HomeMy WebLinkAbout20090202 - VIII-C-3To: Mayor Hicks and City Councilmembers
From: David M. Osberg, City Administrator
Date: January 27, 2009
Re: City Council a-mail
The City has created email accounts for elected officials to use for city-related business and for a
consistent email address configuration for the public to use to access elected officials via e-mail.
Attached to this is a memo from City Attorney- Dan Fluegel. addressing electronic communication
and Open Meeting Law requirements. In his memo, he addresses public data considerations, as
well as issues for elected officials to be aware of to maintain compliance with the Open Meeting
Law requirements.
The City email address is available to be used for City business and we plan to use this e-mail
address as the Council's contact for website and other public information purposes, and will
begin to communicate this change to the public. Any personal or campaign emails should still go
tluough your own personal email account.
We are also attaching astep-by-step e~-planation of ho«~ to remotely access your City email
account, including how to make sure e-mails are getting in your Inboi, and not filtered by our
Spam software.
You will be given an individual user name and password. Please keep this login information
confidential.
Effective Thursday, Januai~- 29, these e-mails will be activated and you will be able to access the
account and become familiar with the layout of the email. Additionally, we have placed this as
an "Informational" item on the Februan- 2, 2009 Council agenda. You are encouraged to access
your account over the weekend and let us know if you have anV questions or concerns that we can
help address.
If you have difficulty accessing the site or misplace your user name or password, the IT
Department staff can assist you. They can be reached at 651-480-2361 (help desk phone number)
or at itdept~ci;ci.hastiiigs.nui.us
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Donald J. Fluegel
Daniel J. Fluegel
Sean R. McCarthy
FLUEGEL LAW FIRM P.A.
Attorneys At Law
1303 South Frontage Road, Suite 5
Hastings, MN 55033-2477
Telephone 651-438-9777
Fax 651-438-9775
MEMORANDUM
TO: HASTINGS CITY COUNCIL
FROM : DANIEL J. FLUEGEL, CITY ATTORNE
DATE: JANUARY 28, 2009
RE: ELECTRONIC COMMUNICATIONS AND THE OPEN MEETING LAW
I am writing to provide some general guidance and suggestions to the City Council relating to
electronic communications and the Open Meeting Law. In an effort to improve the system by
which the City can respond to any requests for public data or information, the City is establishing
email accounts for each of the Council Members that will be maintained on the City's email
servers. Attached to this memorandum is additional information regarding your new City email
accounts, including the new email addresses.
Most email correspondence between Council Members is considered public data under the
Minnesota Data Practices Act. Having City email accounts rather than utilizing personal email
accounts will prevent the need to review content on personal email accounts to determine if any
data contained therein needs to be disclosed upon request. The new City email accounts should
only be used for City business.
I am also attaching a Memorandum from the League of Minnesota Cities dealing with electronic
communications between council members. The League Memorandum provides a very good
summary of issues council members should keep in mind. As noted, email correspondence can
be an unintentional conduit for City officials to violate the Minnesota Open Meeting Law. By
taking preventative steps, City officials can avoid inadvertently violating the Minnesota Open
Meeting Law.
I ask that you take specific note of the cautions regarding serial meetings. Serial meetings can
occur in a number of ways including a series of telephone conversations or emails. As you
know, a quorum of the Hastings City Council requires the meeting in some form of four or more
Council Members but a quorum could also exist with a meeting of less Council Members if those
Council Members are also part of a committee, or of there is ever a vacancy on the Council. As
such, caution should be exercised whenever there are communications by email, or other means,
between Council Members. Council Members should limit emails to communications between
only two members and the "no forwarding or copying rule" should also be followed.
y Also admitted to practice in Wisconsin
I think it is also important, as noted in the League Memorandum, that no guidelines or rules can
perfectly address and prevent all potential violations of the Open Meeting Law. Instead, Council
Members will need to look at each situation on a case-by-case basis and ensure that no
communications are undertaken that could be considered a serial meeting and violation of the
Open Meeting Law. In addition, if any Council Member would happen to realize in the future
that an unintentional violation may have occurred, I suggest that you contact either myself or
Dave Osberg immediately so that subsequent steps can be taken to document the violation was
unintentional and there was no specific intent to violate the law.
Once you have had an opportunity to review this information, I encourage you to contact either
myself or Dave Osberg to discuss any guidelines that you believe should be implemented or any
questions that you may have.
lmp
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LEAGUE of CONNECTING & INNOVATING
MINNESOTA SINCE 1913
CITIES
RISK MANAGEMENT INFORMATION
ELECTRONIC COMMUNICATIONS
BETWEEN COUNCIL MEMBERS
E-mail correspondence can be an unintentional conduit for city officials to violate the Minnesota
Open Meeting Law. This memo outlines some points elected officials and members of city
committees and boards should be aware of to avoid inadvertently violating the Open Meeting Law.
The Open Meeting Law
Under the Minnesota Open Meeting Law, Minn. Stat. § 13D, meetings of at least a quorum of the
city council or one of its committees to discuss city business must be publicized and open to the
public, subject to a few exceptions. A primary purpose of the law is to make sure information and
deliberations about city business are available to the public.
The law applies to any discussion about city business, not just voting or official actions, and to any
gathering of a quorum of the council or committee. In most cities a quorum is three or more
council or committee members.
It's easy to imagine situations where a quorum might gather -coffee at the local cafe, pre- or post-
meeting discussions, a wedding reception or community celebration are all common spots for
councilmembers to meet. There are also some not-so-obvious ways a quorum might meet, for
instance in a serial meeting -imagine Council Member A talks to Council Member B, B talks to
Council Member C, and C talks to A. Another is through written correspondence, or through
telephone conference calls. Any of these scenarios would create an open meeting concern if the
group discussed city business.
Violating the open meeting law carries with it penalties including personal liability for up to $300
per occurrence and forfeiture of office for officials who intentionally violate the law three times.
Reasonable costs and attorney fees can also be awarded if the court finds specific intent to violate
the law.
Electronic communications and the Open Meeting Law
The Minnesota Open Meeting Law has a number of tricky aspects, not the least of which results
from increasing reliance on a-mail communication between council or committee members.
E-mail makes a serial meeting easier by allowing council or committee members to forward
messages from one person to the next. Imagine one Council Member e-mailing another to suggest
the pros and cons of a particular city decision. The recipient forwards the e-mail to another
This material is provided as general information and is not a substitute for legal advice.
Consult your attorney for advice concerning specific situations.
LEAGUE OF MINNESOTA CITIES 145 UNIVERSITY AVE. WEST PHONE: (6S1) 281-i2OO PAx: (651) 281-1298
INSURANCE TRUST ST. PAUL, MN 55103-2044 TOLL FREE: (8OO) 925-1122 WEB: WWW.LMC.ORG
Council Member, along with his or her own comments and interpretations.
Even if the last Council Member to receive the a-mail doesn't reply to either the originator or the
Council Member who forwarded the message, the three members have still discussed city business
outside a public forum. A violation could be found where serial e-mailing is used to reach a
decision.
Many cities are moving toward electronic meeting packets for councils and committees, often sent
via a-mail attachments. This sort of one-way distribution of information is fine in terms of the
Minnesota Open Meeting Law, remembering that any materials relating to the agenda items of a
meeting distributed to members must also be made available to the public as well.
City officials should start to get concerned, though, when one or more Council Members use the
"reply to all" feature in a-mail to respond to the content of the meeting materials, or otherwise
begin a discussion by e-mail about the packet. This can begin to look a lot like non-public
discussion of city business.
Suggestions
One suggestion is that Council Members never communicate to one-another using a-mail, but
instead treat a-mail only as a way to receive information from the city clerk or administrator. If a
Council Member has information to share via e-mail with the rest of the group, he or she might
send it to the clerk and ask for it to be distributed from the clerk to everyone else (by a-mail or in
paper form).
Using the clerk as the clearinghouse for information distribution is probably a safer alternative
than having Council Members communicate directly, although it doesn't completely eliminate
concerns about violating the open meeting law. Even this clearinghouse concept could provide
opportunity for three or more Council Members to exchange opinions about city business, so it's
important that the city clerk be aware of and watch for possible issues. Finally, this model would
still present problems in Standard Plan cities, where the clerk is also a member of the council.
If Council Members are engaged in direct a-mail discussions, it's probably best to limit it to only
two members. A "no forwarding and no copying" rule might be a good way to make sure the
Minnesota Open Meeting Law isn't unintentionally violated through a-mail conversation.
Finally, be careful when Council Members participate in a listserv or any chatroom sort of forum.
Because these distribution lists may include a quorum of your council, one Council Member's
comments on the listserv will be viewed by other members. If the topic has to do with city
business and another Council Member replies to the listserv, it could prove problematic under the
Minnesota Open Meeting Law.
Again, the city might consider a "no reply" sort of rule when it comes to these resources, or
perhaps have Council Members send ideas for postings or responses to the city clerk or
administrator to manage. Remember, too, that official city committees are subject to the same
open meeting requirements and should be similarly educated about correct a-mail use.
2
Regardless of precautions, there may be times when Council Members find themselves accused of
violating the Minnesota Open Meeting Law, perhaps having unintentionally engaged in one of
these sorts of conversations. One way to diffuse some concern is to immediately release copies of
all a-mail correspondence to anyone who wants to see it. While this doesn't negate the possible
violation, it shows good faith and lack of specific intent to violate the law.
Draft guidelines for electronic communications between Council Members
Cities might decide to develop policies clarifying appropriate or preferred email use by and
between Council Members. Even if a city doesn't formally adopt a policy, the guidelines here
might be helpful for any elected official or city board member to follow.
The purpose of these draft guidelines is to suggest how members of city councils and other city
committees might communicate via email and electronic means. A city should review these draft
guidelines along with its normal operating procedures, consult with the city attorney and determine
the best course of action.
Ann Gergen 11/07