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E-mail among council members raises legal questions

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Posted: Friday, September 5, 2003 10:00 pm

Councilman Keith Land receives more than a handful of e-mails each day. Some are from friends and others are from citizens.

Yet others are from fellow City Council members - and those are the ones that are causing concern.

In Lodi and other California cities, questions are being raised about e-mails circulated among council members. The main concerns: Are issues being discussed and decisions made in secret through the use of e-mailed messages?

The concerns are drawing new attention in Lodi because all council members now have laptop computers, making e-mailed communications even easier and perhaps more common.

At Wednesday's City Council meeting, Land asked City Attorney Randy Hays to clarify whether those e-mails were considered public documents. And, if they were, did they fall under the guidelines of the Brown Act, California's open meeting law.

Hays did not have a clear-cut answer and termed the issue a "morass."

It's no wonder. Legal authorities agree there are no straightforward rules on public access to e-mail.

"An attorney general opinion offered last year said that there is certainly the potential for violation of the Brown Act simply by hitting the 'reply all' key," said Sacramento attorney Jim Ewert, counsel for the California Newspaper Publishers Association.

"It is so easy to develop a consensus by doing that, so communication (with council members) via e-mail should be discouraged."

Land's concerns about council members communicating via e-mail has to do with what they're writing, specifically if they're building consensus in private prior to a meeting.

"That would be no different than a face-to-face discussion," Hays said.

Under the Brown Act, elected officials are barred from discussing items in private with a majority of elected officials to a legislative board.

Mayor Susan Hitchcock said if council members are attempting to build consensus via e-mail, it is no different than holding a meeting that has not been properly noticed.

(Under the Brown Act, agendas must be posted 72 hours before regular meetings.)

The act goes one step further in prohibiting a majority of members from developing a collective concurrence on an action or going through a series of telephone conversations because it constitutes a meeting.

Land said recently there has been a heightened concern regarding e-mail discussions surrounding the city's ongoing contamination litigation and recent personnel issues. He declined to provide details.

"Although council members are not asking for a response, they are sharing their opinions and concerns," he said.

"I would rather do the city's business in open session, instead of through e-mail."

Councilman John Beckman said he has not seen anything in council member e-mails that would be questionable.

"Most of the ones I've seen have to do with where council members are going to be at a particular time," he said.

The councilman also doesn't see receiving e-mails from several council members voicing their opinions as building a consensus any more than a newspaper quoting three members in a news article before a meeting.

"If I send an e-mail out to everyone, I'm announcing to everyone my opinion and where I stand, but I don't know if that's a violation," Beckman said.

Ewert says no.

"A consensus requires a mutual agreement, so one declaration is not a violation of the Brown Act. Once a majority start declaring, however, we start moving closer to the edge of that precarious cliff."

Land said the number of e-mails circulating has been growing over the past couple of years, adding that he has not responded to any he's received from fellow council members.

Further, he said he doesn't regularly write e-mails, in general, instead opting to write old-fashioned letters and schedule face-to-face discussions with officials like the city clerk, city attorney and city manager.

Sometimes, however, staff members communicate with council members and carbon copy all five of them, Beckman said.

On Wednesday, Deputy City Manager Janet Keeter said the practice is done for ease only.

Land brought the issue up to Hays on Wednesday, he said, because the City Council is being outfitted with new laptop computers. He is concerned council members will be able to "talk" privately via e-mail during public meetings.

"All this technology we're getting, we need to be sure we're not abusing it," Land said.

City Clerk Susan Blackston, who will oversee the laptops, said council members will be prohibited from sending one another e-mails or using the Internet at meetings. Each computer, however, will be outfitted with a modem and Internet connection is available at each work station.

"To properly conduct a meeting, we cannot be taking e-mails while a meeting is taking place," Blackston said.

"How can the public be sure of what is being communicated unless they are aware of it?

"Anything that council is using to make a decision needs to be heard in public and made part of the meeting packet."

Blackston is working on an internal draft use policy for the new laptops.

The League of California Cities has weighed in on the discussion. Hoping to offer its members some guidance on the issue, the coalition of cities printed an article in its Western City magazine cautioning public agencies about the use of e-mail as communication with elected officials.

"A policy can be a helpful thing," said JoAnne Speers, the league's legal counsel.

In the past, she has made presentations to city attorneys on the Brown Act and laws they should be aware of.

"This is something we have been talking to city officials about over the last few months," she said.

"With e-mail becoming an even more important part of our life, it's important we are aware of the boundaries - as best as we can determine them."

Some cities have adopted e-mail policies to help avoid disputes over whether it is subject to disclosure.

In Palo Alto, for example, the City Council created a new policy, publishing e-mails between council members and city staff about topics on the council meeting agenda. The e-mails, in turn, are included in the agenda packets prepared for council meetings and are available to the public.

But that didn't happen until the city was sued by two newspapers for violating the Brown Act. The Palo Alto Weekly and the San Jose Mercury News contended that the City Council was discussing in e-mail the performance of its city attorney.

Land said if he was asked today by the press or a citizen to surrender the e-mails he stores in his computer, he would do so.

"At what point do they become public record?"

Blackston, who is cognizant of the Brown Act, said she has not seen a definitive answer to that question.

"It's amazing to me that a decision hasn't been made," she said.

"I think we will continue to have an open discussion on what is a public record."

All e-mails considered public documents must be disclosed if requested, Ewert said.

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