Open meetings in the information age

Let's not lose sight of the real issue.

It is not appropriate for two (or more) elected officials to exchange text messages in the midst of a Town Council meeting. The only information exchange that should be happening is that which is publicly stated (or made available to the public via meeting minutes).

If someone wants to make a "more informed decision", they can research the topic prior to (or after) the meeting. They can even do it during the meeting as long as what they are doing is made public. During the couple of hours the meeting is going on, elected official's discussion are supposed to be "open". A discussion does not have to be private in order to "allow them to make more informed decisions."

If we were to follow that line of logic, then the Chapel Hill Downtown Economic Development Corporation having a closed door meeting wouldn't have bothered anyone.

Elected officials need to pay attention to what is going on in the meetings. If they are using their Palm Pilots to take notes, they don't *blip* (or play the alert tone when an IM is received) while sitting on the table.

Paul, I'm not talking about whether these particular Board memebrs were messaging each other. I'm content to let the Board look into that and decide whether it really happenned and what to do about it.

I'm trying to discuss the larger issue of the role of technology in meetings. It is not OK to simply ban any devices that are capable of communicating with the outside world. On almost every important decision of the different Boards I have been on over the past 13 years, I have made notes on the agenda before the meeting and written down thoughts related to what others have said during the meeting. All of this allows me to me to collect my thoughts, ask better questions, and make better decisions.

I sometimes find it helpful to use digital devices to make these notes so that I can organize them better. I am not going to conform to some luddite standard just to assure you that I am not actually sending mesages to another board member. We have to be more sophisticated that that.

We have to understand both helpful and negative aspects of the technology. I think we should welcome it where it can make us more effective, and develop meaningful guidelines to make sure it is used fairly and of course legally.

The law says that those communications would be public records just like e-mails.

kmr

What about a private e-mail ("honey, I'll pick up some milk on the way home")? Is that public record just because it's sent during the meeting? If it was sent 5 minutes before the meeting started, it wouldn't be, right?

What about posting to a public website? Is it already public enough, or would the elected official have to notify someone? Again, what's the difference between doing this during a meeting and immediately before or afterward?

What if I post to a website and they happen to read it during the meeting?

BTW, I have added a link to the statute above.

Ruby,

Thanks for posting a thread on this subject. The Chapel Hill Herald wrote the story based on a Guest Column I submitted to them on November 18th. In my column, I outlined a series of events which led to my ultimate conclusion: Commissioners Gering and Hallman were indeed sending text messages in a public meeting.

You can read my guest column, as I submitted it on November 18th, at my website: http://www.paulnewton.com/

And yes, I believe both Gering and Hallman have similar models of Palm Tungsten PDA's ... not the bottom of the line ... complete with the wireless technology used to send text messages.

Regarding their "trying out" the technology ... they couldn't do that at home or outside of the meeting? Both individuals are highly intelligent, degreed and technology savy. Their statements do not match what I witnessed and I find them to be unbelievable.

Thanks again Ruby!

Ruby,

Just a clarification. My accusation is that Gering and Hallman were sending text messages to one another ... not (as far as I know) to anyone outside of the "Town Barn".

Hallman and Gering denied the charges, but said they had tried unsuccessfully to communicate using the devices.

“We've tried, and it just doesn't work,” Hallman said.

By saying this, regardless if they were able to get their PDA's to work (which I believe they did), they admit their intent was to communicate via wireless technology during an open meeting. In my opinion, that is wrong and, if nothing else, disrespectful and rude.

http://www.paulnewton.com/archives/2004/11/pda_messaging_i_1.html

Thanks

What portion of the open meetings law do you think they are violating by electronic communications?

As for the etiquette, I'm somewhat torn. I want my public officials to be seeking out as much information as they need to make wise decisions. But I've watched too many students sit in class (not mine!) and play games or IM with friends rather than paying attention. Maybe it's the intent of the communications that determines whether its disrepectful and/or rude?

Are two board members allowed to whisper or speak in a low tone to one another during a meeting? Seems people do that all the time in public meetings.

This story was picked up by Associated Press. They present some additional information on open meetings laws and how they pertain to electronic devices:

http://www.newsobserver.com/news/ncwire_news/story/1937712p-8293811c.html

State law requires public bodies to make decisions in public, and to keep "full and accurate minutes" of their deliberations. It also specifies that when officials conduct a meeting by "conference telephone or other electronic means," they have to give the public a way to listen in.

Using PDAs to exchange information would be inappropriate, said Mike Tadych, a lawyer for the North Carolina Press Association.

My problem with using a PDA or even whispering is that they should be paying attention to the meeting.

Honestly, it's just RUDE. That's all that needs to be said. They should be focussing (sp?) on presentations, discussion, and speakers, NOT playing with their Palms.

Melanie, they could be taking notes that will alllow them to make more informed decisions. Is it OK to write notes on paper but not on a laptop or "palmtop" computer? I don't want to be getting in the way of more informed decision-making.

We have an open meetings act so everyone is playing from the same field before, during, and after a meeting. The assumption here is that a meeting is a time frame in which all members are physically present. I'd like to reframe the question of this discussion to: How can new technologies enhance the public decision making process (as opposed to suppressing the use of new technologies in compliance with the law).

New technologies such as PDAs can be implemented by simply laying the technology on top of current practices or we can rethink the practices to determine how technology can help improve the practice. Paul clearly comes down for option #1. As I understand his opinion, he thinks the current process of having council members sit up front, listening to speakers, then having a fairly controlled public discussion is a good process and that technologies do not have a role in the process because they don't show up under the sunshine.

Personally, I don't see that process as either efficient or enlightening. Nor do I think the rationale used by council members or committee members to make decisions is always publicly articulated even if we do hear everything that is said out loud at the meetings.

So I'm in favor of option #2 (rethink the process in the context of the benefits offered by the technologies). I've been looking for research on what other communities who are more technologically oriented are doing. Will report back if I find anything.

Ruby--I didn't say they shouldn't be taking notes (although....isn't that what a secretary is for? and minutes/transcripts?) I DO believe paper and a pad is less distracting to others present. Now, if someone were incapable of USING pad and paper, that would be a good reason to have a laptop. Evertried to take notes on a palm? Typing anything extensive on a keyboard that small takes an awful lot of concentration...

Howsomever...these two WERE playing with thier palms. ( They as much as admitted it. ) As adults play. I've seen it more than once...bored adults trying to figure out how strong their signal is, or to whom they can message...that sort of thing.

I know teachers who ban the use of laptops, palms, Blackberries, and cellphones in their classes for note-taking (unless a student has a demonstrable need.) The sound of all those clicking keyboards....sometimes the old fashioned tools ARE the best!

Melanie--are you suggesting that policy decisions or public opinions be made on the basis on a single (negative) incident? What is the positive potential that could be lost? Right here on this blog are long discussions about issues where the public meeting process has proven to be flawed (cemetary, Airport Rd, gifted education......)

I just don't see this as an issue of note taking with or without the use of technology. To me, how one takes their notes is of no consequence and is really a separate discussion.

My concern regarding the use of PDA's to exchange text messages between elected officials stems from the aspect of having an open meeting as prescribed by law. That was the point I raised in my guest column to the Chapel Hill Herald and the point broadcast in the media last week.

I also see this as a matter of being polite and respectful to the other members of the board and the constituents.

A PDA is a personal convenience, yes, but I think one would be hard pressed to prove they make a noticable difference in government meetings today or make them more "efficient" or "enlightening". Melanie brings up a good point about the devices being distractions. A prepared board member can print out any information from a PDA prior to the meeting if they anticipate the need of any information from it.

Perhaps there is a way (within the current constructs of the law) to make these devices and wireless technology more useful and meaningful as has been previously suggested. Again, I see that as a different and separate discussion.

Perhaps technology is a part of the solution in the case of Hillsborough. There are Mobile Blockers that will inhibit wireless communication although they don't seem to be legal in the United States. Then, of course, there is always a video camera.

My point was that there could be good reasons to use technology in a public meeting and that perhaps the challenge is to figure out how to incorporate any information gleaned from the use of the technology into the public record. For example, when the CH Town Council had their last discussion on the Chapel Hill cemetary, one council member had access to the full application to the Historic Register rather than just the partial application that had been provided in their package. Don't you think it would have been acceptable for her to share that full application during the meeting by emailing it or putting it on a shared drive?

There could also be times when electronic information is available but not in the package. For example as the council was talking about the different sections of the cemetary, wouldn't it have been acceptable to look up a GIS map of the cemetary (if one existed) or previous budgets if they hadn't been provided? Have you ever seen the package members are given before a meeting? With a good search/ navigation design, it would be much more efficient for those resources to be used in the decision making process if they were digital. Flipping through pages is just as disruptive as key clicks IMHO.

The two guys who got caught playing were not using the technology wisely. But they shouldn't be the basis for making policy or forming opinions.

"Airplanes are interesting toys but of no military value."
Marechal Ferdinand Foch, Professor of Strategy, Ecole Superieure de Guerre, 1910

No Terri--I wasn't REALLY suggesting they outlaw the use of PDA's (anyone else remember when that meant Public Display of Affection?)based on one incident of misbehavior. It was more a rant on the rudeness that this technology seems to encourage. My apologies.

What if one was messaging to the other "Call the question, quick."

What's wrong with that?

The main editorial in today's (12/23/2004) Chapel Hill Herald addresses this issue:

http://www.heraldsun.com/opinion/chhedits/57-558197.html

Kudos to the editors of the CHH for a great editorial!

I think the Herald's editorial casts too broad a net. The telephone conferences referred to in the editorial are only implicated when they incorporate a quorum of the board and business is being conducted. The initial question has to be: Is the communication being conducted in the course of a meeting?

Subsidiary questions:
Is there a quorum of the board participating? Do communications between two members of a board fall within, as the editorial puts it, the "board us[ing] electronics to communicate"? Are two members The Board? If less than a quorum is communicating you could argue that this doesn't implicate the public policy concerns stated in the statute since less than a quorum can't take official action. Arguments for or against a particular position would have to be aired publicly and be open to public scrutiny before a vote is taken and the subsequent vote would have to be taken publicly.

Also: Is actual business, in the meaning of the statute, being conducted? If the board members are discusses where to go have a drink after the meeting, it doesn' have to be, under the law, anyone's business but there own.

Also, I think the editorial's characterizations of whispers and notes as constituting "social habits" fails to distiguish an electronic text message from passing a note down the table.

The strongest argument is the last one that basically asks, what are our community standards? This is a great question and a great conversation to have. Please don't think that my quibbling with the editorial is a personal endorsement of using these devices in this manner. I'm not sure how I feel about it yet, but I think it's distiguishable from many of the complaints made about it so far.

Mark K. wrote, "The strongest argument is the last one that basically asks, what are our community standards? This is a great question and a great conversation to have."

I fully concur that it is an important conversation to have. In another thread (Paying Our Dues), I worte,

"Ruby, re. the comment to Bill, maybe a separate discussion on “values” might be useful, especially given the comment by Finance Director Kay Johnson:

“‘The citizens' group will represent and express community values,” Johnson said. “If the consultant was to evaluate the budget in a vacuum, they might find that something is inefficient. But the committee might find reducing funding would lessen the level of service the community wants to obtain. Their job is to act as a sounding board for the consultant.'”

What are the “community values” that the group will represent. Was the renaming committee make-up a similar endeavor?

I would be curious to hear the various viewpoints on this.

Comment at 5:15pm 12/16/2004 by Fred Black"

Is there a wide consensus on our standards and values?

The community values issue and the
makeup of the finance advisory committee
are good subjects to discuss, but this is
the thread on technology in the information
age; hence I'll keep my eye on that ball.

Council member Sam might write a note that
reads "How are you going to vote on the
Smith-Jones permit?" He then passes the
note to council member Barbara, and
she writes back "Yes, but only if there is
more low-cost housing".
As alternatives, they might whisper,
or communicate with text messages using
some sort of hand-held computer.
To me, all three are the same.
How could the technology matter?

This is an interesting gray area. You could look at them as cloakroom conversations.

To Paul's point, here's the way I would handle it as a reporter. First, I've never felt like I couldn't ask to see any notes passed. I would assume I could see them if I pressed to do so whether the law says I can or not. The law only says when people can refuse to provide information if they wish to refuse. So, given I thought the exchange was an important part of the deliberations of an important issue:
1. I'd ask the parties seperately if they were communicating during the meeting.
2. I'd ask them what they were communicating about.
3. I'd write down what they say about it. If they refused to talk about it, I'd put that up high in the story (and file a formal, written request). Then I'd call them the next day and ask the same set of questions.
4. Rinse and repeat.
This usually works.
BTW, I like the live blogging idear.

kmr

The intent behind the open meetings law is to assure an even playing field for decision makers and those who want to influence decision makers. Allowing electronic communications in meetins isn't just a yes or no decision. It requires looking at how we best meet the intent of the law under current conditions, including new technologies.

Rather than just laying technology over top of current practices, consider how the practice of public meetings could be positively impacted through the use of new technologies. Instead of using the new media as an after-the-fact information delivery vehicle, it could actually play a part in the decision making process by 1) providing additional opportunity for input in advance of a council meeting (e.g., blogs, listservs), 2) making the options reflect multiple constituencies and then helping to narrow the options down after public input has been received (surveys, polls), 3) allowing petitions to be submitted online so that the general public could know in advance what their neighbors were promoting and prepare a response BEFORE Council acted, and/or 4) use all this input to a build a case for/against a topic by link all this together (hypertext) into a public record available for council's use in decision making.

This proposal uses technology to reconceptual "a meeting" from a single, time-limited coming together to a coming together on a topic, OVER TIME. To me this is much more inclusive that our current approach to meetings.

Paul, I don't think such things are obviously against the rules. The communication would have to be a "simultaneous communication . . . [by] electronic means" to constitute a violation of the law. Individual communications via PDAs (regardless of the content of the message) or passing notes, small conferences consisting of less than a majority, and even bumps and nudges don't necessarily qualify as rule breaking activities.

Mark

This is a complicated set of issues for me -- I don't think it's a single issue. As you might guess, I'm strongly in favor of electronic communications, research and fact checking and even having access to prepared speeches electronically. But I'm also in favor of open government and open information.

In theory, there should be no comments and discussions by Council or Board members during a meeting that are not entered into the public record. But in my time, I have see members pass notes, enter into small conferences, bump and nudge each other, etc -- all of these like the PDA exchange (assuming there was some content to that exchange which I don't think has been resolved) are obviously against the rules. Never have I seen the rules enforced against these kinds of non-electronic communications. Perhaps someone who has been covering Boards and Councils for a while can point out an example. The journalist in me would love to see the rules enforced or at least mentioned.

On the other hand as a citizen, I would love it if the Councils and Boards etc were actually checking facts, reviewing notes and the like. I would not like it if they were inviolation of the rules having private converations with other citizens, staff, other elected officials etc during a public meeting. I would object to someone having a radio receiver on his back during a debate for example ;->

I did enjoy using the wireless capacity of the Chapel Hill Council Chambers to live-blog about the eVoting forum there. I would like if it someone, like the local press but not restricted to any of them, would live blog council meetings and even board meetings. I know there are official agenda, but a newsy version would be good too. That could be done best with in-house electronics.

BTW once my collegues have returned, I'll see what the general feeling is about this set of issues. My guess is 1) using communications for some purposes is fine 2) using communications, electronic or otherwise, for prohibited purposes is wrong 3) where is the enforcement in any case?

The State House and State Senate in North Carolina have taken very different approaches to electronics. the Senate bans use of laptops, PDAs, pagers, cell phones, whatever, on the floor.

The House, on the other hand, allows use of PDAs and laptops. There are usually 20 or 30 members using their wireless laptops on the floor at any one time. Many of them may be getting communications from constituents DURING the debates, and in fact, many of the communications may be from constitutents who are listening to live audio of the session on the internet!

Members may be doing last minute research on speeches they are about to give. Some may be answering constituent emails.

Last night the Chapel Hill Technology Advisory Committee was asked to stop using a listserv for group communications. More information available on my blog:
http://localecology.blogspot.com/

More on my blog about how email is handled as a public record.
http://localecology.blogspot.com

I've now heard from the Attorney General's office and a Public Records analyst. Notes posted at:
http://localecology.blogspot.com/

Folks, this discussion is coming forward again this evening. Not surprisingly, our Town Manager inserts his opinion above that of one of the key drafters of our State's Open Meetings laws, David Lawrence, and says he believes squelching openness is in the best interest of the public.

More background info on tonight's agenda items:

Response to Electronic Meeting Proposal.Response to Petition re: Access to Town Council Email and that the Town Publish Detailed Financial Information on the Town's Web Site.

If you're interested in the balance of power between top Town Management and our elected officials, you might want to show up this evening and voice your concerns.

Agenda Item #11 was provisionally passed. Essentially, Chapel Hill's Technology Board will function as a testbed for electronic communications (email + blpg) for 1 year. Council expects quarterly updates on how well it functions. As soon as it's up an running I'll pass the link on....

I suggested a compromise for Agenda item #5e, asking to be put on the distribution lists until the list-serv infrastructure is in place. There's been so much foot-dragging on providing access to these open documents, I would've thought going ahead was a "no brainer". I guess I'll hear the Counci response to that next week.

As far as the detailed financial records, I'll be picking up an electronic copies of the MUNIS system reports every month. Right now it just doesn't seem worth the fight. My first set will cover 2005. I'll be publishing my analysis of the figures, any surprises or anomolies on willraymond.org.

With budget season upon us, I imagine other folks will be requesting the same reports. I assume at some point the Town will give in and post these financial records on the Town's website to "streamline" access to these open records.

I was a bit confused on what part of #11 was passed. Was it the meeting format (listserv with read-only participation by non-committee members, combined with a blog) put forth by the Tech Comm chair but not approved by the full committee? (The committee voted not to endorse the Chair's proposal which was sent to the Manager before being presented to the committee.) Or did Council just approve the concept of electronic meetings?

I'm also a bit confused on the exact nature of WIll R's request for detailed financial records. MUNIS is a proprietary software system. Will, does your request include changing the backend financial software used, or were you asking for staff to convert certain monthly reports to a web format? This is one of the challenges we face in moving forward with the concept of e-democracy. The town has made investments in systems that are not compatable with citizen desire for open access, and the cost of changing systems is significant, as is the cost of work arounds to meet citizen demands. The Tech Committee has not done a good job of helping Council and the Town Manager understand the limitations of proprietary software systems.

The MUNIS reports are "simple" textual data dumps. I imagine I'll have to wrangle with them a bit to get them into an Open Format.

I disagree about the TB's analysis and discussion on closed, proprietary software and formats. We've definitely communicated to the Town Manager's rep our concerns. As fa as Council, yep, we still need to draft a policy and get their buy-in.

For those following the bouncing ball....

I received a letter today, as a member of the Tech Board, from Town Attorney Ralph Karpinos. He warns us, as our Board's legal counsel, that proceeding with electronic meetings opens each individual member, under NC Open Meetings Law NCGS 143-318.16B, to threat of monetary damages. To wit,

§ 143‑318.16B. Assessments and awards of attorneys' fees.

When an action is brought pursuant to G.S. 143‑318.16 or G.S. 143‑318.16A, the court may make written findings specifying the prevailing party or parties, and may award the prevailing party or parties a reasonable attorney's fee, to be taxed against the losing party or parties as part of the costs. The court may order that all or any portion of any fee as assessed be paid personally by any individual member or members of the public body found by the court to have knowingly or intentionally committed the violation; provided, that no order against any individual member shall issue in any case where the public body or that individual member seeks the advice of an attorney, and such advice is followed. (1985 (Reg. Sess., 1986), c. 932, s. 2; 1993 (Reg. Sess., 1994), c. 570, s. 3.)

Wow!

He goes on to say

I bring this statute to your attention because I believe I have an obligation as your attorney to do so and inform you of the potential risks in proceeding under the proposal outlined by Town Council.

The Tech Board is an advisory board only - no regulatory powers at all. It's difficult to imagine what scenario would result in our personally being sued but....

I'm wondering whose interests are best protected by closing our communications.

Message sent and message received!

I received the same letter. So the Council says "go ahead and try it out" and the lawyer says "you can be personally sued if you do." At least one member of the committee also unsubscribed himself from the listserv, I presume in response to the letter.

Will,

The NC Statutes clearly bring advisory boards under the auspices of the Open Meetings Law. The injured party is the public, and the plaintiff doesn't have to "prove special damage different from that suffered by the public at large. It is not a defense to such an action that there is an adequate remedy at law." § 143‑318.16

See,
§ 143‑318.9. Public policy.
Whereas the public bodies that administer the legislative, policy‑making, quasi‑judicial, administrative, and advisory functions of North Carolina and its political subdivisions exist solely to conduct the people's business, it is the public policy of North Carolina that the hearings, deliberations, and actions of these bodies be conducted openly. (1979, c. 655, s. 1.)

And
§ 143‑318.10
(b) "public body" means any elected or appointed authority, board, commission, committee, council, or other body of the State, or of one or more counties, cities . . .

Although I expressed reservations, it does seem that the plan Gregg brought forward does address all the Open Meetings issues. But what do I know about it? I didn't see Ralph's memo to the committee, but should there in fact be litigation and should the Tech Committee prevail, the plaintiff is running the risk of paying the attorney fees for the town. When will the Tech Committee decide if they're going to start the experiment?

What Tech Board Mark? I imagine that if we do approve our open electronic communications process folks will resign under threat of litigation - at least I assume that's the attempt here....

It'd be nice if we could get some "can do" management at the top that spent some time figuring out how to make a process like this work instead of coming before our Board last year blasting us with his blather and then, this year, following up with this crud. Not at all effective leadership. Time for some forward thinking.

BTW, you should get a copy of the letter, it was addressed to Council and the Tech Board.

Mark,

I don't like the details of the electronics meeting proposal, but I stand by its intent which is to create opportunity for communication. As I understand the intent of the Open Meetings law it is to accomplish just that--provide an opportunity for citizens to observe, if not participate, in governance. And yet here we have town staff trying to limit participation in the name of the law. I am not a lawyer but it seems to me that we have a legal interpretation problem. Is it more important to enforce absolute compliance with the technicalities of a law or should effort be made to follow the spirit of the law? And when the two are at odds, how should the conflict be resolved? (I've been listening to the Alito hearings so pardon me if I sound like one of the Senate questioners.) On this issue, the staff is being overly conservative IMHO.

Which scenario sounds more plausible?

1. The Town Attorney is concerned that the Tech Board (and by extension the Town) may be about to break the law.

or

2. The Town Attorney has some hidden agenda whereby he hopes to manipulate how the Tech Board meets.

I'm not suggesting that staff is trying to manipulate the committee. I am, however, suggesting that change requires a commitment to problem solving and negotiation.

Mark, I'm afraid you're jumping in on the tail end of the story. I'll be happy to update you on other motivations offline.

Dead on Ruby - we're stuck in amber.