It's my understanding that public officials can currently skirt the intent of Open Meeting laws by
using e-mail. Does anyone have further information on this?
It's been quite awhile since I looked at this issue, but I believe there's a prohibition against "serial meetings" -- where elected officials meet in small groups, sequentially, to prevent reaching a quorum, and thereby triggering a public notice requirement. (If memory serves I don't think this is a statutory requirement per se -- it comes from a court opinion interpreting the statute).
E-mail certainly could qualify as a serial meeting under this interpretation of the statute.
However, the primary purpose of the Open Meeting law is not make all "meetings" open, but to make sure that no official act can be conducted in the absence of public notice. In other words, no ordinance, vote or agreement is valid unless and until it occurs at a public meeting. The actual text of the Open Meeting law is this:
"All meetings, including executive sessions, must be open to the public . . . when required or permitted by law to transact public business in
a meeting" Minn. Stat. 13D.01, subd. 1.
For example, if you recall the contentious reorganization of the City Council after the 2001 election, Paul Ostrow circulated a document for his colleagues to sign which indicated their written commitment to vote for his plan for organizing the council. The reason that this document did not violate the Open Meeting law was precisely because the council members who signed it still had to vote at the public meeting in order for the plan to become an official act. Which, of course, raised the possibility that one or more of the signatories could change his or her mind after signing it but before voting at the public meeting.
Now, instead of having an open vote on council organization, suppose that Ostrow simply had submitted the document to the City Clerk, with seven signatures, as the "official" organization of the council. That would have been a violation of the Open Meeting law.
My point is that private conversations, even private written agreements, between elected officials about public business do not trigger the open meeting law because those conversations and agreements **in and of themselves** do not constitute an official action.
Back to e-mail: an e-mail that reads "The proposed ordinance is amended if a majority of committee members signal approval via e-mail" -- that's an open meeting violation. But an e-mail that says "A majority of the committee have agreed to amend the proposed ordinance at the next meeting" is not a violation, because the proposed ordinance is not actually amended unless and until the committee votes to do so at the next meeting.
Pushing the Open Meeting law to cover all communications (including e-mail) would be unwise -- it would stifle discussion among elected officials about public business. For example, I know of some City Council members who have in the past put lunch appointments with their colleagues on the public calendar, if for example, three of them were having lunch and those three happened to make a quorum for a particular subcommittee on which they were all members. IMHO this is an overreaction, but I can understand why an elected official would act that way - to avoid even the appearance of an open meeting violation.
It might be worthwhile for the City to clean up the ambiguity, perhaps with an ordinance stating no act or decision can constitute official public business unless it is conducted and recorded in a procedure specified by the City Clerk. (There may already be such an ordinance, I don't know).
Generally speaking, though, the bark of the Open Meeting statute is worse than its bite.
Greg Abbott
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Sent from the computer of:
Greg Abbott Linden Hills 13th Ward
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