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Swapping emails, texts during meetings raises questions about law

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MADISON – Madison City Council members are emailing or texting colleagues, lobbyists, staff and others during public meetings, raising questions about whether the state’s Open Meetings Law has kept pace with changing technology.

The unseen flow of electronic communications — from the snarky and playful to real-time conversations on key matters before the council, including millions of dollars in public funds for redevelopment of the Edgewater Hotel or Overture Center — is revealed in records obtained by the Wisconsin State Journal under the state Open Records Law.

A review of 7,656 emails and hundreds of texts exchanged during council meetings from April 2010 through 2011 suggest awareness of the state Open Meetings Law, and no apparent violations of it.

But the records lay bare a previously unknown level of private communications at council meetings and suggest similar exchanges likely occur in other governmental bodies across Wisconsin, including the state Legislature. The records don’t include comments made on social media such as Facebook, which present their own challenges to open government.

Some see emails and texts as an efficient way to manage council duties, and because the records are public, as more transparent than council members and lobbyists whispering in the corners of the council chambers.

Others see it as disrespectful to those attending meetings or watching on TV, flouting the spirit of the Open Meetings Law, and a slap at open government.

Several council members — including some who email and text the most — and City Attorney Michael May said the city should consider tighter rules.

The state would also benefit from such a review, others said.

Attorney Robert Dreps, an expert in the state’s Open Meetings and Records laws, said evolving technology presents challenges to good government and that the public would benefit from more clarity on a host of issues, from a prohibition on elected officials doing public business on personal electronic devices to rules for what’s appropriate in meetings.

“It would be beneficial to explicitly address this in the statutes,” Dreps said.

The issue is vexing not only for the Madison City Council but for small and large governments across the country.

“This is a problem that’s popping up everywhere,” said Mark Caramanica, freedom of information director for the Reporters Committee for Freedom of the Press in Arlington, Va.

Violating spirit of the law

The city attorney and state attorney general discourage use of electronic communications between council members during meetings.

The spirit of the Open Meetings Law is to do business in the public eye, but the letter of the law is less clear.

State law bans the use of email and instant messaging to create a quorum capable of making decisions on government business, according to the attorney general.

Still, no Wisconsin court has ruled whether the Open Meetings Law applies to the use of electronic communications in creating a quorum of a government body, experts said.

The result: Many Madison council members have had conversations with colleagues — never reaching an illegal quorum — and with lobbyists, staff, constituents and others, sometimes as the subject of the exchanges was before the council, the records show. That was especially true with text messages.

Most emails dealt with schedules, information sharing and constituent questions, and a large volume were sent unsolicited to council members from the outside.

The city didn’t release 46 emails deemed personal and 138 protected as drafts, legal advice, spam or duplicates. Six council members provided provided the city attorney with texts — one member withholding 217 of them as personal. Eleven members said they had no texts, and three didn’t respond.

Madison’s recent release of emails and texts include messages about ordering pizza at late-night meetings or going out for drinks afterward, counting votes on hot issues, and desperate exchanges between council members, lobbyists and the public during debate over a narrowly failed effort on Nov. 15, 2011, to preserve $16 million in city assistance for the $98 million Edgewater project.

Dreps, who has represented the State Journal in records cases, said it was unfortunate that some council members exchanged texts about the Edgewater decision but didn’t debate the matter publicly.

“It’s not fair to say they didn’t have a debate, it’s just that some of them had one in private,” he said.

Mayor Paul Soglin, who leads meetings, on rare occasion sends brief messages through his phone.

“I would refrain from communicating with anyone on any subject before the council, other than a very procedural thing,” Soglin said. “When you text and email, it’s out there forever. Good government suggests we stay away from anything that could be questioned.”

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