Md. panel says public officials’ use of emails may constitute a meeting

Public officials will have to reconsider how they use electronic communications in the wake of a new opinion from the state’s Open Meeting Compliance Board.

For more than 20 years electronic communications, such as emails and text messages, have been considered public documents but not subject to open meetings laws in Maryland, despite repeated warnings that such views could one day be overtaken by how the technology is used. The compliance board’s advisory opinion on a recent case suggests that time has arrived.

The opinion of the board in a case involving the Talbot County Council sets a precedent regarding the use of electronic communications.

A complaint was lodged earlier this year against the council after the five-member panel had exchanged emails and texts over a two-day period discussing and ultimately deciding to take a position on legislation pending before the General Assembly. The exchange and the decision to sign a letter taking a position on the legislation became public at a subsequent meeting when the council members publicly discussed other legislation they might wish to weigh in on.

“We conclude that the Council violated the Act when it did not provide the public with an opportunity to observe its deliberations on its position on legislation pending in the General Assembly,” the three-member compliance board wrote in its opinion. “We have explained that when the sequence of electronic communications is such that a collective deliberation among a quorum has occurred, with the opportunity for the quorum to interact on public business subject to the Act, actual interaction, and awareness that a quorum is at hand for a specific period of time, we will deem the public body to have held a meeting subject to the Act. And, once again, we strongly discourage the exchange of electronic communications on public business, no matter how carefully structured to avoid the presence of a quorum, as violative of the goals that the Act was intended to achieve.”

“This is a pretty big deal,” said Michael Sanderson, executive director of the Maryland Association of Counties.

The Talbot case is another in a series of decisions where technology has rubbed up against laws written before the advent of the internet age.

“I think this was a case that the (compliance) board may have been waiting for,” said Sanderson.

Corey Pack, president of the Talbot County Council, did not respond to a request for comment.

An attorney representing the county before the compliance board said the council members — the council function as both legislative and executive branches at various times — were acting in an administrative capacity. Additionally, some members submitted affidavits saying they had neither intended nor been advised on how to evade the open meetings laws.

Ultimately, the compliance board disagreed and noted that it has warned other officials in previous cases to be wary of the use of electronic communications.

“Here, the totality of the circumstances leads us to conclude that the council’s deliberations were more akin to conversations among a group that effectively convened to decide on the council’s positions than to the sporadic exchange of written correspondence,” the board wrote in its opinion.

The opinion this month breaks with others by the compliance board and with a 1996 opinion from the Office of the Attorney General regarding electronic communications.

In May 1996, then-Attorney General Joseph Curran concluded that emails, while being subject to the Public Information Act, didn’t constitute a public meeting subject to the Open Meetings Act.

Curran compared emails to “an exchange of paper.”

But, in the same opinion, he cautioned that this could one day change.

“To be sure, e-mail could conceivably be the medium of exchange when a quorum of a public body has convened,” Curran wrote. “If the members of a public body are able to use e-mail for ‘real-time’ simultaneous exchange, the result would be different. Then the analogy would be to a telephone conference call, the hallmark of which is the capacity for immediate group interaction and which constitute a ‘meeting’ under the Open Meetings Act.”

Similarly, the compliance board has cautioned public bodies on the use of electronic communications. In a 2015 case, the board stopped short of saying a town council had violated the act when it used email to discuss an issue but called it “a close question.”

The board in 2015 cautioned “members of public bodies [to] simply forebear from conducting business electronically because of the ease with which a conversation between two members (when a quorum is four) may be transmitted to the others and thereby effect an impermissible ‘crystallization of secret decisions to a point just short of ceremonial acceptance.’”

The exact effect of the opinion this month is debatable.

Open government advocates have long criticized state open meetings laws as lacking teeth and being merely embarrassing to public bodies found in violation — the Talbot council members will have to summarize the adverse opinion in an upcoming open forum.

Sanderson said the newness of the ruling raises questions for public bodies that want to stay on the right side of the law.

“It’s not a big deal in the sense that someone is going to jail, but it is a big deal to have a ruling come down that says you did something wrong,” said Sanderson.