PAC Finds No OMA Violation for Non-Contemporaneous and Non-Interactive Email Communications or Attendance at Campaign Event
Recently, the Public Access Counselor (PAC) issued a new binding opinion concerning the Open Meetings Act (OMA). In the opinion, the PAC determined that three city council members did not violate the OMA when they exchanged emails about public business, finding that the communications were not “interactive” or “contemporaneous. The PAC further determined the city council members did not violate the OMA by attending a political campaign event.
The PAC reviewed an allegation that three city council members exchanged emails on three separate occasions, in which they discussed city business such as the hiring of a new city manager, in violation of Section 2(a) of the OMA. Section 2(a) of the OMA requires all meetings of public bodies to be open to the public unless an exception applies. Email communications may constitute a “meeting” under the OMA when certain conditions are met. Specifically, emails will likely constitute a “meeting” under the OMA when they are exchanged by a majority of a quorum, concern public business, and are contemporaneous, interactive, and deliberative. The PAC has previously determined that emails sent hours or days after an initial email are not “contemporaneous.” The PAC has also previously determined that a member of a public body must transmit or respond to an email, rather than merely receive an email, for the email to be interactive.
Here, the PAC found that the email exchange among three members of the city council constituted a majority of a quorum. The PAC, however, ultimately determined that the remaining elements to constitute a “meeting” under the OMA were not present in the communications. First, the PAC concluded that one of the email exchanges was not contemporaneous because, while the two council members exchanged emails within fifteen minutes, the third council member did not respond until three days later. Further, the PAC determined that the other email exchanges at issue in the request for review were not interactive, as each incident involved only one member of the council emailing the other two and receiving no reply.
The PAC also reviewed an allegation that the city council violated the OMA when a majority of a quorum of the members attended a campaign event where city business, such as elections and budgets, was discussed. On review, the PAC determined that there was no evidence indicating the city council members discussed public business in a manner that transformed the campaign event into a city council meeting. In general, a gathering does not constitute a meeting under the OMA when there is no examining, weighing, or discussions in support of or against a course of action, no exchange of facts preliminary to a decision, and no attempt to reach accord on a specific matter of public business. The PAC determined that, while the campaign event addressed issues related to the city in general, there was no evidence to suggest that the three city council members were engaging in deliberative discussions of public business amongst themselves. Rather, they were engaging in a purely partisan political gathering, which does not constitute a meeting subject to the OMA. The PAC reiterated that the OMA is designed to prohibit secret deliberation and action on public business, not interfere with bona fide social gatherings of public officials or political meetings.
While the PAC found no violations under these specific facts, other fact patters involving email communications and gatherings may result in a violation. Members of public bodies should remain cautious when utilizing email, texts, or participating at gatherings with other members of the public body. If you have any questions regarding this decision or any OMA matters, please contact one of the authors of this alert or any Franczek attorney.