On July 1, Maryland’s Open Meetings Compliance Board issued an opinion stating that the Talbot County Council violated sunshine laws by deliberating via emails and text messages over a period of two days in mid-February.
The issues discussed over electronic means focused on the five council members’ positions on legislation under consideration by the Maryland General Assembly. Some of the messages relayed were one-on-one, others were sent via “reply all” to the other council members.
“Indisputably, the Council did not conduct its deliberations in an open meeting, so the only question is whether those deliberations were subject to the (Open Meetings) Act,” the opinion signed by OMCB Chairman April C. Ishak and members Jonathan A Hodgson and Nancy McCutchan Duden, all attorneys, states.
How evolving electronic communications — instantaneous today over so many different platforms — apply to the Open Meetings Act is just one item on the list of modern technologies disrupting long-standing laws. Think Airbnb versus local zoning for hotels and inns or Uber against the permits and licenses required for taxis and limousines.
To start to address Open Meetings Act requirements, the first key concepts to understand are what constitutes a quorum and what is considered a meeting.
A quorum is achieved when the majority of the members of an elected body are present, such as three of five Talbot County Council members.
Next comes the definition of a meeting.
“A ‘meeting’ occurs whenever a public body’s quorum convenes to discuss public business. An occasion that starts out as a purely social event is a ‘meeting’ only if a quorum uses it to discuss the public body’s business. A gathering at which a quorum discusses public business is a ‘meeting’ no matter where it occurs and no matter whether the quorum takes an action,” states the website of the Maryland attorney general, whose office oversees Open Meetings Act compliance.
There is an important differentiation to note here. If a quorum of an elected council is present at, say, a backyard barbecue, they are not necessarily having a meeting as defined by the act. But should the quorum of members start discussing any governmental business, such as an upcoming vote or budget allocations, a meeting has been held despite the presence of hamburgers and hot dogs.
Next up, “Generally, a quorum can be present either in person or by telephone.” Again, that requires a majority of the body to be included. In Talbot County, where there are five members, two can talk one on one about anything they want. Add a third, and you have a quorum.
Here’s where the issue falls into a decidedly more subjective test.
“Email communications among a quorum, as opposed to between individual members, might constitute a meeting if the emails are so close in time as to show that a quorum was in on the discussion together,” the attorney general’s website states.
Note the use of the word “might.”
The opinion against the Talbot County Council offers some key insights into how the OMCB discourages electronic communications on “substantive matters,” but also shows how far there is to go in providing a solid standard by which elected officials can gauge their email and text habits on matters of public interest.
The opinion states that the OMCB previously agreed that it makes sense for a public body to be able to approve its meeting minutes via electronic means “when waiting for the next meeting would unduly delay the public’s access to that information.”
In quoting that previous opinion, the OMCB states, “’The discussion of other issues by e-mail,’ we stated, ‘serves no goal of the Act.’”
So that opinion opened the door for a public body to deliberate privately on one subject not otherwise allowed by Open Meetings Act exceptions.
Then in the Talbot County case there were references to a 1996 opinion, in which the attorney general at the time — and remember these were the days of dial-up — said that exchanging emails was like an exchange of letters through U.S. Postal Service.
The Talbot County opinion notes, though, that the attorney general in 1996 recognized the potential of technological advancement.
“To be sure, e-mail could conceivably be the medium of exchange when a quorum of a public body has convened. If the members of a public body are able to use e-mail for ‘real-time’ simultaneous exchange, the result would be different. Then the analogy would be to a telephone conference call, the hallmark of which is the capacity for immediate group interaction and which constitute a ‘meeting’ under the Open Meetings Act,” the attorney general wrote in 1996.
That is certainly where we are today with email available on much more mobile technology — phones and tablets — than was present in 1996. Yet, the OMCB stated in its Talbot County opinion that in 2016, board members “discussed whether the Act should be amended to address electronic communications,” but instead opted to use the act’s “flexibility to address the issue on a case-by-case basis.”
The OMCB concluded that the Talbot County Council violated the Open Meetings Act, “when it did not provide the public with an opportunity to observe its deliberations on its position on legislation pending in the General Assembly.”
“We have explained that when the sequence of electronic communications is such that a collective deliberation among a quorum has occurred, with the opportunity for the quorum to interact on public business subject to the Act, actual interaction, and awareness that a quorum is at hand for a specific period of time, we will deem the public body to have held a meeting subject to the Act. And, once again, we strongly discourage the exchange of electronic communications on public business, no matter how carefully structured to avoid the presence of a quorum, as violative of the goals that the Act was intended to achieve,” the opinion states.
What the Talbot County case shows is that real guidance is needed on modern technology and conducting public business, not — once again — words of discouragement. Our elected officials need it in black and white and should to be held to a consistent standard if we want to ensure public business is properly addressed in public in this age of technology. In the meantime, elected officials would be best served heeding the OMCB’s oft-repeated words of discouragement about electronic communications.
This editorial was written by Daniel Divilio, editor of the Kent County News. He is the brother of Talbot County Council member Frank Divilio, who was not involved in drafting this editorial.