Let the Sunshine In

Using e-mail for board business? Check open-meeting laws

By Andrew Trotter

Andrew Trotter is an associate editor of Electronic School.

If you send an e-mail message to a member of the Seminole County (Fla.) school board, you're also sending one to Mike Barry, a reporter for the Orlando Sentinel. "Any e-mail that goes to the board goes to me," Barry says.

In December, at the education reporter's request, the school board arranged to forward all of its e-mail automatically to Barry and to his editor. Far from an invasion of privacy, the arrangement is really openness in government, says Seminole County's board president, Sandy Robinson. Florida's "Sunshine Law" gives the press the right to riffle through school board mail, and the Legislature has explicitly included electronic documents under that law.

Like their counterparts elsewhere who are taking advantage of e-mail and voice mail, Seminole County board members are working out the rules for the electronic age. They're weighing the implications of "sunshine" and open-meeting laws, as well as confidentiality and protocol.

Using district-owned laptop computers, the county's five board members can check their e-mail from home. "I've found personally it has cut down a tremendous number of phone calls," Robinson says. "It allows me to work on school board things on the weekend." She says most of the flow of information via e-mail and a new voice-mail system is between the board and the administrative staff, rather than among board members. For example, the administration will send e-mail to the board with the latest developments on a land purchase.

But Robinson says the board members are "painfully aware" that the sunshine law bars them from discussing among themselves in private "any issue that may come up for a vote." In electronic communication, they err on the side of caution: "If there's any concern, we just usually stop the conversation."

Out of the public eye

When board members take fewer pains, trouble can follow. In April 1995, two members of the Jefferson County (Colo.) school board accused then board President David DiGiacomo of violating state open-meetings law by leaving voice-mail messages for other board members. The messages reportedly said that DiGiacomo would testify, in his role as board president, in opposition to a school governance bill at a committee hearing of the Colorado General Assembly, according to the Rocky Mountain News.

The two board members, Jeffe Hall and Terri Rayburn, planned to testify in support of the bill as private citizens. To them, DiGiacomo's voice-mail messages amounted to a meeting--defined by the state open-meetings law as "any kind of gathering, convened to discuss public business, in person, by telephone, or other means of communication." Even though the board members are not on a conference call together, Hall told Electronic School, a board is holding deliberations without public involvement and oversight when "someone gets on [voice mail] and says, 'I think such and such about this issue,' and then two or three call back and say, 'I agree with that.'"

The Rocky Mountain News agreed: "The Jeffco controversy shows how information technologies can be abused to short-circuit the public's ability to monitor and influence government decision making," said an editorial in that newspaper.

DiGiacomo, an attorney who has served on the board for five years, says his voice-mail messages were simply informing his colleagues, not soliciting their opinions. "I'm convinced there's no violation," he says. And, DiGiacomo adds, a written opinion by the board's attorneys backs him up. The opinion states that board members could "share information [electronically] about where we've been and what we've seen," he says. Indeed, aside from creating a brief public furor, his colleagues' accusation never went anywhere. Hall says she decided not to file a complaint against DiGiacomo.

But even if no one complains, a school board's electronic communication can raise public questions. The board of the Westside (Neb.) Community Schools, near Omaha, had used e-mail for just four months, says board President Helen Kelley, when "the newspaper called us up and said we're all breaking the law.

"I was quoted as laughing," she says, but counters, "I don't think, 'Hey, I've got e-mail, so I can do something illegal.'"

The call from the Omaha World-Herald led Kelley to research Nebraska law on the matter. The relevant statute was "really hard to find," she says, but "it did say you can't use electronic means to meet." A newspaper story next alerted the community to the theoretical possibility that the school board might violate the state's open-meetings law by using e-mail. And after that "red flag," the six Westside board members took a serious look at its use of e-mail, Kelley says. Legal counsel advised the board that the law prohibits members from exchanging opinions among themselves outside of a public meeting.

Conducting board business out of the public eye might have a place, however, when it comes to matters that must be kept confidential. Jefferson County's DiGiacomo points out that Colorado law does allow board members to use e-mail and voice mail for "some other areas that are absolutely screened from public scrutiny--matters of contract, personnel matters." His board, for example, has discussed electronically a recent problem with a high school principal--"whether he's doing his job" and whether the superintendent should intervene.

But other board members balk at discussing confidential matters electronically, due to the ease with which messages can be forwarded to others--even worldwide. The Westside and Seminole County boards both avoid confidential or sensitive information on e-mail. "There is some access to [e-mail] that's out of your control," says Kelley. "Whatever you have on there--be sure it is something you wouldn't mind on the front page of the newspaper."

A useful tool

Even with restricted use, e-mail is valuable, board members who use it agree. Kelley forwards her official correspondence via e-mail to the board secretary, who prints it on school board stationery. And like Seminole County's Robinson, she limits messages to other board members to scheduling future events or alerting her colleagues to such events as a recent television appearance by their superintendent.

Most of her exchanges of substantive information are with district administrators, she says. And to avoid the charge of using e-mail as a back-door route to meddling in administrative decisions, she forwards to her superintendent a copy of any message she sends to a staff member.

In a countywide district that has 5,000 children and 35,000 residents, Kelley says electronic communication might eventually help her colleagues stay in contact with their constituents. The efficiency of the board's twice-monthly meetings might also be increased, she says, if the board president and the superintendent can exchange drafts of the meeting agendas via e-mail.

"Wired" board members advise others to seek legal guidance to determine how to stay in compliance with state open-meeting laws. To date, virtually no case law has directly addressed questions of electronic communication among public officials, although that might soon change, according to legal experts.

Another word of practical advice comes from Bruce Douglass, superintendent of the Suffield (Conn.) schools, who suggests that board members put electronic communication into a broader context: "E-mail isn't an entity by itself; it's part of a communications process. You have to have some kind of communications management system." Such a system, Douglass suggests, would include guidelines for what information should be transmitted by different technological methods--and to whom--as well as how to ensure that information is accurate. "The worst thing is to be uncommunicative; the next-to-worst thing is to put out bad information," Douglass says.

Finally, as with anything else, board members who use e-mail and voice mail must respect public perceptions of their activities. "As a publicly elected official," says Westside's Kelley, "I wouldn't want to do anything to raise questions about how I operate. You just don't want to jeopardize the reputation of the district."