As we spoke of our Attorney General yesterday, we noted that his notion of transparency is one that sometimes comes with a price tag.
We now see that Mike Cox has joined with a number of other state AGs in asking the 5th U.S. Circuit Court of Appeals to revisit a decision last month by a three-judge panel of the appeals court that opens the door to private decision making by public officials.
The panel ruled in favor of two members of the City Council of Alpine, Texas, who had four years ago taken part in an e-mail discussion of city business. The two were investigated by the local district attorney but their indictments were dismissed by the prosecutor.
Still, the council members sued in September 2005, asking a federal judge to declare that the criminal penalties of the Texas open meetings law violated their First Amendment free-speech rights.
U.S. District Judge Robert Junell ruled that the First Amendment "affords absolutely no protection to speech by elected officials made pursuant to their official duties."
His ruling was appealed, and the three-judge appeals court panel reversed him last month, asking Junell to justify his ruling that the council members violated the law by discussing a city project in an exchange of e-mails.
The brief filed by the groups of AGs reads in part, "The heart and soul of an open meetings law is to channel government officials' communications primarily by subject matter. Consequently, the unprecedented level of constitutional scrutiny the panel decision prescribes would impact the central function of any open meetings law."
Michigan’s Open Meetings Act does not appear to address email, so we can assume that many council members, as well as other officials, conduct clandestine but public business via such missives. It would be nice to see that glaring lack remedied. Any takers?
Cox has been fair in most of his rulings on open government, showing that he firmly understands the laws and will, in most cases, render a decision based on that grasp. This notwithstanding of the $143,000 charge for records requested by a political foe, Mark Brewer, as we discussed yesterday.
Cox is right on in joining this collective of AGs in hopes of examining the 5th panel’s ruling.