The News Journal: Senate to hear FOIA bill next

The News Journal
Friday, May 15, 2009

DOVER -- In a bold parliamentary move, Sen. Karen Peterson forced her colleagues' collective hand Thursday and won a promise that, for the first time in years, legislation to subject the Legislature to the open-meetings law will be heard on the Senate floor.

House Bill 1 will be considered June 2, under the deal Peterson brokered Thursday with Senate Majority Leader Anthony DeLuca, D-Newark East. Peterson said she is confident she has the votes to pass the bill, which would subject the General Assembly to the Freedom of Information Act that it exempted itself from decades ago.

Unbeknown to most senators and the leadership, Peterson had secured the necessary votes to suspend the Senate rules and force consideration of the bill.

She made her motion and it passed, backed by the votes of Sens. Colin Bonini, R-Dover South; George Bunting, D-Bethany Beach; Brian Bushweller, D-Dover North; Catherine Cloutier, R-Heatherbrooke; Dori Connor, R-Penn Acres; Margaret Rose Henry, D-Wilmington East; Michael Katz, D-Centreville; David Sokola, D-Newark, and Liane Sorenson, R-Hockessin.

"You could feel the adrenaline just go up. It was out of the blue," said Mark Brunswick, a lobbyist for the Center for Community Education.

Taken aback by the move, DeLuca immediately made a motion to recess for party caucus. That motion passed on an 11-9 vote.

When they emerged, Peterson announced she had won a commitment from DeLuca that the bill will be the first item on the agenda June 2, when the Legislature returns from a two-week Joint Finance Committee break.

Peterson said later that she was tired of waiting for the Senate to act on the FOIA bill, so she decided to force the issue.

"I've had this bill in seven years and been promised time after time, 'We'll do it soon.' 'We'll do it in June.' 'We'll do it next session.' I just got tired of waiting. It was time," a jubilant Peterson said after the session ended.

The bill had been on the Senate's "ready list" since the House passed it in March, but DeLuca said Peterson accomplished little by forcing it to the floor.

"When we came back, [Senate President Pro Tem Thurman] Adams was going to put it on the agenda anyway," DeLuca said. "Is this effectively going to change any votes? No."

DeLuca said he and others were working on a possible amendment to standardize the procedures the House and Senate will use when they receive a FOIA request, hence the delay in putting the bill on the agenda.

However, some speculate that HB 1 was being held as a bargaining chip the Senate could use against the House.

Asked whether the bill would have made it to the Senate floor without her parliamentary maneuver, Peterson replied drily, "In my lifetime?"

A motion by a member to suspend the rules can be seen as a rebuke to the leadership, so the tactic is rarely employed and seldom succeeds.

However, the leaders of both houses frequently suspend rules to speed passage of critical bills or to avoid the committee process, particularly toward the end of the session.

In fact, DeLuca and the Senate leadership employed that tactic just three days ago, when they bypassed the committee process to propel a sports betting bill through the Senate and upstairs to Gov. Jack Markell for his signature.

Several members objected to that move, prompting a response from DeLuca that senators were involved in the process while the gambling bill was being vetted in the House. "We don't operate in a vacuum," he said then.

HB 1 would open most records and meetings in Legislative Hall, including the critical Joint Finance Committee and Bond Bill Committee meetings, where the budget and capital-spending bills are drawn up. Party caucuses would remain closed, and legislators' e-mails would not be subject to FOIA.

If the bill passes the Senate and is signed into law, it will come too late to open most of the financial process for the budget year that begins July 1. The JFC's budget mark-up process begins Monday, and that committee frequently closes its doors to the public, opening them only to announce actions it took in private.
Peterson's maneuver, though, gained praise from open-government advocates and House leaders.
"I think the suspension of rules sends a real message to the leadership," said John Flaherty, an open-government lobbyist for many years.

"It's been a long time since suspension of rules [without the consent of leadership] passed in here, maybe 14 or 15 years," Flaherty said. "It's a good day for the people of Delaware."

"I heard there was a little excitement in the Senate today," House Speaker Robert F. Gilligan, D-Sherwood Park, the prime sponsor of HB 1, said with a twinkle in his eye. "If it's considered, it will pass."

CORRECTION:
SENATE FOIA BILL: A story Friday about the state Senate's plans to debate House Bill 1 on June 2 inadvertently omitted the name of one of the senators who voted to suspend rules and have the bill, which would open the General Assembly to the Freedom of Information Act, heard immediately. Sen. Robert Marshall, D-Wilmington West, also voted in favor of suspending the rules. May 16, 2009