Interesting article in today's Boston Globe about the use of communication technology *during* open meetings. The subtitle, "Open Meeting Law puts reins on gadget use at meetings," is somewhat misleading, however, as it suggests (to me, at least) a recent change--no such change has been made.

In my opinion, town officials and employees should take advantage of communication and other technology to better serve Wayland residents. Of course, they should do so without violating the OML. We should remember that it doesn't take new digital technology to run afoul of the law--meeting in person, picking up the phone, or even taking advantage of the US Postal Service can all be in violation if not used properly.

Here's a succinct excerpt from the Attorney General's Open Meeting Law Guide.

The Open Meeting Law defines deliberation as “an oral or written communication through any medium, including electronic mail, between or among a quorum of a public body on any public business within its jurisdiction.” Distributing a meeting agenda, scheduling or procedural information, or reports or documents that may be discussed at the meeting will not constitute deliberation, so long as the material does not express the opinion of a member of the public body. E-mail exchanges between or among a quorum of members of a public body discussing matters within the body’s jurisdiction may constitute deliberation, even where the sender of the email does not ask for a response from the recipients.

To be a deliberation, the communication must involve a quorum of the public body. A quorum is usually a simple majority of the members of a public body. Thus, a communication among fewer than a quorum of the members of a public body will not be a deliberation, unless there are multiple communications among the members of the public body that would together be a communication among a quorum of members.

Based on my read of the OML, here are some official uses of communication technology that would appear to be allowed (albeit not necessarily wise) and disallowed official (as opposed to personal) during open meetings.

ALLOWED
  • Looking up information (whether that information is shared or not)
  • Members fewer than a quorum communicating with each other or members of the public


DISALLOWED
  • A quorum or more of members communicating with each other or members of the public*


*An interesting side question is whether the "disallowed" item above is disallowed if the communication is made public. Consider this progression of actions.

1. A quorum or more of members post comments that constitute a deliberation on a public discussion forum such as this one. As I understand it, nothing in the OML prohibits this action.

2. The same members make the same comments using a service such as Yahoo Groups. Even if the members use email to make these comments, the service creates an instant public record of the comments. In essence, this action is no different than action 1, above.

3. The same members make the same comments using "conventional" email, but later make those email messages public (for instance, on the board's web site). The "later" adds a new twist--how much later (if at all) is allowable?

4. The same members make the same comments using email, noting in that email that the messages are public and available on request, but not posting them anywhere. It's of course difficult if not practically impossible for the public to request such messages if they don't know they exist.

The issue raised by actions 1-4 is whether a deliberative email or other exchange not in person by a quorum or more is allowed at all. The OML clearly calls such an exchange a deliberation governed by the OML, but seems to be silent on whether it's allowed if public.

One clue might be in this clause from the AG's OML Guide.

The Attorney General is authorized under the Open Meeting Law to permit remote participation by members of a public body not present at the meeting location. This issue is under consideration by the AGO. While the issue is under consideration, remote participation by members of public bodies is not permitted under the Open Meeting Law.

One interpretation of this might be that the sending of an email (or posting of a discussion forum item) would be considered "remote participation," thus making actions 1-4 above prohibited.