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Wednesday, March 27,2013

Behind the electronic curtain

Public officials texting and emailing during public meetings could pose legal problems

by Sam Inglot
“OMG, I think I just violated the OMA,” is a phrase Bill Mathewson likes to use when giving presentations about elected officials texting and emailing, which includes during public meetings. 

That very issue came up during the Lansing City Council’s meeting Monday when Councilwoman Jody Washington criticized her colleagues on the dais for texting during meetings. 

Not only can electronic communications from the dais come off as secretive, they may also be a violation of the Open Meetings Act, said Mathewson, general counsel for the Michigan Municipal League. And such communications may be subject to public disclosure through the Freedom of Information Act. But because there’s nothing in the law that says, “Texting is a violation,” it’s up to individual circumstances, he said.

If a quorum, which in the Lansing City Council’s case is five members, starts deliberating toward a decision on a public issue via email or text, it could be considered an open meetings violation because the discussion should be happening in a public meeting, Mathewson said.

The Open Meetings Act sets rules for meetings of public bodies that are designed to ensure openness and transparency in government. 

“We’ve experienced a communication revolution, which is good in a great many ways,” Mathewson said. “But we need to keep in mind that there are these two, decades-old laws, FOIA and OMA, which were written at a point in time when this type of communication wasn’t in place or envisioned. It’s also important that everyone keep in mind the perception that is created when this sort of communication is occurring in a public meeting.”

Although she says she doesn’t do it, Washington said her colleagues are “constantly” texting and emailing from the dais, which worries her that an open meetings violation could be on the horizon. Washington said Don Kulhanek, while acting as the interim city attorney, advised the Council two weeks ago that texting during a meeting could be a possible violation of the Open Meetings Act. 

“This is something that has bothered me ever since I came on to the City Council,” Washington said in an interview. “I truly believe in transparency and openness in government. As far as my colleagues go, always texting among each other is not in keeping with the Open Meetings Act. I’ve addressed it a few times, but people don’t listen.” 

Washington brought up the issue Monday, one week after 4th Ward Councilwoman Jessica Yorko was texting multiple Walnut Neighborhood residents during a Committee of the Whole meeting on Niowave Inc.’s tax abatement request.

“If I see it going on, I will not be part of a violation of the Open Meetings Act and I will leave,” Washington announced Monday night from the dais.

But communicating with constituents, rather than fellow elected officials, is more of a gray area and may not be an open meetings violation, Mathewson said, largely because there isn’t case law to follow. But the messages could be subject to FOIA, he said. He suggested that public bodies follow the guidance of their attorneys.

Yorko said she’d rather hear legal advice from the city attorney, not Washington. She said she was texting Walnut residents at the meeting about her intentions to table Niowave’s personal property tax exemption. She said she doesn’t see a problem with Council members’ texting or emailing each other or constituents during public meetings, as long as they’re not deliberating on a decision.

According to the Michigan Open Meetings Handbook, a public official who intentionally violates the Open Meetings Act can be subject to a misdemeanor and a $500 fine. A court could also invalidate a decision made by a public body if a violation has occurred. 

In 2009, the Ann Arbor City Council unanimously agreed to ban electronic communications between City Council members during public meetings. Washington thinks Lansing should follow suit and ban emailing and texting from the dais. 

“I absolutely do,” she said. “Clearly some of us just can’t control it. That way there’s no question of the Open Meetings Act being violated.”

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