The ACLU of Rhode Island has called on Attorney General Patrick Lynch to withdraw a recent advisory opinion issued by his office which, the ACLU argues, “has enormous adverse consequences for open government and overturns over 25 years of precedent.” The opinion held that the Open Meetings Act’s restriction on the use of “electronic communication” to hold meetings does not include “telephonic” communication. The ACLU learned of the opinion last week when a legislative committee heard a bill, sponsored by Sen. Frank Ciccone, designed to overturn that ruling.
The advisory opinion was issued in response to a request from the PUC, which is comprised of three voting members, as to whether conducting “a properly noticed meeting with one or two commissioners participating via a conference telephone” would violate the Open Meetings Act. The opinion stated that it would not. This conclusion was reached notwithstanding explicit language in the Act that prohibits the use of “electronic communication” to carry out meetings of a public body. The opinion relied upon various dictionary definitions of “electronic” – including one as recent as 2004 which defines “electronic” as referring to “implemented on or by means of a computer” – and decided that those definitions do not encompass telephonic communication.
In a letter to the Attorney General, RI ACLU Executive Director Steven Brown noted that the Open Meetings Act was adopted in 1976, during an era when the term “electronic communication” was almost certainly not intended by the General Assembly to pertain to communication via computers or even fax machines. “To refer to 2004 definitions to determine the legislature’s intent in using this phrase in 1976 turns statutory interpretation on its head,” Brown wrote. Furthermore, the letter continued, “The advisory opinion fails to even hint at what legislators might have intended by the term, if not telephonic communication.” The ACLU’s letter pointed out that until this advisory opinion was issued, the Open Meetings Act’s reference to “electronic communication” had been uniformly interpreted by prior Attorneys General to include telephones.
Although the opinion attempted to mitigate the untoward natural consequences of its ruling by suggesting guidelines on how such telephonic “meetings” would need to be conducted, the ACLU’s letter suggested that no such measures could “obscure the fact that, under this opinion, a seven-member Town Council could post a meeting to be held at the Chairperson’s house, with all other members at their own homes participating by speakerphone.” The ACLU noted that even with the highest quality phone conferencing technology, members of the public may not be able to differentiate who is speaking at any given time.
Concluding that “the physical presence of a ‘public body’ which is so crucial to the idea of a public meeting disappears when business is conducted by phone,” and citing the advisory opinion’s “enormous” ramifications for the Open Meetings Act, the ACLU urged Attorney General Lynch to withdraw the opinion.