Back when I was a student, one of my computer programming professors told the class that “computers will eliminate paperwork and make our lives easier.”

Well, I don’t know if all that’s true (my apologies for misusing the lyrics from Sonny and Cher’s “I Got You, Babe”), but local government agencies often issue electronic devices such as laptop computers, tablet computers, and smartphones (which are really just wee computers that people also use to talk to each other) to members of their governing body.

These devices are incredibly useful — they allow meeting agenda packets to be provided digitally instead of (or in addition to) paper copies. They can help with accessibility of information by allowing the user to “blow up” slideshows and graphics, making them easier to read. When connected to the Internet, these devices also allow members of the governing body (members) to look up laws and regulations, review minutes from previous meetings, and find other online information.

But, as with all tools, there is the possibility members might misuse electronic devices, especially during meetings of the governing body. Members could be focusing on non-work-related content, like sports updates or online shopping, and breaking news flashes can be very distracting (and tempting).

If a member uses social media during a meeting of the governing body, they could be posting about the meeting or discussing the meeting in real-time with people outside the event, both of which distract the member from what is actually happening in the meeting. (I defer the “multitasking” conversation to a different blog because I cannot do more than one thing at a time.)

In my personal nightmare, members could be using such tools to message other members of the governing body, thus raising issues related to the Open Public Meetings Act (OPMA).

A Look at the Issues

This blog updates a topic that retired MRSC Consultant Jim Doherty wrote about in 2017 by first asking ‘what’s the problem?’ when members use such tools during meetings.

For one thing, use of electronic devices during a meeting of the governing body could be considered just plain rude. If your agency has opened the meeting up for public comment and members are staring at their devices, it could give the impression that they are not paying attention to the speakers.

The same is true if members do this while other members or agency staff are speaking. Yes, it is possible that these devices can be used to take notes or research the issues being discussed, but members should be aware of not only whether they are truly ignoring folks but also when they are giving the impression of doing that.

While I don’t recommend interrupting speakers, especially during public comment, but if you spend a lot of time with your nose in a screen during a meeting, consider raising a point of order or just mentioning what you were doing during discussion on an item. For example, you could say something like:

I appreciate the comments of [speaker]. While it may have looked like I was ignoring them, I was [looking at a map of the area/checking committee minutes, etc.] to refresh my memory.

Public Records

 All writings relating to the conduct of government created, used, or retained by the agency are public records regardless of:

• their format (paper or digital), or
• their location (whether they are on an agency-owned or a personal device).

If a member is sending messages, either to someone outside the agency or to another member regarding agency business, those messages may be public records subject to disclosure. Of course this includes any personal messages sent on agency devices during a public meeting.

While purely personal messages are not public records, if they are being created or sent on an agency device the agency’s public records officer may have to review them at a future date to see if they are responsive to a public records request. Even if the public never sees a personal message that was culled as part of a public records request, some staff member (or maybe more than one) will have to review it. The sender and recipient don’t want that, and I can tell you after working with records staff for many years, they don’t want to see personal messages either.

Violations of the OPMA

If fewer than a quorum of the governing body exchange electronic messages (or circulate physical notes) among themselves regarding agency business during a meeting, those members violate the intent of the OPMA as set out in RCW 42.30.010 that the agency’s “actions be taken openly and that their deliberations be conducted openly.”

If a quorum of the body is discussing matters over chat or email during a meeting, they are violating RCW 42.30.030(1)’s requirement that:

All meetings of the governing body of a public agency shall be open and public and all persons shall be permitted to attend any meeting of the governing body of a public agency, except as otherwise provided in this chapter.

Further, if a quorum of the body reaches collective intent to act by using these messages, they are violating RCW 42.30.060(2)’s prohibition on secret voting.

Additionally, if someone on the legislative body is communicating with people not in the room regarding an issue under discussion during a meeting, they may be violating local policies on public comment by allowing the “comment” outside the designated time of the meeting. This is true especially if the member relays that communication to the rest of the governing members during the meeting.

What Can an Agency Do to Avoid Problems?

In short, the agency should adopt a policy regarding use of electronic devices during public meetings and let all members of the governing body and the public know the rules. Here are a couple of examples of policies adopted by local agencies.

The Spokane Valley Governance Manual includes the following:

Councilmembers shall avoid accessing any electronic message during Council meetings. Accessing such communication could be construed as receiving public comment without the benefit of having the citizen in person to address their concerns to the entire Council at once (see page 16 of the manual).

This language is repeated on page 18, with an added admonition that:

Councilmembers shall avoid browsing the Internet during Council meetings in order that Council’s full attention can be given to the topic at hand.

The Clark County Public Transit Benefit Area Authority (C-TRAN) Board of Directors Conduct Policy includes the following:

Board Members shall not send or receive electronic communications concerning any matter pending before Board during a Board Meeting.

Board Members shall not use electronic communication devices to review or access information regarding matters not in consideration before Board during a Board Meeting.

To ensure focus on the discussions during meetings, Board Members should only use the internet during meetings to access Board agenda packet information, board resource documents, including but not limited to Board Policies, C-TRAN Bylaws, Robert’s Rules of Order, or other research relevant to the discussion.

In deference to the Board meeting at hand, Board Members should make every effort to refrain from sending or receiving electronic communication of a personal nature during Board Meetings, though it may sometimes be necessary to send or receive very urgent/emergency family or business communications during meetings.

Conclusion

Whether your agency should have a policy regarding use of electronic devices during meetings is a question for your governing body to consider in consultation with your attorney and your risk pool or insurance carrier. However, if your agency doesn’t have a policy, it can be hard for the presiding officer or the rest of the governing body to address concerns about the use of such devices, and the public might not understand when the council chooses to discipline one of its members for using a device during a public meeting.