Local Government Law Bulletin September 18, 2013

Complying With OMA in a Digital Age: Does “Reply All” = An OMA Violation?

The law does not always keep pace with advancing technology. The Michigan Open Meetings Act (“OMA”) is a case in point. The OMA was originally adopted in 1976, when modern communication technologies such as e-mail, texting, Twitter and Skype did not even exist. Despite this, the Legislature has not made any substantive amendments to OMA to address how any of these technologies may be used, if at all, in connection with the conducting of public meetings. As a result, public officials are left with a good deal of uncertainty: should they use these modern technologies to efficiently communicate with other public officials or when conducting public meetings, or is the risk of an OMA violation too high?

Given the lack of definitive answers from the Michigan Legislature and the Michigan courts, there is no way to completely escape from this dilemma. However, based on the core purposes of OMA, and based on opinions from other authorities, it is possible to offer some reasonable guidance that can prevent public officials from inadvertently walking into an OMA violation through the use of digital communication technologies.

The Core Requirement of OMA. In evaluating whether the use of a digital communication technology complies with the OMA, the analysis must start with a consideration of OMA’s core requirement, as stated in Section 3(1) of the Act: “All meetings of a public body shall be open to the public and shall be held in a place available to the general public.” In this regard, the OMA defines “meeting” as the “convening of a public body at which a quorum is present for the purpose of deliberating toward or rendering a decision on a public policy.” Within the context of these statutory definitions, the issue that arises is whether the use of electronic communications can inadvertently result in the conducting of an unlawful private meeting – that is, a meeting of a public body that is not open to the public. There are at least a couple of different situations where this can arise, as discussed below.

Electronic Communications During Open Meetings. A question often raised is whether members of a public body may e-mail, text or otherwise electronically communicate with each other during the course of an open meeting. There is no Michigan case law addressing this subject, but, assuming that the electronic communications involve a matter of public policy, this type of activity would almost certainly violate the core purpose of OMA. This is because the electronic communications could not be observed by the public, and would thus violate OMA’s “openness” requirement. In essence, the electronic communications would constitute an unlawful private meeting.

The Attorney General’s office agrees with this analysis. In the Open Meetings Handbook promulgated by Attorney General Bill Schuette, he advises as follows:

  • “[T]he use of electronic communications for discussions or deliberations, which are not, at a minimum, able to be heard by the public in attendance at an open meeting are contrary to the OMA’s core purpose – the promotion of openness in government.”
  • “E-mail, texting, or other forms of electronic communications among members of a board or commission during the course of an open meeting that constitutes deliberations toward decision-making or actual decisions violates the OMA, since it is in effect a ‘closed session.’”
  • “[T]he OMA bars the use of e-mail or other electronic communications to conduct a secret ballot at a public meeting, since it would prevent citizens from knowing how members of the public body have voted.”

In short, members of a public body should not electronically communicate with each other during the course of an open public meeting, through text, e-mail or other forms of digital communication that cannot be seen or observed by the public. This type of activity almost certainly violates OMA, provided that the communications involve a matter of public policy. Moreover, even if the communications do not involve a matter of public policy, this type of activity should be avoided because it simply “looks bad” to the public. Which is to say that it has the propensity to leave the public wondering whether something is being intentionally hidden from public view – a perception that should be avoided as a matter of sound public policy.

Electronic Communications Outside of Open Meetings. The risk of violating OMA through electronic communications also exists outside of the context of an open meeting. Most commonly, this issue arises when a member of a public body sends a group e-mail to the other members of the public body, concerning a matter of public policy. For example, a member of a planning commission might send an e-mail to the other members of the same planning commission, commenting on whether a certain rezoning application should or should not be approved.

Does this constitute an OMA violation, as being private deliberations on a matter of public policy? Once again, Michigan law does not provide a direct answer, but the courts in several other states have considered similar issues. The common points that can be pulled from these out-of-state decisions can be summarized as follows:

  • A unilateral e-mail (or other electronic communication) from one member of a public body to the other members of the public body is probably acceptable, and would not violate OMA, as being akin to an interoffice memo that might be distributed in paper form, within a physical office.
  • A problem would likely arise, however, if a member of the public body responded to the original e-mail with a “reply all” message that was sent to all other members of the public body. This would likely constitute an unlawful private meeting, since a quorum would be engaging in deliberation or decision-making on a matter of public policy, out of public view.
  • The same problem might also arise if the original communication generated multiple side discussions by way of electronic communications, even if each side discussion involved less than a quorum. The Michigan courts have adopted the “constructive quorum” concept under OMA, meaning that several sub-quorum groups can violate OMA if, taken collectively, their deliberations would result in a quorum of a public body discussing a matter of public policy in private.

Thus, even though e-mail, texting and Twitter are quick and efficient ways for members of a public body to communicate outside of a meeting, extreme care must be exercised when using these technologies. A unilateral communication from one member of a public body to the other members of the same public body may be appropriate. However, responding to such a communication by way of using the “reply all” function probably violates OMA. And even using the simple “reply” function is risky in this situation, because cumulative communications by several members of the public body might result in a constructive quorum violating OMA.

Virtual Participation In An Open Meeting. The dawning of new technologies such as Skype or Face Time has raised another novel issue under OMA. Specifically, if a member of a public body appears at a public meeting through one of these technologies, does this constitute being “present” at the meeting for the purpose of OMA, and is that person therefore allowed to vote at the meeting?

OMA does not address this subject at all, and there is a mix of historical opinions on this subject from other Michigan authorities. Most recently, however, the Attorney General issued an opinion in 1995, concluding that OMA allows a member of a public body to virtually attend a meeting by way of interactive television, on the condition that the technology must be utilized so that the virtually-attending member can be seen and heard by the public and by other board members, and so that the virtually-attending member is able to interact with the public and with other board members. Both Skype and Face Time could be utilized in this manner, and so would presumably comply with the Attorney General’s guidance.

That said, the Attorney General’s opinion does not directly address the subject of whether a quorum can lawfully be established, under OMA, through the presence of virtually-participating board members. In absence of direct guidance on this issue, the safest practice is to allow virtual participation by Skype or Face Time (or by similar technology) only when a quorum can otherwise be established by the members who are physically present at a meeting and able to vote in person.

This is the same general approach that might ultimately be sanctioned by the Michigan Legislature. In that regard, the House passed bills in both the 2011-2012 and 2013-2014 Legislative sessions providing, in general terms, that, under OMA, a member of a public body must be physically present at a meeting to cast a vote. The current version of that bill is House Bill 4363. It was passed by the House on May 16, 2013, and was referred to the Senate Committee on Government Operations on May 21, 2013, where it remains pending at this time. We will keep our readers advised if there are additional developments surrounding the possible adoption of House Bill 4363.

As this article demonstrates, there are a variety of thorny legal issues that can arise when modern communication technologies are applied to public meetings. These issues will continue until the Legislature decides to bring OMA into the modern world through appropriate amendments that address digital communications and other advanced technologies. In the interim, we advise that you contact a member of our Firm’s Local Government Practice Group if you have specific questions regarding OMA compliance and the use of digital communication technologies.

Let’s start a partnership worth keeping.