Not much, when you think about it. Ever heard someone say, this may not work, meaning maybe it will, maybe it won’t. Same as Council emails may violate FOI laws, meaning maybe they do, maybe they don’t. A lot of other things have to come into play.
But it’s election time, and depending on who you support and who you don’t, maybe you use the term “may” instead of “may not”. COUNCIL EMAILS MAY NOT VIOLATE FOI LAWS, but who would read that?
What does the law say, and what is the “spirit” of the law? The law doesn’t say elected officials (school board, county, municipal council members, state house) can’t communicate with each other, face to face, email, or phone. It just says a quorum can’t get together and discuss town business and make decisions unless at an open public meeting. In Irmo three council members make a quorum. So three members can’t get together in person or conference call and discuss town business. What is town business? That has also been debated. So has discussing, decision making about attending a funeral, political event, time of meeting, what to put on an agenda. What is council business and what is town business? These have never actually been decided by a court. What about group emails sent to all council members by another council member or maybe a chief of police, town administrator, another individual, resident with an issue or concern, a higher office elected official, business owner, invitation to a grand opening, a political event, a chamber event, etc. Is that town business, or is that council business? If the group email goes to three or more, does that constitute a quorum? Maybe, maybe not. Depends upon when each member received the email, and who can decide that? Some say look at their responses, if three or more responded within a relatively short period of time, one could conclude that they received it relatively at the same time. But so far that hasn’t been decided by our courts and doubt very seriously that would be a winnable argument. So this falls into that “large gray area” as to what may or may not violate FOI laws. As we have always heard, if it looks wrong, smells wrong, then don’t do it. But that isn’t always reasonable.
So what about the “spirit” of the law? The spirit of the law is to eliminate non-public “secret” meetings where decisions are being made, not stopping communicating or communication between elected officials. If you think what you are doing is making decisions secretly as a quorum, don’t do it.
A council member can call another member or talk face to face and discuss town business and make decisions and be within the law. Then both can call other council members and do the same thing. Since only two were talking and not three, then no quorum was present.
So what is best? Three phone calls between no more than two members at a time or one group email, with multiple responses, yet no decision making and no voting, and all emails are FOIable? This debate has been had for years and will continue. As long as decisions have to be made, and more than one have to make them, there will be communications, discussions, to influence each of those decision makers to support or oppose whatever the issue is. Whether it be husband and wife, employers, elected officials, church board members, that is the process of decision making. And if you are elected, it is the political process of decision making, that is politics, attempting to influence others to oppose what you oppose and support what you support.
When council comes together at a public meeting, we should be prepared and ready to vote, with or without any debate. If you are not prepared to vote, then you are not prepared. The debate time is there for each member to try to attempt to influence other members to oppose or support the motion. In fact RRO states that before one speaks to a matter they are to inform others that they are speaking in favor or against.
Ipads, smartphones, emails have become more prevalent, I have never seen emails that have violated FOI laws or the spirit of the law, either because not all members respond nor respond simultaneously and because voting or decision making have never happened. And as long as I have served and continue to serve, I will always make sure any emails I am included in never cross that line no matter how gray the line gets.