Remote venues, smartphones can bring open-meeting trouble

​It may seem like just a casual breakfast at the local diner.

But if a sign ordinance, the town budget or some other official business comes up in conversation, councilmembers may have just held an illegal public meeting.

At issue is whether enough of the town's elected officials were present to constitute a quorum — a simple majority of the public body — and whether they discussed any official business for any amount of time.

If the answer is yes on both questions, those officials held a council meeting. And if no one published a meeting notice pursuant to the 24-hour minimum requirement and other particulars under the law, that public body will have violated the Freedom of Information Act.

The law offers no wiggle room. Calling a meeting a council retreat or a workshop, for instance, doesn't relieve council of public meeting requirements. Also, it doesn't matter if the meeting venue is casual or located many miles from city hall. If councilmembers were to attend an out-of-state conference, for instance, they would still have to avoid gathering in a quorum and broaching topics over which the council has supervision, control, jurisdiction or advisory power.

Whether those in attendance take any formal action is also immaterial to whether the gathering met the definition of a public council meeting.

"It's understandable that members of council are going to find themselves together at separate community events outside of city hall," said Bill Taylor, field services manager for the Municipal Association, adding that these gatherings may include Chamber of Commerce functions, school or even church events.

"The problem comes when members in attendance begin to discuss issues," said Taylor.

It's helpful to consider appearances, too.

"While they may only be discussing the weather or the upcoming football season, it may appear to the other residents in attendance that the group is probably discussing something to do with the city and is doing so outside the purview of the public," he said.

Technology is also testing the boundaries of open meetings law.

It's acceptable for city councilmembers to all be Facebook friends. But if a simple majority of elected officials communicates via the private chat function, Facebook Messenger, they have formed a quorum. The same goes for any other private social media conversations, cellphone texting among a group of users, emailing among a group, and conference and video-teleconference calls that involve a quorum-sized number of members of a public body and mention of official business topics.

Similarly, elected officials who communicate among councilmembers through their personal electronic devices during a properly noticed public meeting are also in violation of the open meeting law, if official business is mentioned. It's comparable to elected officials whispering among themselves during a city council meeting.

Private electronic communication involving a quorum of council members is equivalent to an illegal electronic executive session. "The convenience of using email and text messages can lead to situations where a majority of the governing body is actually 'meeting' electronically and can be seen as the group making decisions outside of properly noticed public meetings," said Taylor.

"Using 'Send All' and 'Reply to All' settings are dangerous in these instances and should be avoided. Such decisions made via electronic technology can lead to potential challenges by the public."