OPEN PUBLIC MEETINGS ACT UPDATE
October 31, 2011
Chain E-Mails May Violate The Open Public Meetings Act
Recently the Gloucester County, Cape May County and Burlington County Prosecutors’ offices independently concluded that e-mails between members of a governing body are covered by the Open Public Meetings Act (“OPMA”). Knowing violations of the Open Public Meetings Act may result in a fine of $100.00 for the first offense and between a $100.00 and $500.00 for each subsequent offense.
In Gloucester County, four council members decided via e-mail to pay a gas bill. This was found to be a violation of the law because the public was deprived of its right to be present when the council was “deliberating” on the bill. Similarly, in Burlington County the prosecutor opined that the Township officials “unwittingly” ran afoul of the prohibitions contained in the Open Public Meetings Act. In that case all five council members engaged in an ongoing dialogue via a string of e-mails. The prosecutor concluded that the Township officials inadvertently convened a meeting contrary to the Open Public Meetings Act. In Cape May County the e-mails in question concerned the proposed ad including qualifications for the position of Township Manager. The e-mail asked for a positive response from a majority of the council to approve the proposed ad for posting in the local paper and websites. The Cape May Prosecutor noted that some council members were previously advised to avoid using e-mails and accordingly deemed the violation “disturbing”.
The fact that three prosecutors have now independently reviewed this issue, clearly places elected officials on notice that the use of e-mail, text, or instant messaging may constitute a “meeting” for purposes of the Open Public Meetings Act. Public Entities need to develop written guidelines for the use of e-mails and other electronic communication. The Burlington County Prosecutor recommended that these written guidelines include at a minimum the following:
- E-mail communications should, as far as practicable, not include an effective majority of the governing body and should never include an effective majority of the governing body where discussion of information related to the business of the municipal is involved.
- Where e-mail communications do include an effective majority of the governing body, such communications should not include any request for a response. In fact, any e-mail communication should indicate that there should be no e-mail reply or other responsive communication.
- In the rare instance when a response to an e-mail is necessary, such response must not involve any decision-making or deliberative function of the governing body or otherwise address public business as contemplated by the OPMA. Further, the response shall not be made to the entire list of email addressees to avoid even the appearance of impropriety. Utilizing a third party, such as the Clerk, does not change the requirements of the OPMA.
- “Rolling” e-mail conversations must also be avoided. A “rolling” e-mail occurs when one (1) member of the governing body or a third party contacts other members via e-mail individually to successively discuss or gain opinions on an item of municipal business. This would apply to other forms of electronic communications as well. However, communications between less than an effective majority of the governing body do not violate the OPMA provided the dialogue does not become a “rolling” discussion that ends up including an effective majority of the governing body.
We recommend public entities consider adopting guidelines for the use of e-mails, texting or other electronic communication to avoid possible violations of the Open Public Meetings Act. Please contact our office for help drafting this policy
This Scarinci Hollenbeck Legal Update has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel.