Local officials warned against chatting about town business online

Winter 2006

ROWLEY—The Internet has made shopping, paying bills, reading the newspaper, and, it turns out, breaking the state’s Open Meeting Law more convenient than ever. Fifteen years ago, if town officials wanted to circumvent the law, which prohibits a majority of a municipal governing body from discussing public business in private, they would have to meet in secret or talk over the phone. These days, they don’t even have to coordinate their schedules. They can simply send out an e-mail message at their leisure and wait for a reply—a relatively recent development that is worrying, and in some cases annoying, town officials.

When the Open Meeting Law was passed nearly five decades ago, improper executive (or closed-door) sessions and clandestine meetings were its primary target, as they are today. In Rowley, a coastal North Shore town of about 6,000 people, some town officials have been mindful of this fact almost to the point of absurdity. Until a few years ago, when the board of selectmen expanded from three to five members, Stephen White and Richard Curran, a pair of selectmen who have been friends for 35 years, would not eat in a restaurant together. An informal get-together between two selectmen—which constituted a quorum—could be viewed as a violation of the law.

“If you have three selectmen, two selectmen in a diner is illegal,” says White, a selectman and town government veteran who has lived in Rowley for more than 40 years. “Most of the time I served with people who were good friends of mine. Technically, we couldn’t even go out together.”

But the “deliberation” prohibited by the Open Meeting Law can occur just as easily over the Internet as it can over a cup of coffee, some of the state’s district attorneys have maintained. Last year alone, boards or committees in at least six Bay State towns were determined by prosecutors to have violated the Open Meeting Law after discussing public business by e-mail. (The Sandwich school committee got its scolding just before Christmas.) Other towns and regional school districts have taken note and have begun adopting written e-mail policies that spell out what types of communication are and are not allowed.

The law’s ambiguity is disconcerting.

In November, at the urging of Curran, Rowley’s board of selectmen unanimously approved a new policy concerning the use of e-mail between town officials. Although not a bylaw, the policy warns town officials not to discuss “matters of substance pending before a board” via e-mail.

Never mind that, as far back as anyone can remember, no one in Rowley has ever even been accused of violating the Open Meeting Law, whether through e-mail or any other method. Instead, town officials were jolted into action by a lawsuit in nearby Amesbury. As part of a fierce dispute over expanding the town’s library, a group of residents filed a civil action in Essex Superior Court in 2004, charging that the Amesbury municipal council had violated the Open Meeting Law through e-mail exchanges. According to the court complaint, the plaintiffs obtained the e-mails “only by chance,” with no further explanation offered.

Rowley’s new policy has not brought about a sea change in the way the town does business. One of the selectmen, Thomas Moses, knows the e-mail address of just one other board member. And White, who is in his mid-60s, has never bothered to learn how to use a computer. Even if he wanted to violate the Open Meeting Law using e-mail, White says, “I wouldn’t know how to.” (Although some people of White’s generation use e-mail regularly—Curran, for instance—older people who did not grow up with the technology tend not to rely on it for everyday communication.)

Although he can’t say for sure, Moses doubts that the various boards and commissions in town use e-mail much more than the selectmen do. “I know some of the folks on the Board of Health,” he says, “and I doubt they would be serious users of e-mail. Possibly they use it on the Planning Board, the Conservation Commission. I can’t see any member of the Zoning Board—and I’m just going by personality here—being a heavy user of e-mail. I would be surprised if any of them had e-mail accounts, or computers at home.”

That a town like Rowley, whose officials are not exactly Web-addicted, would feel compelled to adopt an e-mail policy points to the uneasiness felt by many over the ambiguity in the state’s Open Meeting Law and the potential for inadvertent violations. “I could be breaking the rules because I don’t know how e-mail works,” says White, “and if somebody doesn’t like me, they can come after me and attack me based on that.”

That was the situation that unfolded in Amesbury, according to Roger Benson, a member of the municipal council who worked on the council’s new e-mail policy. “It’s awfully easy to slip into illegal activity and not even know it,” says Benson. Disgruntled citizens, he adds, can take advantage of this uncertainty, as he feels they did in Amesbury. “[E-mail] does become a convenient thing for someone with a vendetta to use against you,” he says.

good number of the town officials found to have violated the Open Meeting Law via e-mail in recent years claimed not to have known that they were breaking the law, a claim that is not implausible. The law, which was enacted in 1958, does not explicitly address electronic communication and is therefore open to some interpretation.

The only direction provided to cities and towns on e-mail use are written guidelines from the offices of the attorney general and local district attorneys, who also offer public seminars to explain their interpretations of the law. The attorney general’s guidelines, which are posted on the office’s Web site, allow e-mail exchanges for so-called housekeeping matters (scheduling meetings, setting agendas, circulating documents), but prohibit “conversations” relating to public business.

District attorneys, who enforce the Open Meeting Law on the municipal level, largely follow the attorney general’s lead on e-mail use but have not adopted a uniform stance. Some DAs make no mention of e-mail in their Open Meeting Law guidelines, while at least one, Middlesex County District Attorney Martha Coakley, seems to interpret the Open Meeting Law more strictly than the state attorney general does. That county’s guidelines caution that an illegal quorum can be reached over e-mail even without every official’s knowledge or intent, as a result of forwarded messages or a chain of one-on-one exchanges. In such instances, it might take days or weeks for a majority of members to receive the e-mail, but in the eyes of the district attorney, a quorum has still been reached, just as if the individuals had conferred in the back of a restaurant.

These guidelines are the only readily available models for town e-mail policies such as Rowley’s, but legally speaking they are just an opinion.

“This is something that’s begging for clarification,” says Jim Lampke, secretary-treasurer of the City Solicitors & Town Counsel Association, the bar association of municipal attorneys in Massachusetts. “You have a government that has been around for 400 years, and has evolved certain practices and certain regulations by law. Now, all of a sudden, you have this fast-paced technology that is trying to fit in.” There needs to be a balance, Lampke suggests, between the public’s right to know and the ability of officials to do their jobs efficiently. “You can’t operate a government, or any enterprise, without embracing the new technology, yet on the other hand you have to be mindful of the regulations that ensure openness in government and public participation,” he says. “There has to be some adjustment on both ends.”

Although Rowley’s new policy has yet to be tested, Benson says that restrictions on e-mail “handicaps” the municipal council in Amesbury. “There’s got to be a way for us to communicate,” he says. “Stuff comes up in between meetings, and meetings are only a couple hours long, so it’s difficult to fit everything in.” The e-mail housekeeping required under the new policy is also cumbersome, he says. Benson estimates that he receives 40 to 50 e-mails a day related to town business, and the new policy requires him to forward every single message he sends or receives to the town clerk. “It’s just an amazing amount of work, and I don’t think people realize that,” he says.

Everyone agrees that the problems in the Open Meeting Law exposed by the growing use of e-mail will be resolved one way or another. Opinions differ as to whether the courts or the Legislature will finally step in to clarify matters.

One factor that inhibits a resolution is that lawsuits concerning open meeting laws almost never make it to court, in Massachusetts or anywhere else. (It’s likely that most violations of the law go undiscovered anyway, unless one of the e-mail correspondents goes public with the exchange or leaks it to someone else.) Complaints lodged with local district attorneys generally result in quick compliance with the law, as towns simply release disputed e-mail correspondence to the public—or, in the case of improper executive sessions, make public the minutes of the meeting. As a result, a Massachusetts court has yet to tackle the application of the Open Meeting Law to e-mail use. (Significantly, in the Amesbury case, the Essex Superior Court did not rule on whether the contested e-mail exchanges constituted a violation, and merely ordered that the city council “consider” adopting a written e-mail policy at its next meeting.) The few rulings from courts in other states are of little help, as they appear to contradict each other.

On the other hand, legislators have been only slightly quicker than the courts to address the issue of electronic communication and open meeting laws. Several states have expanded their open meeting laws in recent years to include e-mail and other technology—in some cases, simply by inserting a phrase or two—but Massachusetts is not one of them.

he ambiguity in the Open Meeting Law regarding electronic communications may only get worse, as existing technologies find their way into wider use. E-mail is by now a ubiquitous feature of life, but other technology that could be used to discuss public business, such as online bulletin boards, instant messaging, and (smoke-filled?) chat rooms, threaten to make interpreting and enforcing the law increasingly difficult.

The possibility of violating the Open Meeting Law through an online forum has already been raised in Massachusetts. In Amesbury, some town officials, including Benson, frequently post their opinions on a community forum, which led the council to explicitly prohibit communication among a quorum of members through Internet forums and chat rooms, in addition to e-mail.

The relevance of the Open Meeting Law to online forums has also been raised in the town of Westford. Over the past two years, a Westford selectman, Jim Silva, has become a frequent contributor to an online forum hosted on a privately owned community Web site. Last fall, some of Silva’s fellow selectmen asked him to stop posting. Among the reasons they gave for their request was the possibility that a quorum of board members reading a fellow board member’s posted opinion on a public matter could be considered a violation of the Open Meeting Law. Silva refused to stop, however, citing his First Amendment rights.

The town attempted to settle the issue in November, at an Open Meeting Law seminar hosted by two Middlesex County assistant district attorneys, Kerry Kilcoyne and Lillian Cheng. Silva and other residents asked the assistant DAs about the online forum, but the attorneys had few answers. “I definitely came away with the impression that the DA’s office really doesn’t have a good idea on how to react to public officials posting on a public online forum,” Silva wrote on the forum later that evening. “It was frustrating to hear so much ambiguity from them.”

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At least for now, the legality of a selectman posting on an online forum—let alone using a chat room or instant messaging—would not seem to be a pressing issue in Rowley. For one thing, the town’s state-issue Web site hasn’t been updated since February 2004.

Then again, somebody could set up an online forum or chat room on Rowley’s Web site, or a private site, in a matter of hours. Modern technology is fast and flexible by nature—more so than the law, at any rate. It is not hard to imagine a district attorney sometime in the near future trying to determine if, say, a discussion in a public chat room that includes a quorum of selectmen and several other citizens is a violation of the Open Meeting Law. When that day comes, as it surely will, e-mail may suddenly seem very old-fashioned.