Government e-mails pose issues

Openness called into question when discussing official business

By Dan Linehan

Mankato Mayor John Brady was looking for records of a recent decision by a committee of city staff members, until he learned minutes were not recorded, as they typically are. The traffic and safety committee had e-mailed the proposal about a concrete barrier on Byron Street to each other but hadn’t discussed it during a meeting.

At Blue Earth County, Commissioner Katy Wortel says she often e-mails interesting items to fellow County Board members, but electronic dialogue about public issues is rare.

And in Eagle Lake, a former city administrator says he resigned because the City Council there discussed items over e-mail and didn’t take the matter seriously after they were told it was probably a violation of state law.

There’s no law in Minnesota that specifically covers when electronic communication turns into a public meeting. Any e-mail between elected officials about public business could constitute a violation.

Mankato’s traffic and safety committee may not technically be a public body — it contains only one council person, not enough to make official decisions — but its e-mail communications are not put into formalized minutes, as its regular meetings are.

Given the convenience of the Internet and its widespread use — and the e-mail accounts and laptops that some cities hand out to council members — it’s only natural that officials would use it to some extent. But different lines are being drawn as to who should send and receive e-mail, and what should be discussed.

E-mail meetings?
In July, Tom Smith abruptly resigned as city administrator of Eagle Lake, citing a number of problems including employee behavior, the city’s organization and the secretary-like nature of his tasks.

He did not specifically mention the open meeting law, but mailed another letter Dec. 5 that said he left because “the city council was/has been conducting city business over the Internet without Public Notice.”

Smith included paper copies of e-mails that apparently show council members discussing an upcoming public housing project. Mayor Tim Auringer sent an e-mail to at least three council members describing the project and giving his opinion about it. Another councilman replied with a few questions.

Smith took that evidence to the city attorney, Chris Kennedy, who wrote a letter to the council, dated April 29, explaining there “appears to be a violation of the Minnesota open meetings law based on these communications.”

Smith took the letter to the council members, who, he claims, didn’t take it seriously. Auringer disputes that.

After the meeting, Smith wrote he was “shut out” in a “hostile work environment.”

“I don’t want to work for people like that,” he said.

Auringer said the council has lately left discussion to the public meetings, which lengthens them quite a bit.

The fact that discussions only happen at monthly meetings “slows government down to a crawl, which has been the rub on government for a long time,” Auringer said.

The mayor says “there’s still a gray area in the interpretation” of open meeting law as it relates to electronic communication.

What’s in a meeting?
Minnesota courts haven’t ruled on whether e-mail communication falls under the open meeting law.

The state’s Information Policy Analysis Division, or IPAD, issues advisory opinions about whether public bodies have violated public information or open meeting laws.

In an online Power Point presentation to cities, it says “it is likely that the court would analyze use of e-mail in the same way as it has telephone conversations and letters.”

Laurie Beyer-Kropuenske, IPAD’s director, said citizens sometimes suspect their officials have been privately e-mailing back and forth, but they can’t prove it.

This could take the form of a so-called “serial meeting,” where council members set up sequential one-on-one meetings, perhaps to forge a consensus on an upcoming issue. Serial meetings are specifically noted as illegal in open meeting law.

As for e-mails, Beyer-Kropuenske said it’s clearly acceptable for public officials to share information with each other.

An unresolved question is how much, if at all, the e-mails can include conversations about public issues.

Walking the e-line
A look at Mankato Councilman Mark Frost’s city e-mail account shows an upcoming item — plans to deal with a state budget crisis, in this case — sent from City Manager Pat Hentges. Replies from council members are brief, usually only a word or two.

North Mankato Councilman Bill Schindle said he rarely uses his city e-mail account, except as notification the meeting packet is available for download.

“If I got somethin’ to say, I’m going to say it in front of the camera,” he said, referring to videotaped public meetings.

Wortel, on the Blue Earth County Board, said her fellow commissioners are probably used to getting her forwarded e-mails. But she says it’s “pretty rare” that discussion about public issues happen over e-mail.

One-way standard
In 2007, the League of Minnesota Cities released a fact sheet about electronic communication and has some suggestions.

Among them: Use e-mail only to transmit information one-way, always from city staff to council members.

“Using the clerk as the clearinghouse for information distribution is probably a safer alternative than having council members communicate directly, though it doesn’t completely eliminate concerns about violating open meeting law,” the fact sheet states.

Ann Gergen, the associate administrator of LMC’s service trust, says the evolution of e-mail’s use in city government — just as in everywhere else — had raised questions about open meeting law.

She said one of the ways to mitigate risks associated with using e-mail is to avoid a conversation.

“One of the ways you’re never having a conversation is to never respond to a conversation,” she said.