In 1977, the State of Utah passed the Open Meetings Act (OMA). Its purpose is to ensure that “the state, its agencies, and its political subdivisions take their actions openly and conduct their deliberations openly.” By most measures, the School Board is one of the most open political groups in our community. Every meeting is recorded on video, is generally available within a few days of a meeting, and is placed on their website. Yet, one aspect of their meetings seems clouded in secrecy.
If you attend a Summit County Council meeting or a City Council meeting there will often be a Public Comment period. At the Park Rag we call it Open Mic. It’s a great chance for the public to share opinions and ask questions. In those meetings with the county or city, the public receives an immediate response from various members of the Council. For instance, I once asked the City Council whether they had already agreed to allow a gondola from Deer Valley to Main Street. Deer Valley’s President Bob Wheaton had appeared to imply that there was already an agreement during a previous speech. Various City Council members, the City Manager, and Mayor took turns explaining how the media often gets things wrong. However, what I did receive was immediate feedback and feedback from individuals. I knew exactly where City Manager Diane Foster stood, for example.
Contrast that with what seems typical of the School Board. When the public asks questions during Public Comment, there is not an immediate response. A response is later posted to the School District’s website. What’s wrong with that? First, from a citizen’s perspective, we elect individuals to the Board. If the response is a generic reply from the board, how do we judge what each elected official is thinking? Second, from the Open Meetings Act (OMA) perspective, deliberations are not taking place in public. This is where there may be implications for our School Board.
The OMA does say, “Nothing in this chapter shall be construed to restrict a member of a public body from transmitting an electronic message to other members of the public body at a time when the public body is not convening.” Yet, the OMA defines a meeting as a “convening of a public body or a specified body, with a quorum present, including a workshop or an executive session, whether in person or by means of electronic communications, for the purpose of discussing, receiving comments from the public about, or acting upon a matter over which the public body or specific body has jurisdiction or advisory power.” So, if School Board member Charles Cunningham emails School Board President Moe Hickey, that’s not a problem.
However, what if President Hickey emails the School Board members and says, “what do you think our response to the public comment on the PC CAPS building last Tuesday should be?” Emails go back and forth between a majority of board members discussing the matter and a discussion ensues via email. One of the Board members then types up a summary of the discussion and has it posted to the website. In effect, a meeting has taken place with a quorum of the School Board, items have been discussed, and decisions on policy may have been made. The OMA requires decisions to be made in public. Since there was no meeting and no opportunity for the public to participate in the email discussion, it could violate the Open Meetings Act.
This of course, may not be how the process is happening. Perhaps there is another open meeting where these topics are discussed. If so, we can’t seem to find it in any meeting notes. Likewise perhaps one member of the board has been selected to speak on every matter, without input from other board members. We would be both surprised and disappointed if that was the case.
So, if emails are being used to discuss and decide on a response to public comment, is it illegal? Someone would likely need to bring this to court to find out. The OMA does say that emails can be sent between members but never qualifies whether a discussion with a majority of public body members via email violates the act. Common sense would say that an “email meeting” is still a meeting and subject to the OMA, otherwise this loophole could be used all the time for private, group conversations to skirt the law. Either way, it seems to violate the spirit of the law.
Our hope is that the School Board will decide to respond immediately during meetings to public comment. This not only serves the public interest better, but it takes away a legal question that could arise in the future. The School Board has done an admirable job of using technology to enable anyone to “virtually” attend a meeting. Let’s hope they don’t continue to tarnish this success by keeping this part of the meeting in the dark.