By Marsha Shuler
Capitol news bureau
October 22, 2012
Louisiana’s attorney general has cautioned public bodies that some email communication among their members could be violations of the state’s open meetings law.
The Mandeville City Council voted in August to seek advice after Councilman Ernest Burguieres said he wanted the new council — with four first-time members — to understand open meetings laws. He pointed to the city’s recent history of under-the-table deals.
Former Mandeville Mayor Eddie Price is serving a 40-month federal prison sentence in Leavenworth, Kan., on charges of corruption and income tax evasion.
“It would not be appropriate for members of a public body to utilize electronic communication to engage in any secret balloting to find out how council members would vote or as a method of circumventing the purposes of the Open Meetings Law,” assistant attorney general Emalie A. Boyce wrote in a newly released opinion.
Boyce said the Open Meetings Law is designed to ensure that public business is performed in an open and public manner and residents are advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy.
She said nothing in the law would prohibit a council member from sending or forwarding an email to another council member expressing an opinion on a matter to be considered by the public body that does not ask for or invite a response.
“This is true whether the content of the email originates from a council member or from a constituent. Even back-and-forth exchanges on a particular issue through email between less than a quorum would not, in and of itself, constitute a violation of the Open Meetings Law,” Boyce wrote.
“However, given the instruction to liberally construe these statutes, this practice could raise concerns when any such discussion is then forwarded to other council members, which could result in an email chain reflecting a quorum of council members’ opinions on a matter which will ultimately come before a vote. Such could have the effect of a walking quorum. ... ”
Walking quorums are prohibited under state law. A walking quorum is a situation whereby different members of a public body leave a room and other members of the public body enter a room so that an actual quorum is never physically present, however, an actual quorum participates in the discussion of the issue.
In a public meetings challenge, a court would likely look at the nature of the communication as well as the number of individuals on the public body who were involved in the email chain, the attorney opined.
“It is the opinion of this office that the mere passing along of information does not seem to invoke a ‘convening’ of a public body for purposes of the Open Meetings Law,” the Attorney General’s Office advised.
Instances of permissible behavior include a council member:
- Relaying an opinion to other council members via email about a topic that may later be discussed by the public body as a whole;
- Forwarding requests, information or opinions received from constituents to other council members on a topic that may later come before the public body; or
- Forwarding a request received from a constituent requesting that council member to take action on a particular matter to other council members.