Local boards adopt protocols on use of electronic devices

Lodi City Council members Susan Hitchcock, left, and Phil Katzakian look over their laptops before beginning a City Council meeting recently. (Whitney Ramirez/News-Sentinel)

Local boards adopt protocols on use of electronic devices

By Kendyce Manguchei
News-Sentinel Staff Writer

Saturday, January 27, 2007 8:11 AM PST

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At the start of a recent meeting of the Galt Joint Union High board of trustees, Sue Roberts asked Art Oelsner to turn off his BlackBerry.

Oelsner, however, didn't want to turn the device off and he didn't have to.

The board has no policy about the use of BlackBerries or cell phones during meetings, he said.

After several requests and Roberts' proposal to go into closed session to discuss it, Oelsner, finally settled it. He turned off his BlackBerry.

"I will have both a cell phone and computer on the table at the next meeting," Oelsner told the News-Sentinel last week, via e-mail, from his BlackBerry.

While cell phones and BlackBerries can interrupt meetings with annoying ring tones, there is a growing concern that the devices' discrete messaging functions can be used by officials to circumvent the state's open-meeting laws. A BlackBerry is a handheld wireless device that can, among other uses, make telephone calls, send e-mails and search the Internet.

While no one accused anyone at the Galt meeting of any inappropriate use of technology, the exchange between Oelsner and Roberts illustrates the issue.

"The possibility exists that messaging could take place with computers, cell phones, or even pen and paper," Oelsner said. "'Technology' is not the issue, instead it is really about 'trust.' Do we as board members trust each other not to violate the law?"

School district officials plan to discuss a draft of a brand-new policy when trustees next meet on Feb. 13.

Galt's board is not alone in navigating the appropriateness of high-tech devices and their purpose in public meetings.

"There is going to be propensity for abuse or misuse, whether they intended to or not," said Debbie Olson, the Central Valley representative of the League of California Cities.

Text-messaging can be used for legitimate and useful reasons, such as a pregnant wife sending a message to her councilman husband her water just broke.

Just as easily, and without anyone guessing otherwise, three of the five council members could pull out their cell phones under the dais and decide to approve a controversial new ordinance without any public debate.

Some online resources

While technology has rasied some concerns with public meetings, it has also broadened the access for residents seeking information about government:

http://www.granicus.com/clients — Granicus, Inc. live and on-demand video and audio from U.S. cities

http://www.lodi.gov.broadcasts — Lodi City Council meeting videos http://www.ci.galt.ca.us — Click on "Agendas and Minutes" http://www.elkgrovecity.org — Videos, click on 'City Council' http://www.stockton.gov/citycouncil — City of Stockton audio/video archives.

— News-Sentinel staff

It's no different than those same council members plotting their votes over coffee before a public hearing. Both are forbidden by California's open-meeting law, the Brown Act.

No one has alleged that local officials are engaging in such activities, and it isn't clear if any such offenses have occurred in the state.

Local elected officials and staff agreed that a request at meetings to turn off cell phones is first an exercise in common courtesy to prevent distractions. Distraction or not, turning off electronic devices can also prevent possible violations of the Brown Act, legal experts said.

In a 2001 legal opinion, California Attorney General Bill Lockyer said that "a majority of board members may not e-mail each other to develop a collective concurrence as to action to be taken by the board ..." even if the e-mails are sent to staff and are reported on at the next public meeting.

The state's Fair Political Practices Commission doesn't lodge complaints about the use of technology or potentially improper communications that might be Brown Act violations. The District Attorney's office would, though staff in San Joaquin County said they haven't had to enforce it.

Jim Ewert, an attorney who specializes in open-meeting laws and is counsel for the California Newspaper Publishers Association, said it's not illegal for elected officials to use cell phones or BlackBerries during meetings.

"It's not prohibited, but that doesn't make it a good idea," he said.

Ewert said some enlightened city councils have taken heed of the Attorney General's admonition, to prevent communication that is "one of a series that could lead to a collective concurrence of the body."

In 2003, the city of Lodi provided each council member with a laptop, and prohibited them from accessing the Internet and e-mail during public meetings. Council members don't have e-mail programs on their computers.

In 2006, the guideline was adopted as protocol for the council, but not other boards.

City Attorney Stephen Schwabauer said that while the term "e-mail" in the city's protocol manual doesn't specifically include other "e-mail style communications" like text messaging, that was the intent.

Lodi City Attorney Stephen Schwabauer looks over his laptop before a City Council meeting. (Whitney Ramirez/News-Sentinel)

Schwabauer said he sometimes uses his BlackBerry during open session, if he's not actively offering his opinion on legal issues.

"The reason I have a BlackBerry is because it allows me to multitask and I can do something else, be productive with my time," Schwabauer said "I think the public expects their elected representatives are paying attention."

Council member Susan Hitchcock said she couldn't remember any council member using a phone or other device during meetings.

"I think it would be an interruption of the process," she said.

Hitchcock said the worst offense is "the council member who forgets to turn it off, and they'd get embarrassed if it rings. Not that they'd ever consider answering it."

Mayor Bob Johnson considers any communication about items not on the agenda as rude and not in the best spirit of being an elected official.

"If we can't say it publicly in front of God and everybody else then we shouldn't be saying it. As a council we should be priding ourselves on as much transparency as we can get" Johnson said. "Everything that we have going on at a public meeting should be open."

Lodi Unified School District's board of trustees president, Ken Davis, said he asks trustees to turn off their phones or pagers, but couldn't recall the use of such devices being brought up as a concern.

Contact reporter Kendyce Manguchei at kendycem@lodinews.com.

First published: Saturday, January 27, 2007

Reader Feedback

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