The measure is the latest battleground in the fight to either strengthen -- or carve out exceptions to -- open-government laws.

09:05 AM EST on Monday, March 13, 2006

BY KATHERINE GREGG
Journal State House Bureau

PROVIDENCE -- Until lawmakers intervened last year, it was accepted practice for board members of the Rhode Island Airport Corporation to phone in their votes and comments from Florida -- or wherever else they might be working or vacationing.

Board member Joseph L. Larisa recalls taking part in one such public meeting, by telephone, from outside a courtroom.

He recalls another commissioner calling in from his winter retreat in Florida.

State lawmakers banned meetings-by-telephone last year, after a surprising December 2004 advisory opinion from the attorney general's office to the Public Utilities Commission not only shined a light on the practice -- but also suggested it was permissible.

The ban went into effect on June 28, 2005.

But Larisa has persuaded Sen. Daniel DaPonte, D-East Providence, to introduce a bill (S2800) to again allow what few knew was ever allowed under the state's Open Meetings Law.

As written, DaPonte's bill would allow any member of any public body in the state -- including city and town councils, school committees and zoning boards -- to attend and vote "by telephonic communication" at any "properly posted" meeting that already has a quorum.

The only proviso: that the voice of the person "participating by telephone" be broadcast by some means, such as a speakerphone.

"I haven't heard anyone say why that shouldn't happen," Larisa said. "The only difference is their body isn't physically in the room."

His argument notwithstanding, the bill has become one of the latest battlegrounds in a continuing fight to either strengthen -- or carve out new exceptions to -- the state's open-government laws.

Many of the bills are perennial entries that go nowhere.

They include the annual effort by the Association of School Committees to free the committees from having to advertise their meeting agendas in their local newspaper. Internet postings would suffice.

Rep. John J. Loughlin II, R-Tiverton, hinges his argument on the "unique circumstances" of one of the towns in his district: Little Compton.

"We are served by a weekly newspaper, so in order for us to get an agenda posted in a timely manner it has got to be done 10 days in advance, and that gives the School Committee very little flexibility to deal with issues in a real-time manner."

"I mean, we can't afford advertising in the Providence Journal," Loughlin said.

But the reception was no warmer than it was in years past when the Senate Judiciary Committee's considered a Senate version last week.

Acknowledging his own community's school committee "would [probably] want to throw me out the window head-first," Sen. Joseph Polisena, a Johnston mayoral candidate, said it would be "an injustice."

"There remains a significant digital divide in the state and in the country where many people do not have access, or easy access to the Internet so the current means of communication are absolutely critical," said Steven Brown, executive director of the Rhode Island Affiliate of the American Civil Liberties Union.

League of Women Voters lobbyist Greta Abbott suggested a possible compromise: lifting the newspaper advertising requirement, but requiring communities to have a hotline for citizens to call if they want to know what's coming up.

New this year are the spate of bills introduced in the wake of another opinion by Attorney General Patrick C. Lynch's office that tongue-tied officials across the state.

Issued in response to a situation in the Exeter-West Greenwich school sistrict, the opinion stated that officials can listen to the issues citizens raise during open-forum segments of their meetings, but cannot respond or ask questions. The gyst: "Actively engaging in discussion or comment . . . upon items not properly or timely noticed to the public" would violate the law.

The ACLU's Brown told the Senate Judiciary Committee the underlying concern was "right," specifically: that teleconferencing "could be used as a way to circumvent" public-notice requirements.

"The problem was, it went too far," Brown said.

Brown and H. Philip West, executive director of citizens' advocacy group Common Cause, said they liked best the solution proposed by Rep. Leonidas P. Raptakis, D-Coventry. The Raptakis bill would prohibit public officials from voting or giving their opinions on matters "addressed in the open forum," but it would allow a "limited question-and-answer exchange and limited dialogue."

More controversial is the effort to allow voting by speakerphone.

"I don't know what the harm is," says Richard Licht, legal counsel to the state Airport Corporation, if "a volunteer on a quasi-public wants to take time from their vacation or business trip to participate.

"I don't think somebody is going to be sitting at home in their pajamas watching TV and saying, 'You know, I'm going to phone in today and not show up.' I think there would have to, obviously, be a legitimate reason why they couldn't be there," adds DaPonte.

In response, however, to inquiries about how this might work for the legislature itself, DaPonte said he is likely to rework the bill.

He said the new version may restrict voting in absentia to "quasi-publics" -- independent agencies such as the Airport Corporation and the state Economic Development Corporation -- where people are often appointed because of their expertise in a field.

"Let's face it. When you look at the business world and the corporate world, some of the biggest deals done are done over the phone or over Microsoft live-meeting . . . Why should we, as a state government, a quasi-public -- or whatever -- still be stuck in the past?"

But critics pounced.

A spokesman for the attorney general's office said Lynch has not yet taken an official stance on the legislation, but "I don't think, for a minute, you can dismiss the symbolism."

"If the idea of these open-government laws is to ensure accountable, responsive government," then the "symbolism of somebody phoning it in from Florida doesn't give people much faith in their government," said spokesman Mike Healey.

"If they want to participate, they should be there to see the public, see the give-and-take of the meeting and participate, in full," the ACLU's Brown said. "It is not the same thing, being on vacation and pretending to represent the public, while you are on a beach reading a book."

But just last week, the attorney general issued an opinion that added a new wrinkle.

The office was asked for its opinion on whether the members of five Department of Human Services advisory committees made up, for the most part, of people with "significant disabilities" such as blindness, paraplegia, muscular dystrophy, multiple sclerosis and head injury could still participate by teleconference from "time to time."

Assistant Attorney General Christy Hetherington replied: "We do not believe the Open Meetings Law permits the type of carte blanche rule you seek," but "we will examine specific situations . . . as they arise."

Bob Cooper, executive director of the Governor's Commission on Disabilities, told a Senate committee the opinion effectively makes it "illegal" for handicapped appointees to serve.

A group of senators led by Frank Ciccone, a Providence Deocrat, quickly introduced a bill to allow anyone who has "a disability" of any kind to participate by phone.

Last but not least, is the renewed drive by AccessRI -- a coalition that includes Common Cause, the ACLU and the Rhode Island Press Association -- to make it easier for members of the public to get the many public records to which they are entitled.

Included in the two-bill package introduced in the House by Elizabeth Dennigan and the Senate by J. Michael Lenihan are proposals to: require that most records be made available for inspection within three days, reduce the maximum response time from a maximum of 30 days to 10, increase the maximum fine for "willful" violations from $1,000 to $15,000, and clarify, once again, that police arrest reports are public.

Offering the perspective of a working journalist, Newport Daily News managing editor Sheila Mullowney said agencies "routinely" take the 30-day maximum to respond to a request. "They know the law, they know how to take advantage of it."

In the digital age, said Mullowney, who is also the head of the Rhode Island Press Association, an outside limit of 10 days is "not unrealistic" or "burdensome."

The backers are also seeking to clarify "what has to be the most convoluted public-records law in the nation," Mullowney told the Senate Judiciary Committee.

Specifically, they want to inject into the law a notion that has been implicit in the laws of many other states and the federal government for decades: that most government records are open unless their disclosure would amount to an "unwarranted invasion of personal privacy."

At the federal level, Common Cause's West said, words such as these have helped pry loose, from balky government agencies, hugely important information about such things as wasteful spending, potential health risks and discrimination against minorities and people with disabilities.

But Cooper tried to scare the senators out of putting any such "weasel words" in the law.

He talked about bloggers putting grade-school records on the Web, about elderly and poor people not applying for government help out of fear of exposure.

Sympathizing, Sen. Charles Leveque said: "We don't have a right to be cavalier with that information."

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Editor's note: March 12 to 18 is Sunshine Week, an initiative led by the American Society of Newspaper Editors to promote the importance of open government and freedom of information. This week, The Journal will publish stories on open government issues. Other media outlets, libraries and schools also are observing the week. More information is available at sunshineweek.org