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Professor Bernard Bell Provides Expertise in Open Government Issues as Consultant to Federal Study

August 17, 2011 – 
As consultant to the Administrative Conference of the United States (ACUS) on a study of the Government in the Sunshine Act, Bernard W. Bell, Professor of Law at Rutgers School of Law–Newark, is charged with reviewing the operation and effect of the 1976 law promoting public access to the decision-making processes of executive branch agencies. Bell’s credentials as a teacher and scholar, a member of the Administrative & Regulatory Law Section of the American Bar Association, and a former civil litigator with the U.S. Attorney’s Office for the Southern District of New York make him an ideal choice to conduct the study. “I have long been interested in government openness from the perspective of both the citizenry’s need for information and agency officials’ need for confidentiality,” he said.

Bernard Bell   

The Government in the Sunshine Act requires approximately 50 federal multi-member agencies and commissions to hold their meetings in public, subject to several exemptions which allow for discussion of certain types of issues in closed sessions. Many of the independent agencies familiar to the general public, such as the Securities and Exchange Commission, the National Labor Relations Board, the Equal Employment Opportunity Commission, the Consumer Products Safety Commission, and the Federal Communications Commission, are subject to the Act. Similarly the boards of federal government corporations, such as the Legal Services Corporation and the U.S. Postal Service, are also subject to the Sunshine Act.

The Act has largely remained unchanged since its passage in 1976. “Given the many advances in communications, such as the increased reliance on electronic mail, the project provides a good opportunity to consider whether new forms of communication should be addressed in the Act,” said Professor Bell. 

Prior studies have revealed board members’ and commissioners’ reluctance to discuss evolving views and tentative positions in open public meetings. The studies have noted that such bodies engaged in dialogue by exchanging written messages, relying on notational voting (rather than voting at meetings), using staff members as emissaries to work out differences between commissioners, or holding discussions among smaller groups of members that do not constitute a quorum. Potential modifications to the Government in the Sunshine Act that were recommended in 1995 by an ACUS committee were never voted on because the Conference ceased operations that year.

Professor Bell’s research will include surveying agencies regarding their implementation of the Sunshine Act, including their use of notational voting and closed sessions for briefings or brainstorming sessions; their efforts to ensure that public attendees can follow meeting discussions by providing relevant background documents; and any problems that have arisen in the Act’s implementation. Professor Bell envisions interviewing members of federal multi-member bodies and representatives of journalists’ organizations and public interest groups regarding the operation of the Sunshine Act. His study will also include some consideration of state approaches to open meetings laws and the success or failure of those approaches. His report to the Conference is due this fall.

ACUS is a federal agency re-established in 2010 to assist in improving the federal government’s administrative processes through research and development of nonpartisan expert recommendations. Its membership consists of high-level federal officials as well as private sector and academic experts in administrative law and practice.

Government openness lies at the intersection of Bell’s interests in administrative law and administrative process and media law/freedom of speech. One of his major pieces of scholarship, “Legislative History Without Legislative Intent: The Public Justification to Statutory Interpretation” (Ohio State Law Journal, 1999), is premised on the public’s right to know. Professor Bell is currently a vice chair of the ABA Administrative & Regulatory Law Section’s Government Information and Right to Privacy Committee and is hoping to develop a course on government transparency law, encompassing both open meetings laws and open records laws, such as the federal Freedom of Information Act and New Jersey’s Open Public Records Act.

Professor Bell, who also carries the title Herbert Hannoch Scholar, received a B.A. from Harvard and a J.D. from Stanford. He clerked for Judge Amalya L. Kearse of the U.S. Court of Appeals for the Second Circuit and for U.S. Supreme Court Justice Byron R. White and then practiced with Sullivan and Cromwell. Before joining the Rutgers faculty in 1994, he served as senior litigation counsel and, earlier, as Assistant U.S. Attorney (Civil Division) in the U.S. Attorney’s Office for the Southern District of New York.