Open Minds About Open Meetings
By NICHOLAS JOHNSON
Des Moines Register
February 18, 2005
Iowa also needs some open minds regarding open meetings.
"Open meetings" are meetings of any government body headed by a group, such as your city council. Iowa law says they have to let you and reporters attend.
You have a stake in open meetings, even if you never go. Transparency increases citizens' confidence in democracy. And journalists can tell us what goes on.
Federal and states' open-meetings laws are sometimes called "government in the sunshine." Clearly light is preferable to the forces of darkness. But that doesn't mean the law can't be improved.
Agency members should be able to have confidential conversations about issues unrelated to pending, or contemplated, decisions. And they should be offered, as an option, the procedure used by courts: written, reasoned opinions.
The Iowa Legislature says the law's purpose is to reveal what government is doing and why: "the basis and rationale of governmental decisions."
Judged by that purpose, the law requires too much and too little. Agencies are not required to reveal the "basis and rationale" of their decisions in any form, written or oral. All the law requires is that they let the public and journalists listen to them talk.
Anyone who's served on a school board, as I have, knows the distinction between open discussion and deliberation about decisions.
Moreover, the law is irrational in design and inconsistent in application.
There's no open-meeting requirement if a quorum (four of a seven-person commission) is not present, even if members are hearing from special-interest pleaders.
On the other hand, it does cover their casual general conversations unrelated to pending decisions if a quorum is present.
It exempts deliberations among top executives within single-headed agencies. For example, Iowa's secretary of agriculture can discuss decisions in secret with her deputy and division directors.
It doesn't cover courts. Even as a law clerk to Justice Hugo Black I couldn't attend Supreme Court justices' deliberations. No one can.
Isn't public confidence in the courts important? Of course. But there's an alternative to open meetings: reasoned opinions.
The public's confidence in courts comes, not from their open meetings, but from judicial opinions that reveal the "basis and rationale" of their decisions.
Our nation's Declaration of Independence didn't gain popular acceptance from being drafted in open meetings. It was because of its recognition that "a decent respect to the opinions of mankind" requires a written, reasoned explanation.
The Constitution requires that a presidential veto be accompanied, not by media access to presidential deliberations, but by a written statement of "his objections."
Why should a small-town school board be held to higher standards than the authors of the Declaration of Independence, U.S. president and Supreme Court justices?
Open meetings to hear public input serve a purpose. So do meetings with agenda items, decisional documents and votes.
But the public also needs the creative, out-of-the-box thinking - unrelated to pending decisions - that multiheaded agencies are designed to produce. And it's far more likely to come from the collegiality and relaxed informality of creative conversation than from formal open meetings.
We give this freedom to our appellate court judges, the administrators of single-headed agencies, grand juries and legislators. Why not agencies?
As for their decisions, few agency members will want to opt for written opinions. They have too many decisions to make, and neither the necessary inclination nor leisure to do so. They will continue today's open-meetings procedures.
We shouldn't require written opinions. But agencies willing to provide them, as an option, should be given some of the leeway we give courts for closed discussions.
Let's serve the purpose of
Iowa's open-meetings law: revelation of the "basis and rationale" for decisions.
The law does not now require that. Open meetings don't produce it. Reasoned
NICHOLAS JOHNSON, formerly a member of the Federal Communications Commission, expands on this subject in the current Drake Law Review and teaches at the University of Iowa College of Law. His full essay can be found at www.nicholasjohnson.org.