Open Meetings in the Digital Age

SocialHistoryWESTFIELD – As social media grows more powerful in shaping the daily lives of everyday Americans, capable of shifting public opinion and shaping policy, lawmakers around the country are starting to examine these evolving mediums to see if they are creating avenues of communication that elected officials are possibly breaking the law with.
Over the past few years, officials ranging from President Barak Obama to Governor Deval Patrick to Mayor Daniel M. Knapik have often used Facebook and Twitter to make announcements and reach out to their constituents. But where is the line between personal conversation and policy drawn? And how thin a line is there?
“Technology is very different today. The Internet has made it easy for people to get hold of things,” said State Senator Don Humason, Jr. (R-Westfield), adding that the capabilities of the Internet have made legislative communication much more efficient and, in some states, fulfilled a necessary need. “In big states like Texas, when some officials are multiple hours from the capital, you might not be able to get everyone in a room at the same time.”
“In the City of Westfield, elected officials are very sensitive to communication, whether it be via email or at the Sons of Erin on St. Patrick’s Day, that may be considered outside of an open meeting,” Humason said.
“Remote participation is one of the issues we’re dealing with (in the House),” said Humason’s former colleague, Rep. Peter Kocot (D-Northampton), who represents Montgomery in his First Hampshire District and has sponsored a bill dealing with transitioning meeting documents to an eDocument-based system. “If you have a board, there’s a snowstorm and you want to deliberate on an issue, how do you do that? It’s a unique issue in western Massachusetts because you’ve got 30-something towns without high-speed Internet.”
Kocot said that the issues of access, equity, and transparency regarding remote participation are among the biggest facing the State’s Open Meeting Law Advisory Commission, of which he is a member.
As Superintendent of Schools, Dr. Suzanne Scallion said the city’s School Committee is “extremely cautious” in dealings outside of the boardroom, especially using social media.
“We are very well-versed,” said Scallion, who credits Committee Chairman Knapik, an avid social media user, for keeping the Committee on the straight and narrow regarding these mediums. “We don’t use email to communicate business, but we have a school committee file for certain items which we bring to the next meeting.”
Scallion says she fields a fair amount of calls weekly from city residents related to misinformation shared on social media.
“It’s a blessing and a curse,” she said. “People need to put it in neutral and verify things as true before sharing them (on social media).”
Knapik said that the city committees he is on get the open meeting law.
“The principle of the law is clear — you can’t communicate with any quorum outside of a meeting,” he said. “That’s the overriding principle.”
Knapik likened the violation of open meeting laws via social media to a small segment of a council deliberating over lunch, saying elected officials “should be mindful.”
He also spoke of the alternate communication methods referenced by Humason for when members of committees cannot physically attend a meeting, and what a slippery slope these methods could potentially provide.
“Do we accept things like teleconferencing?” Knapik asked. “I think if you allow people to simply call into meetings, you take some of the democracy of the open meeting away.”
There are currently three bills pertaining to the open meeting law that State House lawmakers are looking to pass. While none of these bills mention the illegal use of social media explicitly, a bill sponsored by Rep. Antonio F.D. Cabral (D-New Bedford) titled “An Act to improve the open meeting law” deals with the legal ramifications of open meeting law violations.
According Attorney General Martha Coakley, under Section 18 of state law, a deliberation is “an oral or written communication through any medium, including electronic mail, between or among a quorum of a public body on any public business within its jurisdiction.”
The definition goes on to add that said deliberation “shall not include the distribution of a meeting agenda, scheduling information or distribution of other procedural meeting or the distribution of reports or documents that may be discussed at a meeting, provided that no opinion of a member is expressed.”
The law defines a “meeting” as a “deliberation by a public body with respect to any matter within the body’s jurisdiction.”
Under Section 18, a meeting does not include an on-site inspection of a project or program, attendance by a quorum of a public body at a public or private gathering, including a conference or training program or a media, social or other event, attendance by a quorum of a public body at a meeting of another public body, a meeting of a quasi­-judicial board or commission held for the sole purpose of making a decision required in an adjudicatory proceeding brought before it, a session of a town meeting convened under section 9 of chapter 39 which would include the attendance by a quorum of a public body at any such session.
According to state law, all of these non-meeting gatherings remain as such so long as the members do not deliberate.
In addition to the state’s definitions on what constitutes a meeting and deliberation, Massachusetts General Law regarding remote participation states that “members of a public body who participate remotely and all persons present at the meeting location shall be clearly audible to each other,” that “a quorum of the body, including the chair or, in the chair’s absence, the person authorized to chair the meeting, shall be physically present at the meeting location,” and that “members of public bodies who participate remotely may vote and shall not be deemed absent for the purposes of law.”
So while state law hasn’t yet addressed the use of social media by its public officials, that doesn’t mean that questions haven’t been raised statewide about addressing these evolving methods of communication.
At a June meeting of the Open Meeting Law Advisory Commission in Boston, a member of the City of Brookline’s school budget subcommittee addressed the Commission about considering amending the state’s Open Meeting Law to allow participation by members of public bodies in online communities/social networking sites, and referenced a subcommittee-related Facebook group page that has around 700 members, and how the subcommittee has spoken with counsel regarding a formal approval of the online group.
Counsel’s response on the matter, according to minutes from that June 18 meeting, was that “if a quorum of the public body comments there would be a violation of the Open Meeting Law.”
Commissioners responded that the issue is one they have “spoken about repeatedly”, and vowed to keep an open mind and find out how other states are handling social media with regard to open meeting laws.
Facebook groups have also drawn considerable ire from other Bay Staters, including a complaint received by the Attorney General’s office in March, saying the Nantucket Energy Study Committee, who were alleged to engaged in “impermissible, private deliberations” regarding a wind turbine on the island, and that the Committee Chair created a Facebook page called “Renewable Nantucket-Cut the cord to the Mainland” as a means to deliberate on the matter.
The Office of the AG reviewed the case and found that the Nantucket Energy Study Committee did not in fact violate the OML, as a quorum of its nine members did not deliberate on the webpage, as the Committee’s Chair was acting as a private citizen when she created the page.
The AG ruled that, since the group was private and its membership was composed by invitation only, while its membership did swell over time, there were never more than four members of the Nantucket Energy Study Committee engaged, and the search for a fifth member turned up empty, as the presence of a fifth member would’ve created a quorum, defined by state law as “a simple majority of the members of the public body.”

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