Saturday, January 21, 2006

“Asperational” policies and other nonsense

This posting, related to the previous one, shows my e-mail exchange with Mark Tammen, so you, too, can check out the legal reasoning.


01/19/2006 5:01 PM

Cliff, John, and Mark,

I have flown from Seattle to Louisville to observe the ACSWC meetings and am finding GREAT resistance to the Open Meeting Policy here. Already I have been repeatedly denied the opportunity to read anything before the groups, sitting through a five-hour morning and then two meetings with it made abundantly clear that I cannot see the documents they are discussing. I had to truly ARGUE my way into being able to be present in one of the working groups and was only grudgingly allowed after I made a strong, insistent case from the Open Meeting Policy.

I need your help: Should not a meeting that is truly open allow for observers to see and comprehend the documents being discussed? There is no good reason to keep materials secret, and none of the materials fall under the exceptions to the Open Meeting Policy. It is simply material they don't want others to see--which is why we have an Open Meeting Policy to deny such urges.

This is not the way an open meeting should be!

We are meeting tonight (Thursday) and the next two days. I think this is intolerable, and I request that you contact Nile Harper and Chris Iosso to instruct them that they cannot hide their business as they have.

Thanks. I'm steaming at a table in the back of the room.

Jim Berkley

[Later we talked on the phone for 70 minutes to fully explain the situation and think through the options. Then the following answer came by e-mail, after the evening plenary meeting was concluded. Tammen wrote it in haste during off hours for my benefit before meetings resumed the next morning, so thus it contains some understandable typos. It is “thinking out loud” rather than formal policy, and shouldn’t be considered as a formal reply, but it does render a decision that is notable in its leniency on upholding the clear spirit of a General Assembly policy. That decision allowed ACSWP to continue withholding materials on Friday.]

Thu 1/19/2006 10:22 PM


Our network seems to be back up and running, so I can write from my computer rather than a blackberry screen. You and I have had an extensive conversation. I have now had a chance to review the Open Meetings Policy.

Since you said you have access to wireless, I'll try to respond in this format in hopes you can have this opinion in time for tommow's meeting. I'll cc Evan as well.

You have sought my advice on two issues surrounding the interpretations of open meetings policy.

1. You have sought my interpretation as to what “meetings” are covered under the policy?

It seems to me that any gathering where deliberation and consideration are taking place would be covered by the policy; whereas writing teams from committees that are drafting material for the committee (or subcommittees with delegated authority) would not be subject to the policy.

So a team that is working together to put thoughts on paper for the committee (or subcommittee) to consider and act upon would not be a “meeting” within the understanding of the policy, but the group that considers that work product to would be subject tot the policy.

2. You have also sought my opinion as to whether the very expansive language used in paragraph #1 of the policy [hyperlink added] implicitly requires that a GA committee share the documents that the committee is considering with observers of the meeting.

I agree that words like “conducting their business with a spirit of openness and vulnerability to public scrutiny” are expansive and very broad, yet it seems to me that they are likewise asperational.

In my experience the norm in the GA entities, committees and such is that materials considered are made available for visitors to use in following the discussion. I believe such a practice to be entirely consistent with the underlying ethos of the Open Meetings Policy. I understand that such transparency surely fosters greater trust and makes the policy more helpful to visitors such as yourself.

However you have sought a formal opinion from our office (under section 7 of the policy). I do not believe the policy, on its face, explicitly requires that a GA committee, entity, and the like, to provide copies of materials being considered to visitors such as yourself.

Seems to me that the General Assembly could surely be asked to amend its Open Meetings Policy to make such distribution of materials by it committies and entities an explicit provision in the policy, but until it does I do not believe our office has any basis to import such a right on the basis of the broad strokes of paragraph #1 of the policy.

You may surely share this note with Niles Harper and Chris Iosso, but as you can see from my discussion above, I don't believe the policy is explicit enough for us to issue a formal opinion declaring the policy requires the distribution of written materials being considered by ACSWAP.

Sorry I'm no more help.



[In my disappointment at the response, I replied as follows.]

Fri 1/20/2006 1:12 AM


Thank you for such a quick reply “after hours,” but you deliver surprise #2 for me today--the first being that I gave up four days of my life, flew 2500 miles, and spent about $600 to be blanked out of what ought to be an open meeting.

One further question: Does your opinion give meeting leaders the positive authority to DENY access to the written materials altogether, rather than only permission not to go out of their way to provide the materials? In other words, in an open meeting, can the leadership actually BAR observers from even reading a copy of the written materials under open consideration, taking pains to PROHIBIT such reading? Wouldn't that lend the “open” adjective in “open meeting” a most curious reading?

That would also certainly seem to fly in the face of the plain reading of the policy’s wording about a church member’s “basic right [note “RIGHT!”] to know about the work done and the decisions made by entities within the church.” There is simply no way to KNOW about work and decisions one is not even permitted to read.

In addition it absolutely flies in the face of church leaders’ “basic RESPONSIBILITY to honor that right by conducting their business with a spirit of openness and vulnerability to public scrutiny.” There is nothing remotely open and vulnerable about documents assiduously kept secret!

And the day that groups only need to “aspire” to well-stated General Assembly policies--rather than explicitly follow them--is the day we quit being Presbyterian in polity and the day you open the door to unending mischief.

I am deeply disappointed in your reading, which seems indefensible to me. General Assembly had approved a fine Open Meeting Policy, which you now seem to have rendered violable by any entity that would just rather not have the church know what they are doing.


Jim Berkley


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