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Village Attorney Warns of 'Virtual Council Meetings' Over Internet |
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Written by Jeff Radford
Corrales Comment
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Wednesday, 28 January 2009 |
Councillor Gerard Gagliano has said repeatedly since he won a seat on
the Village Council in a special election last fall that he feels too
restricted by provisions of the state’s Open Meetings Act.
He wants to be able to work by e-mail with other councillors on solutions to Village problems between meetings of the council.
Gagliano suggested at the January 13 meeting that the council might
want to consider an innovative, internet interactive approach to
conducting activities of Village government. He said he would present a
written proposal in the weeks ahead that he thought would comply with
provisions of the Open Meetings Act while engaging in discussions via
the internet.
He had complained of the act’s constraints last month when he and two
other councillors presented a resolution on waste water strategies
which had been developed in out-of-session discussions. He said at the
time he felt it was unfortunate that he could not discuss his ideas
with all members of the council outside of posted council meetings due
to the N.M. Open Meetings Act.
The act, which is also adopted locally by municipalities, prohibits
private meetings of councillors aimed at reaching consensus on
political issues outside of meetings which the public can witness. An
attempt to do so constitutes an illegal “rolling quorum,” according to
the act.
The prohibition would cover, for example, a councillor calling (or
e-mailing) another member of the council trying to get his or her
concurrence on such a public issue.
If the first two councillors agreed, and one of them contacted a third
member of the governing body to report that they were agreed on what to
do and asked whether the third would go along, that would have been an
illegal “rolling quorum” until last fall when the council here was
expanded to six seats.
Even now, if those three councillors then approached a fourth to try to persuade, that would be the prohibited “rolling quorum.”
The public’s business needs to be conducted in public, the rules demand.
But Gagliano suggested to fellow councillors at the January 13 meeting
that there should be some way to interactively use the internet so that
the public’s business could be worked on between regular sessions of
the council. His remarks came as they adopted an annual resolution
establishing the council’s regular meeting schedule and locations at
which notice of such meetings would be posted.
The first sentence of that resolution, adopted each January, reads:
“Whereas Section 10-15-1 NMSA 1978, the Open Meetings Act requires that
all meetings of a quorum of members of a public body held for the
purpose of formulating public policy or for the purpose of taking any
action within its authority, are declared to be public meetings open to
the public at all times, unless excepted from the Open Meetings Act.”
The act requires that the public be given notice of such meetings at
least 10 days in advance (three days in the event that a special
meeting is called) so that members of the public can attend if they
wish.
As the council began discussing adoption of the annual resolution,
Gagliano proposed that ways be found to allow “collaborative” work on
Village business over the internet.
“I’ve discussed with a number of councillors the concept of utilizing
some new technology. One of the frustrations that I’ve experienced
since I’ve been on the council is the inability to be able to clearly
communicate because of the limitations of the Open Meetings
Act,” Gagliano began.
“I’m not suggesting that we find a way around that, but what I’m
suggesting that we do is that we utilize new technology to —not in all
circumstances, but perhaps as a trial basis— to pick some topics for
which we can use some collaborative software that would exist on the
Village’s [computer] servers or hosted elsewhere where all villagers
—realistically all citizens on the planet— would be able to weigh in.
“Perhaps we could offer log-ins so that commentary could be left by
villagers and that we could as a governing body be able to
collaboratively comment on a particular item.
“I was interested in whether there is any interest in doing that at
least on a trial basis to see how well that can work for us,” he
proposed.
Councillor Bonnie Gonzales asked whether it would be like a “Village Council MySpace.”
Gagliano replied, “I guess that’s accurate, but I think more accurate
would be that we would post a URL (internet location) that is more like
a blog where you would have the opportunity to share any thoughts on a
particular topic.
“It would be just like a meeting except that it would take place in
cyberspace over a prolonged period of time,” Gagliano explained.
Mayor Gasteyer quizzed, “Like a chat room?”
Gagliano said yes, something similar to a chat room. “The idea came
about from looking at some of the collaborative software that the
presidential campaigns used, and how effective it was during that
process.”
Gagliano is a software developer whose clients include the federal
government. Before he ran for a seat on the council, he modified a
software application to assist councillors in analyzing costs involved
in sewer alternatives.
With villagers posting comments to a blog when it was convenient, “it
is not a meeting in the conventional sense that we have here tonight,”
he added. “But it is a valid virtual meeting.”
Mayor Gasteyer expressed doubts about the legality of such a virtual
meeting. “I know that the world is changing, but we are sort of
burdened with the old-fashioned requirements of notice 24 hours
before a meeting that will discuss the topics that are noticed, and
those kinds of impediments to do things prior to a meeting.”
Village Attorney John Appel was asked to give his opinion on whether
such a virtual meeting would comply with the Open Meetings Act.
“I have to say based on what I have heard described just now, this
strikes me as being a very clear and absolute violation of the New
Mexico Open Meetings Act,” the attorney advised.
“It would call into question the validity of any action taken by this
council on any topic that had been discussed in this virtual forum or
whatever this is, apparently outside any noticed meeting of this
governing body.”
In other words, if the council later reached a decision on any matter
that had been discussed in such a virtual meeting, it could be
challenged in court as having been decided improperly.
Gagliano said he had expected such an interpretation from the Village
Attorney, so he had spoken to a person knowledgeable about the state
Open Meetings Act. “In anticipation of that,” he replied to Appel, “I
actually had a conversation with Sam Thompson who helped write the Open
Meetings Act [when she worked in the N.M. Attorney General’s Office],
and she assured me that if we were to post the URL of such a cyberspace
entity and keep it posted during the entire time, that we would fall
within the meanings of the Open Meetings Act.”
Appel replied: “That may be Ms Thompson’s opinion. I don’t believe Ms
Thompson is an attorney, and Ms Thompson would not have to defend the
actions of this governing body in court if there were a challenge
brought.”
Thompson, a Corrales resident, has retired from the Attorney General’s
Office. Contacted by Corrales Comment, she said she had spoken to
Gagliano at a social event about his idea.
“I think he and I had a misunderstanding,” Thompson said. “Any kind of
discussion between councillors would have to be done in an open
meeting. I had thought he was talking about a sort of internet posting
of what had taken place at a council meeting as a way for the public to
keep informed about what was being discussed.”
She added: “I would never suggest that councillors could discuss public business outside of an open public meeting.”
When she spoke with Gagliano at a social gathering, “it was kind of
hard to hear. I must have just misunderstood what he was
contemplating,” she said.
At the January 13 council meeting, Councillor Pat Clauser spoke up to
say such a virtual meeting was not likely to be open to everyone. “I
guess my concern is that although there are many people here who are
very computer savvy, there is a significant portion of others in the
village who do not use the computer. When they come to a meeting, they
should be able to understand everything that has been going on” rather
then be perplexed because they were unaware of discussions or
developments that had taken place outside of public meetings,” Clauser
contended.
“That’s a legitimate point,” Gagliano conceded. “What I think we could
do is have a computer terminal at the library that had a ‘bookmark’ or
a label right on it saying ‘here is the URL to go to.’
“And if that wasn’t sufficient, perhaps you could have a [public use] terminal right in the Village Office.”
As the discussion ended, Gagliano said he might propose an amendment to
the local Open Meetings Act that would allow for such virtual meetings.
He suggested that council direct Appel to research the issues and
perhaps invite Thompson to address the mayor and council at a future
meeting.
Gagliano said he is not insisting that such a mechanism be created. “I
don’t have some bent that ‘damn it, this is something that we have to
do.’ I just think it is something that we could do to help increase
communication amongst us. I don’t see that as anything other than a
win. I don’t see how there’s a ‘lose’ proposition in any of that.”
Mayor Gasteyer was still doubtful although he admitted “As many of you
know, I am no great fan of the Open Meetings Act, I guess because I
came from Washington where you have political parties, and legislative
bodies and caucuses [convening to work on issues outside of regular
posted meetings]. You have opportunities for staff to collaborate
together, so it expedites the public meeting.
But here with the Open Meetings Act, he said, “We trip all the time
over the fact that we have to have these ‘rolling quorum’ impediments
and we have these restrictions. But those are the rules of the game
with local government in New Mexico.”
The discussion ended with Gagliano offering to present a specific
proposal for such virtual meetings at the January 27 council meeting at
which Thompson and other knowledgeable persons would be invited to give
their views.
A frequent critic of Village government’s sometimes lax compliance
with requirements of the Open Meetings Act, Bob Borman, said he
was dismayed by the proposed attempt to create virtual meetings.
He said “It was disappointing to hear the mayor state at the January
13 Village Council meeting, that he is ‘no great fan of the Open
Meetings Act.’
“As the chief executive officer of the Village, the mayor is
responsible for the administration’s compliance with the act. The mayor
must embrace the 'spirit' of the act and demand adherence to the
‘letter’ of the act.
“As a member of the governing body and as the presiding officer at
Village Council meetings, the mayor, along with the councillors,
can avoid violating the act by refusing to conduct meetings or refusing
to take action on business items that fail to comply with the minimum
requirements of the act.
“Being a ‘fan of the Open Meetings Act’ should be a prerequisite for
seeking public office or employment with the Village,” Borman suggested. |
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