Imagine this: You’re sitting home one evening thinking about the matters your Governing Board has to address and you have a thought you don’t want to postpone sharing. So, you open your email and draft an email to another Board member and hit “Send.” This seems harmless, right? WRONG! This seemingly innocent message could be a violation of the Open Meeting Law.
A “meeting” occurs any time a quorum discusses business matters. A meeting can be held via e-mail, as well as in person. Private conversations that start innocently can easily end up as a train of discussions that ultimately includes a quorum of the Board. This is a direct violation of the Open Meeting Law and could lead to possible violations. You may be asking, “If no one replies to the email, then there is no quorum, so no violation, right?” Wrong. It still may be a violation, despite the lack of response. Discussions and deliberations between less than a majority of the members of the Board may violate the Open Meeting Law because they can be perceived as an attempt to circumvent the purpose of the law.
Not all emails between Board members may be a violation of the law, however. Conducting business, such as scheduling a meeting or checking Board members’ availability through an email is allowed. But any in-depth discussion of a topic that has been, or may come before the Board, may be a violation of the Open Meeting Law. No discussion can occur on previous or possible future issues, unless the discussion occurs in a properly noticed Governing Board meeting
Penalties for a violation of the Open Meeting Law can result in personal liability for individual Board members, not just for the Board itself. The following is a list of some of the possible penalties under the Law:
- The “legal topic” discussed in the email will be rendered null and void as a violation of the Open Meeting Law, unless subsequently ratified.
- A civil penalty of up to $500.00 per violation can be assessed to each violator. This includes the person who violated the law and/or an individual who aided in the violation.
- A court may award reasonable attorney’s fees in an enforcement action brought under the Open Meeting Law. Board members’ attorney’s fees for a violation cannot be paid with public funds and will come from the Board members’ own pockets.
- A Board member may be removed from office for violating the Open Meeting Law.
Even if an email communication does not violate the Open Meeting Law, it could still become problematic and leave the door open for defamation claims, the appearance of impropriety by Board members, or include statements that may constitute “admissions” in future litigation.
In conclusion, you do not want “you’ve got mail” to turn into “you’ve got an Open Meeting Law violation.” E-mail is so prevalent that we often forget the power it can have and the weight a simple message of even a few words can carry. If you have any doubts about whether an email you are drafting may violate the Open Meeting Laws, it’s best to just wait and discuss the issue at the next scheduled and announced meeting. If you have any questions regarding Open Meeting Laws at your District or school, you should consult with an attorney about your particular circumstances.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please feel free to contact Kimberly R. Davis at 480.461.5387, log on to udallshumway.com, or contact an attorney in your area.