Remember that old saying “just because you’re paranoid, it doesn’t mean they’re not out to get you”? Well, that was the saying that ran through my mind after hearing back from Middlesex Assistant DA Robert Bender. I wrote to the DA after getting the down-lo on the Selectmen’s new e-mail policy, the subject of a BCH cover article a couple weeks back. The policy, as explained in that article (and corroborated by Angelo Firenze in a one-on-one discussion) was that direct Selectman – constituent e-mail exchanges were being jettisoned, for fear they might violate the State’s Open Meeting Laws. I blogged at length about the issue in this post on April 14, so I won’t bore you with the details again. Suffice it to say that the main concern was that e-mail can be easily forwarded or posted online after it is sent. There was fear that e-mail discussions — read or sent to two or more Selectmen by their constituents, might be construed as a de-facto quorum of the Board of Selectmen that was taking place out of public view — a violation of the Open Meeting Laws passed in the 1970s.
In short, I thought that was a bunch of hooey — given that information from verbal or phone conversations could just as easily be passed, but that nobody was suggesting that Selectmen not be able to take phone calls or talk to town residents on the street about matters before the Board. My discussion with Selectman Firenze also convinced me that there were other issues at work in fashioning the new policy: e-mail fatigue on the part of Selectmen, and a lack of clear policy from the Town on what computer resources (personal or Town owned) the Selectmen should be using (if any) to do their job, etc. etc. Bringing up the Open Meeting Law was more an effort to whitewash those other issues than anything else, I was willing to bet.
As it turns out, however, the Selectmen were right to be wary of running afoul of the Open Meeting Laws, which were written before the advent of e-mail, but which the State is reading broadly, and with an eye towards curtailing electronic conversations.
Assistant DA Bender was circumspect in his comments to me regarding the Selectmen’s current and previous e-mail policy (which was basically: ‘respond to e-mail messages to the Selectmen@belmont.ma.us address as you so please’). He would say only that the “District Attorney is directed by the Open Meeting Law to respond to alleged violations of the Open Meeting Law, and this Office chooses to offer advice to governmental bodies on questions of law. The Office also makes available interpretative and educational guidelines.” However, Assistant DA Bender did point me in the direction of passages from the DA’s Open Meeting Guidelines document that suggest that 1:1 e-mail communications between elected officials and their constituents can cause problems under the Open Meetings Law.
Under “The use of telephone and email,” the Guidelines document notes:
“Like private conversations held in person or over the telephone, e-mail conversations among a quorum of members of a governmental body that relate to public business violate the Open Meeting Law, as it is currently drafted, as the public is deprived of the opportunity to attend and monitor the e-mail ‘meeting.‘ Thus, no substantive discussion by a quorum of members of a governmental body about public business within the jurisdiction of the governmental body is permissible except at a meeting held in compliance with the requirements of the Open Meeting Law.”
That’s all well and good and doesn’t tell us anything new — clearly Selectmen debating issues before them via e-mail (or by phone) versus in public would violate the law. However, the DA’s Guidelines go on to say that “members of governmental bodies should also be cautious about communicating via e-mail one on one. This is because private, serial conversations may reach a quorum of members without the knowledge of all participants. Private, serial discussions of public business involving a quorum violate the Law regardless of the knowledge or intent of the parties.”
That would suggest that e-mailing communications about matters before any government body is not recommended. The Guidelines go on to recommend that “whenever a member of a governmental body sends or receives an email message, the District Attorney recommends that a hard copy be created and immediately placed in a central file, where it can be provided as a public record on request. Despite the convenience and speed of communication by e-mail, its use by members of a governmental body carries a high risk of violating the Law. Not only do private e-mail communications deprive the public of the chance contemporaneously to monitor the discussion, but by excluding non-participating members such communications are also inconsistent with the collegial character of governmental bodies. For these reasons, the District Attorney recommends that e-mail messages among members of governmental bodies are best avoided except for matters of a purely housekeeping or administrative nature.”
A number of legal cases are cited as precedent in establishing this policy, including: Harshbarger v. Board of Selectmen of Lexington, from 1989 and McCrea v. Boston City Council, from 2006, in which Boston City Council violated Open Meeting Law by deliberately shuttling councilors in and out of meeting to avoid quorum.
The importance of Open Meeting Laws are well established. As The Globe noted in its article from last week Beacon Hill — which exempted itself from complying with the state’s Open Meeting Laws, is now a place where a great number of decisions that get made behind closed doors. As the Globe noted, ominously, “In an increasingly common practice, even committee votes are frequently taken via Blackberry and e-mail, with the results released later. And because the Legislature exempted itself decades ago from the state’s open-meeting and public records laws, lawmakers often deliberate in private and keep key documents – schedules, e-mails, even some voting records – hidden from public view.”
Clearly, this isn’t the way we want local government going in Belmont. On the other hand, it’s hard to see how it serves the public’s interest to have a vital form of modern communication pushed out of the public realm — turning government even more into a technology backwater where paper pushing (hard copies of every email received) and flesh-pressing win out. Working, two income families in this town have barely enough free time to get dinner on the table and read to their kids before bed. Raising the bar for intercourse with their Selectmen to face to face conversations only is a way of ensuring that this key constituency is little heard from. While I’m waiting for still more clarification from the Middlesex DA, in this case, it seems the Selectmen are right to read the law (and the DA’s guidelines) as they are. But honest dialog with elected officials is in danger of falling into a gulf between an utterly opaque state legislature and fearfully transparent local government. There’s got to be a better way!