The scene on Wednesday evening February 9, 2010 at the Chestertown Municipal Center was an old style auditorium. A shiny pipe structure framed the stage at either side, with stage lights clamped randomly to each vertical structure. Hanging by wire from the ceiling was an additional section of pipe truss work with black stage lights affixed. These lights were off, but the dramatic effect was present, for before the assembled four dozen concerned citizens, town officials, various members of the press and political activists stood Robert Freeman, calmly addressing every nuance of secrecy and openness in government.
Needless to say, the interest in this event was heightened by the recent decision by Warren County Judge David Krogman limiting access to documents from a volunteer fire company, and then the well quoted contrary opinion of Robert Freeman, then the announcement of a meeting for Freeman to speak in the Horicon town hall, and then the cancellation of that invitation by the Horicon Town Board after holding an illegal meeting.
Robert J. Freeman is executive director of the Committee on Open Government, an agency under the New York State Department of State. This agency has been a one- or two-person office for thirty years. Freeman has held the top post for all these years.
Freeman spoke about your right to know the workings of government under the Open Meetings Law and the Freedom of Information Law. Interesting questions interrupted and guided his talk. He was comfortable with every inquiry.
Are e-mails a violation of the open meetings law? Are they accessible? The key here, he said, is that e-mails do not represent instantaneous communication and are more like old-time inter-office memos; they may be ignored for days. For that reason they do not constitute a meeting, but a conference call or a chat room would constitute a meeting.
From the audience, Carol LaGrasse said that the Adirondack Park Agency commission goes into executive session to discuss litigation, but they do not state clearly what case they are discussing. Freeman answered that a motion to go into executive session must have sufficient detail to know what they are discussing. The rationale for an executive session to discuss litigation is to not tip the hand as to strategy in a law case, but the fear of future litigation is not sufficient for an executive session.
Another frequently recurring reason that is given for executive session is to discuss "personnel" issues. Freeman said that "personnel" issues are not in the Open Meeting Law; "personnel" is not a legal reason for an executive session. Freeman then cited a paragraph on page 14 of the booklet he gave to each attendee, Your Right to Know. A board can go into executive session to discuss medical, financial, credit or employment history of a particular person, or the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation. The distinction is in the specifics, who and what is being discussed vs. "personnel" issues, which is not a clear reason.
What if a board goes into executive session for one issue and then discusses another issue that was not stated? Freeman said that it is not contrary to law for a board member to reveal the contents of an executive session, especially if the subject was not authorized in the motion to go into executive session.
What if the board mumbles so that the audience cannot hear them? Freeman said that the public has a right to attend, listen and observe a government board. There is an obligation of the board members to speak loud enough to be heard. Freeman encouraged the audience to violate the rules to be quiet and to call out, "Speak up, we can't hear you."
Responding to a question from the floor on the recent ruling of Judge Krogman pertaining to the availability of records of a volunteer fire company, Freeman said that volunteer fire companies are not government, but that in the case of Westchester Rockland Newspapers vs. Kimball the court ruled that the their entire records were available because volunteer fire companies historically perform a governmental function and would not exist otherwise. Freeman said that it appears that the judge did not consider the Westchester Rockland decision and that this question has been a non-issue since 1980.
Questioned about emergency squads, Freeman said that the court has said that they are covered under the Freedom of Information Law if they have a contract with the government.
Asked his opinion about suing the courts to enforce requests under FOIL, Freedom of Information Law, Freeman said that using the courts is the last option. He advised going to his "opinions" on the commission's website.
"A quote from me sometimes forces compliance," he said. "Use me until you use me up."
Freeman believes that people in government want to comply with the law. He said that each year his office does ninety public lectures like the one that night.
The meeting ended about 9 p.m. While the people milled around afterwards, I asked Horicon Supervisor Ralph Bentley how many of his councilmen attended the evening's talk. He said that none of them came, but that he had picked up a copy of the Your Right to Know booklets for each of them.