OCEAN CITY — Just when an informal email or text message conversation between elected officials runs afoul of the Open Meetings Act became the topic of an interesting discussion this week.
Although the public wouldn’t know, it is likely not unusual for members of the Mayor and Council to exchange ideas or discuss official city business in an informal text message or email thread. Councilmembers can and do communicate frequently via email or text, but just when do those conversations represent a quorum and perhaps should be more appropriately be discussed in an announced meeting, even if it is an announced closed session?
That was a question raised by Councilman Tony DeLuca during the public comment period of Monday’s meeting. City Solicitor Heather Stansbury said her interpretation is if a running group text or email conversation takes place among a quorum of elected officials, in this case four or more members, it should likely be in a scheduled and announced meeting, even if it is a closed session.
“In terms of what can and what cannot be done, the council and elected bodies must follow the Open Meetings Act,” she said. “When a public body has a quorum, they must have a meeting.”
Indeed, language in the state’s Open Meeting Act (OMA) appears to corroborate her interpretation.
“Generally, a quorum can be present either in person or by telephone,” the OMA reads. “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.”
Stansbury said if a group text or email thread among elected officials feels like it is tiptoeing around the OMA, the conversation should likely be held in a scheduled and announced meeting.
“The Open Meetings Act frowns on group communications by email or text because the public isn’t aware of them,” she said. “The most prudent way is to ask the City Manager or the Council President to place an issue on an agenda.”
Councilman John Gehrig said it is not unusual for the council, or smaller subsets of the council, to have informal conversations about issues in advance of scheduled public meetings. He said those kinds of conversations have always taken place between elected officials, but technology has changed the way they are held.
“When we’re talking about solving a problem or sharing ideas, emails get sent,” he said. “This has been going on for a long time, only now, the medium has changed with emails and texts.”
Again, Stansbury was asked if those types of informal conversations could represent a violation of the OMA.
“It would come down to if it was an intent to run afoul of the Open Meetings Act,” she said. “If you’re trying to conduct business, it would be frowned upon.”
Gehrig said open dialogue among elected officials is often necessary in order to properly vet an important issue. He said not all city business is discussed when the Mayor and Council meet for a couple of hours each week in open public meetings and announced closed session.
“We just don’t show up on a Monday or Tuesday and meet for an hour or so,” he said. “All of us are well-prepared. It’s a 24-7 thing sometimes.”
Councilman Dennis Dare agreed the practice isn’t new, only the technology has changed.
“I believe if I wanted to get out a typewriter and send a letter to the Mayor and Council, I don’t think that would violate the Open Meetings Act,” he said. “I don’t see any difference if I send a memo via email. I think where we go amiss sometimes is when we start communicating as a group.”