Ask Joe Eisner: Are telephone or emails a violation of the Open Meetings Law?

Q: Are telephone conversations, letters or emails between library board members a violation of the requirements of the Open Meetings Law?

A: The following Committee on Open Government opinion offers guidance: “From my perspective, in most instances… ‘communications between Board members by any means including e-mails, letters and telephone calls which generate responses and dialogue’ may be, but are not generally inappropriate. In my experience, there are numerous situations in which detailed communications have been prepared and disseminated to or among members of public bodies in which the Open Meetings Law is not implicated. Often those communications serve as a means of acquiring or exchanging information, knowledge, expertise or different points of view, all of which enable members of public bodies to carry out their duties more effectively on behalf of the public.

“If a member of a board having a particular interest or expertise offers information in writing to other members, by means of intra-agency memorandum or perhaps via email, I do not believe that it could be concluded that such action, by itself, would constitute a meeting, even if it leads to responses by other members. In my capacity as the director of an agency headed by a public body, I frequently transmit a variety of detailed materials to the members of the Committee on Open Government prior to its meetings in order that the members can become familiar with the issues, and to be prepared and conversant at the meetings. In some cases, the materials may be clear and convincing, thereby eliminating the need for a lengthy discussion of their contents at an upcoming meeting. I do not believe that the transmission, whether accomplished through receipt or consideration of the materials by use of email or the Postal Service, would constitute a meeting or that such activity in any way circumvents or contravenes the Open Meetings Law. If a superintendent of schools transmits materials to board members prior to meetings for the same reason, to enable the members to prepare for a meeting, I do not believe that the Open Meetings Law would be implicated. If two of the members want to discuss or communicate with respect to the content of the materials, whether briefly or in detail, unless the board consists of three members, I do not believe that the Open Meetings Law would apply or be implicated in any way.

“As you are likely aware, there are different kinds of telephonic or email communications. Depending on their nature and factual circumstances, there may or may not be considerations involving the Open Meetings Law.

“When a list of recipients of email, a listserv or its equivalent, is developed, those on the list receive an email message from a sender. The recipients generally open the contents at different times. If I am on the list, if the pc on my desk is on and a message is sent to me, I will open it now. Another recipient may be out of the office or receive the message on his or her home computer, and that person might not open the mail until the next day. A third might not routinely open his or her email and might not see the message until three days have passed. In that kind of circumstance, irrespective of the nature or content of the communication, even though each person on the list has received the same message, and even though the message might engender a response, I do not believe that the transmission or receipt of messages or information by means of email would constitute a ‘meeting’ or that the Open Meetings Law would be implicated, unless, of course, the response involves a vote. In my opinion, there is little distinction between the communication of messages, memoranda and the like via the listserv and traditional inter-office mail. In both of those situations, although the same message may be distributed to all of the recipients, the messages are received at different times, there is no instantaneous interactive communication among the recipients, and no meeting, in my opinion, would be conducted.

“If the members of a board of education are on a listserv or its equivalent and one member transmits an email message to all of the other members, again, the members would likely open the message at different times. But what if the receipt of a message precipitates a series of exchanges among the members? What if a majority of the members engage in instantaneous or simultaneous communications in a chat room or by means of instant messaging on what often is known as a “buddy list”? In that situation, what might be characterized as a ‘virtual’ meeting would occur, absent the ability of the public to know of the meeting or to observe the performance of public officials. In my view, a court would determine that a virtual convening of that nature would constitute a secret meeting held in contravention of the Open Meetings Law.

“Another possible scenario pertains to what might be characterized as ‘serial’ communications. Although it did not involve email, the decision cited… [in] Cheevers… involved an effort to take action by means of a series of telephone conversations. In that case, the court determined that the action effectively taken was a nullity. The court cited and relied upon an opinion rendered by this office and stated that:

‘…there is a question as to whether the series of telephone calls among the individual members constitutes a meeting which would be subject to the Open Meetings Law. A meeting is defined as ‘the official convening of a public body for the purpose of conducting public business’ (Public Officers Law §102[1]). Although ‘not every assembling of the members of a public body was intended to fall within the scope of the Open Meetings Law [such as casual encounters by members], ***informal conferences, agenda sessions and work sessions to invoke the provisions of the statute when a quorum is present and when the topics for discussion and decision are such as would otherwise arise at a regular meeting’ (Matter of Goodson Todman Enter. v. City of Kingston Common Council, 153 AD2d 103, 105). Peripheral discussions concerning an item of public business are subject to the provisions of the statute in the same manner was formal votes (see, Matter of Orange County Publs. v. Council of City of Newburgh, 60 AD2d 309, 415 Affd 45 NY2d 947).

‘The issue was the Town’s policy concerning tax assessment reductions, clearly a matter of public business. There was no physical gathering, but four members of the five member board discussed the issue in a series of telephone calls. As a result, a quorum of members of the Board were ‘present’ and determined to publish the Dear Resident article. The failure to actually meet in person or have a telephone conference in order to avoid a ‘meeting’ circumvents the intent of the Open Meetings Law (see e.g., 1998 Advisory Opns Committee on Open Government 2877). This court finds that telephonic conferences among the individual members constituted a meeting in violation of the Open Meetings Law…’” (as quoted in Op COG 3787, May 4, 2004).

Note: Additional opinions on the propriety of email and telephone conversations amongst and between board members as regards compliance with the Open Meetings Law can be accessed at http://www.dos.ny.gov/coog/, then by clicking on at the right hand side of the page under SEARCHES, OML Advisory Opinions, and then using the alphabet chart, clicking on E to see the opinion numbers listed for E-mail meeting or voting or T for Telephone voting.

The foregoing should not be construed as legal advice, for which the services of counsel should be obtained.

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