At its Sept. 21 meeting, the Ann Arbor city council voted to attach to the official meeting minutes any emails sent to and from its members during its future meetings. The rationale for this move – as reflected in the whereas clause of the resolution – was to “help the public monitor compliance with the amended rules.”
What amended rules? At its previous meeting on Sept. 8, the council had amended its rules to restrict emails sent by its members during meetings to two kinds: (i) messages to city staff, and (ii) messages to other councilmembers that propose language for resolutions or amendments to resolutions. No restrictions were put in place on reading emails received during city council meetings.
In adopting the Sept. 21 resolution – but at the same time rejecting a proposal to release council meeting emails dating back to 2002 – councilmembers emphasized the need to look to the future and not dwell on the past.
However, the rule changes, together with the resolution passed on Sept. 21, suggest that Ann Arbor’s city council has fundamentally failed to give adequate thought to the future of open government in Ann Arbor. Instead, we appear to be moving into the future in a way that formally ensconces a flawed understanding of the letter and spirit of the Open Meetings Act.
Why the Obsession with City Council Emails?
As a result of Freedom of Information Act requests made initially by the Great Lakes Environmental Law Center – and followed with requests by The Ann Arbor News, The Ann Arbor Chronicle and other Ann Arbor citizens – it was revealed that city councilmembers had a history dating back to at least 2007 of using their city-issued laptop computers and city-issued email accounts during meetings to engage in juvenile banter back and forth.
Partly as a result of an editorial cartoon published by The Ann Arbor News depicting Christopher Taylor (Ward 3), Leigh Greden (Ward 3), Margie Teall (Ward 4) and Carsten Hohnke (Ward 5) as little kids, one impression that threatens to linger is this: The controversy has to do with bad manners and insults.
That impression has deepened, I think, as a result of emails written by Mayor John Hieftje to constituents dismissing the problem as involving emails that are “stupid and juvenile.”
The possible historical understanding of this episode as an issue of inappropriate decorum has been further solidified by members of the community who have rallied around the emailed insults. For example, the printing of T-shirts adorned with the “dim lights” reference emailed by Taylor means that coinage that will likely remain a part of his permanent legacy of service on city council. Deserved or not, if that’s this episode’s only legacy, it would distract from a more serious issue.
For The Chronicle, this issue has never been about the fact that city councilmembers were revealed to be almost as rude, petty, and cleverly mean as many of the rest of us.
Looking past the stupid and juvenile, what the FOIA-ed email corpus reveals is that city councilmembers engaged in email communications – unseen during meetings – that related to the content of their deliberations. These emails involved communications among councilmembers that were unseen by the public, as well as unseen communications to councilmembers from constituents.
The first reference that The Chronicle published about city council meeting emails goes back to a spoken reference during a meeting nearly nine months ago.
At the city council’s Jan. 5, 2009 meeting, Greden announced, somewhat triumphantly with no apparent misgivings, that he’d just then received an email that factored into the ongoing council discussion, and he then proceeded to adduce an argument based on it. From The Chronicle’s coverage of deliberations on the City Place residential housing project:
Greden indicated that his reasons for postponing had gone from two to three in light of an email he’d just received. Reviewing the first two reasons, he began by asking his colleagues to consider a hypothetical: the staff review had determined the protest petition had fallen short. He was quite confident, Greden said, that neighbors would dispute that. They’d disagree with the staff conclusion and on that basis would ask for a postponement. “That’s the argument we’d hear and I would support it,” Greden said.
Reiterating his second reason for postponement, he said that the public benefit of affordable housing is not in the development agreement, and that if the developer is dragging his feet about putting it in writing, we’ll know that in two weeks and he would vote no at that time. Greden’s third reason also related to the development agreement: there was currently nothing in the agreement that says the developer can’t build 6-bedroom units [a unit size typically associated with student housing].
The Chronicle continues to highlight the email issue, because it affects whether our city council engages in substantive open deliberations during open meetings, or rather conducts these deliberations someplace else.
What OMA Requires: Deliberations Among Members
What does the Michigan Open Meetings Act require of public bodies? There are any number of requirements – many of them involving proper notice and access – but the core principle at stake in the case of Ann Arbor’s city council is this one:
15.263 Sec. 3.(3) All deliberations of a public body constituting a quorum of its members shall take place at a meeting open to the public except as provided in this section and sections 7 and 8.
It’s easy to misread this requirement as being mostly about whether a quorum is present. In fact, it’s where we focused our attention first, and it’s what led us initially to the erroneous conclusion that the emails provided to the Great Lakes Environmental Law Center under their FOIA request were inconclusive with respect to OMA violations.
What leads so easily to this misreading? I think it’s the inclination on the part of public bodies – and even people like us, who measure the behavior of public bodies against the standard of the OMA – to see the OMA primarily as a list of exceptions, instead of a list of requirements. That is, if you see the OMA primarily as a list of legal ways you can conduct unseen deliberations, then you’re likely to interpret 15.263 Sec. 3.(3) in a way that can be paraphrased like this:
Broad Exception: If there’s less than a quorum of members who are party to a deliberative conversation, that conversation need not be open to the public – no matter what the physical context of the conversation.
On this Broad Exception interpretation, during a regular meeting of the city council, it would be legal for deliberative emails between members of a public body to be exchanged, as well as whispered deliberations to take place – just as long as these communications did not involve a quorum of members.
But courts have consistently ruled for narrow interpretation of exceptions. And in this case, I think it was clearly not the legislative intent of the OMA to allow some of the deliberations during a meeting of a quorum of members to be shielded from public sight and hearing.
So it’s easy to reject the Broad Exception interpretation of 15.263 Sec. 3.(3). If, on the other hand, you see the OMA as a law that is primarily a list of requirements, as opposed to exceptions, then you’re likely to interpret the clause this way:
Narrow Exception: If a quorum of members is present at a meeting, and there are deliberations among its members, then those deliberations must be open to the public.
On the Narrow Exception interpretation, it’s the quorum that establishes the physical context – but then within that context, deliberations must be open to the public. On the correct interpretation of the OMA, therefore, unseen emails addressing the subject matter of the meeting are not permissible between councilmembers – regardless of how many councilmembers are involved in those emails. Moreover, from the perspective of OMA, it’s not permissible for one councilmember to lean over and whisper a deliberative comment into the ear of another.
It’s interesting that the city council’s rules – in the form of Robert’s Rules of Order, to which the council’s rules appeal for all aspects of meetings not otherwise addressed – proscribe such whispering. However, Hieftje has never enforced that rule in the time The Chronicle has covered the city council’s meetings, though ample opportunity for enforcement has presented itself.
In any case, on examination of the FOIAed corpus of email exchanges between city councilmembers during meetings, it is clear that many of these exchanges augmented the open deliberations as viewed by a public observer, thus effectively shielding a portion of the council’s deliberation from public view, which is counter to the OMA.
Because the city council has insisted that it’s important to look to the future and not to the past, we focus next on whether the council’s new rule, plus its resolution to append email communications, effectively curbs future OMA violations.
How to Tell If a Meeting Conforms with OMA
We begin by considering a reasonable monitoring standard for open meetings. Let’s say a citizen attends a meeting of a public body, and pays attention to what’s going on during the meeting. It’s our contention that during the meeting itself, it should be readily apparent to an attendee whether there are potentially violations of OMA 15.263 Sec. 3.(3):
Basic Monitoring Principle: Violations of OMA during a meeting of a public body should be readily apparent at the time of the meeting to any observer physically present at the meeting.
That is to say, if citizens take the trouble to go in person to watch the deliberations of a public body, then they should be able to size up the scene as it unfolds before them and be satisfied at every moment during the meeting that they’re seeing and hearing all the deliberations of that body.
But if members of the body operate their laptop computers throughout the meeting, it’s impossible to ascertain during the meeting whether there are unseen deliberations.
So here’s what we’ve proposed via the city attorney to the city council – a proposal they’ve steadfastly resisted.
Proposal: Prohibit use of laptop computers (and other electronic communication devices) by councilmembers during their meetings, instead providing access to electronic materials during the meeting via public technologies like projectors linked to a city staffer’s laptop.
Prohibiting the use of laptop computers and other electronic communication devices during meetings – or restricting their use by councilmembers to the time of their speaking turns – would be a straightforward step that would satisfy the Basic Monitoring Principle. Access to the contents of the electronic meeting packet could be provided during a meeting by projecting it onto the wall through a laptop computer operated by city clerk staff. Any councilmember could request the projection of specific elements of the packet at any time during the meeting. The city’s planning commission and the historic district commission meetings already function quite effectively in this way. It’s a way that ensures that members of the public body and the public are quite literally “on the same page.”
Such a council custom of not allowing the use of electronic communication devices during its meetings would thus not impose an unreasonable burden on councilmembers, while at the same time satisfying the Basic Monitoring Principle. In fact, I would argue that this custom would promote more thorough preparation in advance of the meetings – such preparation as could be accomplished through interaction with fellow councilmembers at Sunday night caucus, for example.
Our proposal contrasts with the approach to the future taken by the city council, which is now by rule prohibited from engaging in violations of OMA 15.263 Sec. 3.(3), and which by resolution provides a delayed mechanism that the public can use to monitor compliance with OMA.
We leave aside the fact that the monitoring mechanism itself is incomplete – we don’t believe it’s the intention of the city to attach to the minutes emails sent from personal accounts, or web browser history files that would reflect internet activity like Facebook page updates, or the data from any keystroke loggers installed on city-issued laptops.
The larger point is that it’s unreasonable to expect citizens who attend a meeting to wait any period of time after the meeting to find out whether the meeting they attended included deliberations that were unseen at the time. Yet this is what the city council is asking Ann Arbor citizens to accept. Otherwise put, citizens attending an open meeting can’t tell at the time if it’s actually open.
Worse still, suppose the email communications appended to the official minutes show that deliberations took place via email? What then? There’s no remedy specified in the new council rules to handle that eventuality. That again suggests that this new rule on electronic communication does not serve council’s stated goal of looking to the future – because at some point they’re going to violate that rule.
Why do I think so? As Sandi Smith (Ward 1) pointed out during deliberations at the city council’s Sept. 14 meeting, Mike Anglin (Ward 5) had sent her an email during a previous meeting – not long after holding forth on the virtues of keeping everything at meetings transparent.
Communications Addressing Members: A Hypothetical
The Open Meetings Act also speaks to the fact that members of the public are entitled to address a public body:
(5) A person shall be permitted to address a meeting of a public body under rules established and recorded by the public body. The legislature or a house of the legislature may provide by rule that the right to address may be limited to prescribed times at hearings and committee meetings only.
Under Ann Arbor’s city council rules, there are basically three different times for the public to address councilmembers during their meetings: at the start, at the end, and at any public hearings that might be scheduled.
What makes a meeting orderly is that the times when councilmembers can be addressed are set forth in the council rules. And orderliness is important because some basic principle of fairness should prevail – everyone who wishes to address councilmembers during their meetings and thereby influence their decision-making on the matters before the council should conform to the same set of rules. For example, it would be unfair if some members of the public were given only three minutes of speaking time, but others were given 10 minutes.
Rules on public speaking are unflinchingly enforced by Hieftje. If you have not seen him bring Thomas Partridge’s speaking turn to a halt with a curt “Thank you,” then you have not attended many city council meetings.
Likewise, when members of the public recently joined in the chorus of a song performed by a public speaker, the mayor threatened to clear the room. The principle he adduced was one of fairness, based on the idea that only one person is allowed to speak at a time.
In that context, I posed the following hypothetical question to city council’s caucus on Sunday, Sept. 20.
Hypothetical Address of Council: Suppose all 11 councilmembers are fluent in American Sign Language. Suppose a deaf citizen attends a meeting of the council, sits in the back row, and begins to sign throughout the entire meeting, directing his remarks to city councilmembers. Is that signer out of order?
It’s fair to say that the three councilmembers present at caucus were flummoxed. For his part Hieftje initially wanted to know if the signer was saying derogatory things about councilmembers. Sabra Briere (Ward 1) zeroed in on the question of whether the signing from the back row was distracting to either councilmembers or the other public in attendance. And Mike Anglin (Ward 5) mused that if someone were to start addressing the council in French, he figured they’d be asked to stop, on account of people not being able to understand what they were saying.
When directed to focus specifically on the possibility that the ASL signer was lobbying councilmembers throughout the meeting – outside of the prescribed times allotted for people to address them – at least Briere came to the clear conclusion: That signer would need to be ruled out of order.
What the hypothetical example illustrates is that the question of the ASL signer being out of order in addressing the council does not depend on whether the communication physically disrupts the meeting. It depends solely on whether the ASL signer is unfairly given an opportunity to address the councilmembers in a way that is not available to just anyone, and in a way that ultimately violates the Open Meetings Act, which requires that people be permitted to address councilmembers under rules of the council.
By extension, if someone were to send an email to councilmembers during a meeting, and any of them had an opportunity to read it during the meeting, that way of addressing councilmembers during a meeting would violate the council rules on address, and thus violate the OMA.
The newly enacted rules of Ann Arbor’s city council do not specifically proscribe receipt and reading of emails by councilmembers in the first place. And even if they did, it would not be possible for the attendees of the meeting to ascertain during the meeting if a violation of the council rules on address – hence the OMA – had been committed.
In contrast, what we have proposed – banning the use of laptops by councilmembers during their meetings – eliminates the possibility of OMA violations caused by people addressing the councilmembers out of order.
Our proposal to eliminate use of laptop computers by city councilmembers during their meetings eliminates the possibility of two kinds of OMA violations: (i) deliberations that are not open to the public, and (ii) violations of rules governing how public bodies may be addressed. The proposal thus ensures that citizens who attend city council meetings need not wonder if the meeting they’re watching includes such violations.
Given that the council’s rule-plus-resolution approach affords no such assurance against future OMA violations and additionally encumbers city staff with the attachment of email communications to meeting minutes, it would make the most sense for the city council to revisit its rules and incorporate our proposal into them.