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PLANNING SCHOOLS ENVIRONMENT EROSION
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OPEN MEETINGS ADVISORY OPINION NO. 2006-09
Issued On September 7, 2006 By The
WEST VIRGINIA ETHICS COMMISSION
COMMITTEE ON OPEN GOVERNMENTAL MEETINGS
OPINION SOUGHT
The Jefferson County Planning Commission seeks guidance on the use of
electronic mail.
FACTS RELIED UPON BY THE COMMITTEE
The Jefferson County Planning Commission wants to determine if individual
Commissioners may send proposals to staff via electronic mail to be forwarded
to all Commission Members in advance of a meeting. Examples of draft documents
that would be included in this process are by-laws, budgets, policies,
correspondence, and corrections to minutes. Commissioners would not respond to
these documents until a properly noticed meeting and copies of all such
material would be on file and available for public inspection.
Prior to implementing this policy, the Planning Commission proposes to
include the following language in its By-laws and Procedures:
Members may send information to the office, for immediate forwarding to
all Planning Commissioners, electronically or otherwise, between meetings, but
may not reply about anything that could result in an official action. Such materials will be filed and made available to the public
immediately.
CODE PROVISIONS RELIED UPON BY THE COMMITTEE
W, Va. Code § 6-9A-1, Declaration of Legislative Policy, provides as
follows:
The Legislature hereby finds and declares that
public agencies in this state exist for the singular purpose ofrepresenting
citizens of this state in governmental affairs, and it is, therefore, in the
best interests of the people of this state for the proceedings of public
agencies be conducted openly, with only a few clearly defined exceptions. The
Legislature hereby further finds and declares that the citizens of this state
do not yield their sovereignty to the governmental agencies that serve them.
The people in delegating authority do not give their public servants the right
to decide what is good for them to know and what is not good for them to know.
The people insist on remaining informed so that they may retain control over
the instruments of government created by them.
Open government allows the public to educate itself
about government decisionmaking through individuals’ attendance and
participation at government functions, distribution of government information
by the press or interested citizens, and public debate on issues deliberated
within the government.
Public access to information promotes attendance at
meetings, improves planning of meetings, and encourages more thorough
preparation and complete discussion of issues by participating officials. The
government also benefits from openness because better preparation and public
input allow government agencies to gauge public preferences accurately and
thereby tailor their actions and policies more closely to public needs. Public
confidence and understanding ease potential resistance to government programs.
Accordingly, the benefits of openness inure to both
the public affected by governmental decisionmaking and the decision makers
themselves. The Legislature finds, however, that openness, public access to information
and a desire to improve the operation of government do not require nor permit
every meeting to be a public meeting. The Legislature finds that it would be
unrealistic, if not impossible, to carry on the business of government should
every meeting, every contact and every discussion seeking advice and counsel in
order to acquire the necessary information, data or intelligence needed by a
governing body were required to be a public meeting. It is the intent of the
Legislature to balance these interests in order to allow government to function
and the public to participate in a meaningful manner in public agency
decisionmaking.
W. Va. Code § 6-9A-2(4), Definitions, provides, in pertinent part:
“Meeting” means the convening of a governing body of
a public agency for which a quorum is required in order to make a decision or
to deliberate toward a decision on any matter which results in an official
action. Meetings may be held by telephone conference or other electronic means.
The term meeting does not include:
* * *
(D) General discussions among members of a governing
body on issues of interest to the public when held in a planned or unplanned
social, educational, training, informal, ceremonial or similar setting, without
intent to conduct public business even if a quorum is present and public
business is discussed but there is no intention for the discussion to lead to
an official action; or
(E) Discussions by members of a governing body on
logistical and procedural methods to schedule and regulate a meeting.
Finally, W. Va. Code § 6-9A-3 provides that, except for certain
specific exceptions, “all meetings of any governing body shall be open to the
public.”
ADVISORY OPINION
This State’s Open Meetings Act does not directly address electronic
mail communications. In interpreting and applying the Act, this Committee will
follow the express intent of the Legislature which, with limited exceptions,
requires governing bodies of public agencies to accomplish the collective process
of decision making on matters within their official purview during a public
meeting.
Generally, written communications, including electronic mail or
“E-mail,” should not be used to avoid public discussions that would ordinarily
take place in the context of an open public meeting. Therefore, an exchange of
E-mail communications among a quorum of a governing body which involves
deliberating toward a decision on a matter requiring official action is not
permitted by the Act.
Nonetheless, this Committee recognizes that not all communication
between or among the members of a governing body of a public agency will take
place in the course of a scheduled meeting that is open to the public and the
media. In an earlier, non-precedential opinion, Open Meetings Advisory Opinion
2000-07, this Committee authorized members of a City Planmng Commission to
receive copies of proposed plans in advance of a scheduled meeting, so each
member would have an opportunity to review the plans in preparation for the
meeting
In issuing precedential opinions in accordance with authority provided
in W. Va. Code § 6-9A- 11, as amended by the Legislature in 2006, this
Committee will follow its rulings in earlier, nonprecedential Open Meetings
Advisory Opinions, unless we conclude that a particular opinion was clearly
wrong. The guidance in Open Meetings Advisory Opinion 2000-07, which generally
allows Planning Commission Members to individually receive copies of proposed
plans in advance of a meeting, remains valid. Further, if proposed plans can be
converted to electronic mail, they maybe provided to the members in advance of
the meeting, in substantially the same manner as various draft documents
proposed here by the Jefferson County Planning Commission.
This Committee previously recognized in another non-precedential
opinion, Open Meetings Advisory Opinion, 2005-12, that “a series of E-mail
exchanges could virtually eliminate any need for discussion at an open public
meeting.” Accordingly, E-mail communications regarding matters requiring official
action should be limited to the staff or individual members sending out drafts
of matters such as by-laws, budgets, policies, correspondence, and meeting
minutes, so the voting members of the governing body will have an opportunity
to review these documents in advance of the meeting.
It is the opinion of this Committee that circulating “draft corrections
to minutes” would exceed the limitations established in this Advisory Opinion.
A “draft correction” necessarily implies that an original draft of a document
has already been received. Consequently, a “draft correction” represents the
next step in a dialogue regarding what the document should ultimately say. Of
course, an individual Commissioner may submit suggested or proposed corrections
to the meeting minutes to staff via E-mail. However, as we read the language in
the Planning Commission’s proposed procedure, to avoid a dialogue on the merits
of a matter requiring official action, the staff should not forward these
suggested or proposed corrections of the draft minutes to the other
Commissioners via E-mail. (Approval of meeting minutes is a matter that
requires official action by a governing body.)
This Committee further notes that § 6-9A-2(4)(E) of the Act allows a
quorum of a governing body to discuss purely
logistical matters, such as the time and place for holding a meeting, who
should be invited to the meeting to make a presentation, what data or
documentation needs to be available at the meeting, and what matters should be
included on the meeting agenda. Therefore, the Planning Commission members and staff may use electronic mail to the maximum
extent practicable to communicate regarding those logistical matters
which are exempt from the open meetings requirements in the Act.
This advisory opinion is limited to questions arising under the Open
Governmental Proceedings Act, W. Va. Code §~ 6-9A-l, et seq., and does not
purport to interpret other laws or rules. Pursuant to W. Va. Code § 6-9A- 11, a
governing body or member thereof that acts in good faith reliance on this
advisory opinion has an absolute defense to any civil suit or criminal
prosecution for any action taken based upon this opinion, so long as the
underlying facts and circumstances surrounding the action are the same or substantially
the same as those being addressed in this opinion, unless and until it is
amended or revoked.
James E. Shepherd III
Chairman