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Gering's city e-mail policy 'clear as mud'
January 13, 2011 Jerry Purvis   
What started as a discussion over Gering’s e-mail policy for city officials turned into something that council member Larry Gibbs called “clear as mud.”

Gering City Council member Joyce Hillman-Kortum placed the item on the agenda, asking whether council members might be circumventing the state’s open meetings statute when they e-mail each other.

“Today’s technology has changed some things about the open meetings law, especially what constitutes a quorum,” Hillman-Kortum told the council. “When council members e-mail each other and ask for feedback, it might be construed as a violation, even if there’s not intent.”

The 1983 state statute regarding open meetings was updated in 2004. The updated language prohibits “the use of telephone conference calls, e-mails, faxes or other electronic communications to circumvent any of the public government purposes of the Open Meetings Act.”

When the statute was updated in 2004, the Attorney General indicated that intent was necessary when it came to violating the act. The ruling stated that “members of a public body can communicate with other members of that body by electronic means, even if that communication is directed to a quorum of the body, so long as there is no course of communication which becomes sufficiently involved so as to evidence an intent or purpose to circumvent the Open Meetings Act.”

According to the city’s electronic communications policy, “e-mails between members of a public body that do not equal a quorum are acceptable.”

The potential violation comes into play when the city’s various committees, none of which contain a quorum, report their minutes to other council members. A committee can only recommend an action to the full council, which has the final word as to whether a recommendation is accepted.

“We have to be careful when we get questions about our committee meetings,” said council member Manuel Escamilla. “We can’t offer an opinion or continue the discussion without violating the law.”

Gering City Attorney Jim Ellison pointed out another section of the statute. “Having a discussion is one thing, but even getting the discussion started can become a problem,” he said. “If you put information out there to brief the rest of the council, it could still be a public open meeting even if you’re not getting a response.”
Ellison said the city could probably send out the information piecemeal, but not as a blanket e-mail to all council members.

However, it would be tricky to define what constitutes a “briefing” that wouldn’t violate the law.

“I think it’s risky,” Ellison said. “I respect the Attorney General’s opinion, but it’s just that – an opinion. I’m more concerned about what a judge is going to rule.”

Council member Gibbs asked Ellison whether a committee chairman could e-mail other council members about the meeting. Ellison said that would be a potential violation.
“There’s a difference between information and advocacy,” Gibbs said. “If you’re reporting what the committee did without saying this is what they recommend, that’s not advocacy.”

Council member Jill McFarland recommended the city do more research as to the policy of other cities and contact the Nebraska League of Municipalities for clarification. “If you want to change the city’s policy, that’s one thing,” Hillman-Kortum said. “But until we get the research back, I’d suggest we not do it because we might be putting ourselves at risk.”

After the meeting, Gibbs said it’s always been the understanding council members could give a one-way report to the rest of the board.
“It’s confusing, but the council needs to be able to communicate to get anything done,” he said.

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