive session, or behind closed doors.

State law requires boards to meet publicly except in a few specific situations, but minutes have to be kept. And the minutes of those closed-door meeting must be made available within 10 days if the matter is resolved.

With the fire chief awarded a new contract, we asked for the minutes — and waited. When the minutes did not arrive within the deadline, we wrote a story and an editorial, explaining that the board is in apparent violation. The editorial put it simply: Just what is the Seekonk Board of Selectmen hiding?

The suspicions grew stronger when the board finally supplied what it labeled “redacted” minutes. Through another source, however, we were able to obtain a draft of the original minutes and found out what the board had been hiding — that selectmen had conversations with a retired chief to serve as interim chief before Jack had even been fired.

The entire incident should serve as a lesson to both local officials and journalists.

For the officials, it’s important to remember that this is the public’s business. Only on rare occasions should the public be excluded from it.

And a red flag should always go up when officials try to keep something secret. Journalists should always ask: Just what are they hiding?

Out of the shadows, Mass. quasi-public agencies and the need for budget transparency

May 26, 2010 by

By Deirdre Cummings, legislative director tax and budget policy, MASSPIRG, Boston, Mass.

 Those who know Massachusetts government are accustomed to the fact that many of the Commonwealth’s public functions are performed by “quasi-public agencies” such as independent boards or commissions that are funded by their own fees, combined in some cases with general funds; and governed by their own independent bodies that are not directly answerable to the legislature or governor. You’d think that there would be an official tally of how many such agencies exist, and how big their budgets are. You might also think that, given their exemption from normal channels of public oversight, quasi-publics would need to be more transparent than other parts of government.

 You’d be wrong. Our quasi-public agencies fail to disclose basic spending information online despite the fact that their combined budgets represent 33 percent of additional government activity that is not included in the budget or covered by the normal oversight process. A new report by MASSPIRG Education Fund, Out of the Shadows, Massachusetts Quasi-Public Agencies and the Need for Budget Transparency, provides the first combined tally of the budgets of quasi-public agencies and their level of budget transparency.

 Massachusetts’ 42 quasi-public agencies operate largely under the budget radar despite performing vital government functions, some which have been on the front pages recently.

 Increasingly, the public, including lawmakers, local officials and the media expect that all government expenditures will be posted online and easily accessible through a Google-like search function. The good news is that the House recently adopted language as part of its fiscal year 2011 budget that includes transparency for quasi-publics as part of broader spending disclosure and accountability reform that includes spending on tax credits. Attention will now move to the Senate.

The new report calls for a number of reforms, including comprehensive disclosure, creation of an oversight board for quasi publics, and the requirement that contracting at quasi publics to be done through a transparent process like Comm-Pass, the state online procurement system, to name just a few. For more, see executive summary of report.

Censorship and the Phoebe Prince bullying case

May 25, 2010 by

By Bill Newman, director of ACLU’s western Massachusetts office, Northampton, Mass.

The suicide of Phoebe Prince, the reports of bullying at the South Hadley High School, and the criminal indictments of six students. These emotionally charged issues, exponentially exacerbated by intense local and national media coverage, have roiled this western Massachusetts town.

At the beginning of the School Committee meeting of April 14, the first after the criminal indictments, the committee chair announced his ground rules for discussing the Phoebe Prince case during the public comment session.  When a speaker, Luke Gelinas, used his time to discuss bullying and criticize school officials, the chair ordered the police to remove Mr. Gelinas from the microphone and the meeting.

That censorship received widespread condemnation and although the School Committee has not yet formally responded to the ACLU’s demand to cease its censorship, the ACLU as a practical matter has received an answer.  During the public comment session of the subsequent School Committee meeting, its critics were not silenced.  They fully expressed their views, and no one was tossed out.

As the Daily Hampshire Gazette, the county’s newspaper of record, editorialized, “Our free speech protections can make for some ugly interaction[s] . . . .  Fortunately, the First Amendment protects the spoken opinions of all of us, no matter how unwelcome or obnoxious at times.”  The paper correctly noted that a public board “can set their own rules on the scheduling of Public Comment and the length of time a speaker is allowed, but cannot censor the message itself.” 

Censorship of both content and viewpoint is exactly what happened at that April 14 South Hadley School Committee meeting.  Such censorship, such discrimination based on viewpoint and content, is precisely what the First Amendment forbids.

 There is an antiipatable irony to the attempted censorship.  Instead of quieting the criticism, the gaveling down and removal of Mr. Gelinas engendered far more publicity of his viewpoint than ever would have occurred if the chair simply had allowed the speaker to have his say.


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