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lEl'IIIIEES
MEMORANDUM
Item I.E
DATE:
June 15, 2009
TO:
Mayor and City Council
FROM:
Ron Moorse, City Administrator
SUBJECT:
Council Communications
BACKGROUND
Attached is information from the LMC regarding electronic communication between
Councilmembers for discussion at the work session.
Jun-08-20D9 15:15
From-PETERSON FRAM BERGMAN
6512281753
T-416 P.DDZ/006 F-998
LMC
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League of Minnesota Cities
Insurance Trust
145 Universlt;y Avenue West, St Paul, MN 55:103-2044
(65.1) :281..1200 · (BOO) 925-1122
Fax: (651) 281-1298 · TOO: (651) 281..1290
www..lmnc.org
RISK MANAGEMENT INFORMATION
ELECTRONIC COMIvIUNICATIONS
BETWEEN COUNCIL :MEJvIBERS
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 vi~lating 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 primaty purpose ofth.e 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 councilor COmmittee9 In most cities a quorum is tmee 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 communi~ 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
$300 per occurrence and forfeiture of office for officials who intentionally violate the law three
times. Reasonable costs and attorney fees can also be awarded if the court finds specific intent to
violate the law.
Electronic communications and the Open Meetiug Law
The Minnesota Open Meeting Law bas a number of tricky aspects) not the least of which results
from increasing reliance on e-mail communication between councilor committee members..
Tbh; matert~1 Ii prOYlcl.~ 1$ general information ,qnd Is nCt a Sabstltute for leg,I idvfGI.
Consult 10llf attorney for iJdviCt concerning .paClflC tnaatJons.
Jun~08-20D9 15:16
From-PETERSON FRAM BERGMAN
6512281753
1-416 P.003/D06 F-S98
E..mail makes a serial meeting easier by allowing councilor conunittee 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 Council Member~ along with his or her own comments and interpretations..
Even if the last Council Member to receive the e-mail doesn't reply to either tbe 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-maUing is used to
reach a decision.
Many cities are moving toward electronic meeting packets for councils and committees. often
sent via e~mail attachments, This sort of one-way distribution ofinfonnatio~ 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 e-mail to respond to the content oftbe meeting materials, or otherwise
begin a discussion bye-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 e-mail, but
instead treat e-mail only as a way to receive information from the city clerk or adm;nistrator. If a
Council Member has infonnation 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 (bye-mail or in
paper form).
Using the clerk as the olearinghouse for information distribution is probably a safer alternative
than baving 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 COlll1cil Members are engaged in direct e-mail discussions.it. s probably best to limit it to only
two members. A ~"no forwarding and no copying't' rule might be a good way to make sure the
Minnesota Open Meeting Law isn't unintentionally violated through e--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 ()fyour 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.
T '
Yhhi m Clt~tlall~ prDvlded as general intorm.tlon a nd is not a substitute for legal advIce.
c:ons u It yau r aU 0 tney for a dvl, Ii:': cones," i n g spec:Jfl c 'S It"~ t Ions.
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Jun~08-20D9 15:16
From-PETERSON FRAM BERGMAN
6512281T53
T-416 P.D04/005 F-99S
Again, the city might consider a "no replytt sort of rule when it comes to these resources, or
perhaps have Coun~il Members send ideas for postings or responses to the city clerk or
administrator to manage. Reqiember, too, that official city committees are subject to the same
open meeting. requirements and should be similarly educated about correct e-mail use..
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 e-mail correspondence to anyone who wants to see it.. While this doesn't negate the
possible violatio~ 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 doesntt 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 nonnal operating procedures, consult with the.city attorney and
detemUne the best course of action.
Guidelines for
Electronic Communications between Council Members
in the City of
These guidelines apply to all members of the city council and all mem.bers of council and city
committees, conunissions, sub..committees, etc. in the City of
F or purposes of these guidelines, reference to Council Members includes members of all other
city conunittees and groups subject to the Open Meeting Law. Reference to the council shall
include all such groups and meetings..
For purposes of these guidelines, "electronic means" means email, instant messaging, chatrooms,
and related electronic conversation.
For purposes of these guidelines, "city clerk" means the city clerk, manager, administrator or his
I her designee.
This materialls provld(td aa generalldformatluIl1UI d Is not a iPbltltul. rOt loga) advll;o,
CDnsult your attorney for adylc~ concernlrlg $peclf~c $ltuatlans.
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Jun-08-2009 15:17
From-PETERSON FRAU BERGMAN
6512281753
T-416 P.005/006 F-998
These guidelines apply regardless of whether the Council Member is using a city-provided email
address and account, his/her personal email address or ac:coWlt, or one provided by hislher
employer~
Meeting materials
Electronic conununication of meeting materials should generally be conducted in a one-way
communication from the city clerk to the council..
. Council Members may receive agenda materials~ background information, and other
meeting materials via email attachment or other electronic means-(such as file sharing)
from the city clerk..
. If a Council Member has questions or comments about materials received, slhe should
inquire via electronic means directly back to the city clerk. A Council Member should
not copy other committee members on hislher inquiry..
. If the clarification is one of value to other Council Members, the city clerk may seud
follow-up materials or information to the council..
Materials relating to agenda items of a meeting must also be made available to the public at the
meeting.
Communication during council meetin~s
. Council Members should not communicate with one aI1c)ther via electronic means dtuing
a public meeting.
. Council Members should not conununicate with any member of city staffvia electronic
means during a public m.eeting.
. Council Members are encouraged not to communicate with the public via electronic
means during a public meeting.
Communication outside of council meetinas
. Council Members should generally act with caution when using electronic means to
communicate with one another, being mindful of the Minnesota Open Meeting Law.
. If a Council Member wishes to share infonnation with other members) slhe should do so
through the city clerk:. The Council Member may request the city clerk distribute
materials to others. The communication should not invite response to or discussion
between any Council Members~ including replies to the person making the distribution
reauest. This should be considered a method for providing one--way infonnation to other
Th'ts mattrl~' Is provided tli general Inform it1ton and 15 n(tt a substitute for leea. advico.
Consult your attOl'ney for advlee conceralng $pBGiflC ~JtU~tlorui.
.4-
Jun-08-2009 10:17
From-PETERSON FRAM BERGMAN
6512281703
T-416 P.oos/ona F-999
ntembers of the counciL Again remember that materials relating to agenda items for city
business must be provided to the public at the meeting.
. If a Council Member wishes to address only one other member through electronic means
on any topic related to city business~ s/he can do so directly, but should be mindful of the
.following:
o One-to-one communication is ideal.
o The recipient of an electronic message or inquiry should reply only to the sender,
should not copy others on the reply and should not foxward the original email to
other Council Membets~
o The sender of an electronic message should not forward or copy the recipient! s
reply to any other Council Member.
~ If a COWlcil Member receives an electronic communication from any source related to
city business and distributed to multiple COWlcil Members (i.e. an email sent to the entire
council from a member of the public; or an email sent to three Council Members from a
local business)~ slhe should reply only to the sender" The reply should not be copied to
all on the original distribution or forwarded to any other Council Member.
. If a COWlcil Member receives listserv distributions, electronic newsletters, or participates
in electronic di~cussion forums where other Council Members are also likely to
participate (such as chat rooms)~ the Council Membet should not reply to any distribution
. or comment so that the reply is copied to the entire distributioD group~ or any part of the
group that might include other Colincil Members.. The Council Member should instead
respond only to the sender of any message or inquiry.
Classification and Retention of electronic communications
. Regardless ofwhetber electronic communication by a Council Member is taking place on
a city-provided computer) home computer or other conlputer system, classification of
information as public, private or other is governed by the Minnesota Government Data
Practices Act (Minn. Stat. Cbapt. 13) and should be treated accordingly,
. Council Members should retain electronic communications in keeping with city polioies
and procedures~ whether such communication takes place on a city-provided computer,
home computer or other computer system~
.
Thill material is prOVld'~ as ,ener~llnfOtmatloR ~nd Jt not II &ub,'ltute for legal i1dviGt~
ConGwlt YOlfr attotney for advice eor-earnlng specifIc altuatlont.
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