More lawmaker tweets? Legislators may liberalize Open Meeting Law

REUTERS/Ognen Teofilovski
Supporters say allowing officials to freely use social media can broaden the discussion beyond often-poorly attended meetings, bringing younger generations into the decision-making process.

Can government officials have discussions on Facebook or Twitter without breaking laws requiring public hearings?

Faced with social networking’s ubiquity, the Minnesota Legislature is discussing whether to liberalize online rules and, in effect, loosen Minnesota’s Open Meeting law.

A House bill has triggered bipartisan support and opposition. Supporters say freer rules reflect modern communication; opponents fear more decisions will be made out of the public eye, beyond council chambers and hearing rooms.

After more than a year of negotiations, bill sponsor Rep. Duane Quam (R-Byron) anticipates both chambers will take a final vote on his bill this session. 

A tweet or a discussion?

Currently, many politicians use social media to connect with constituents. However, questions arise when a social media discussion starts to look like a meeting.

Minnesota’s public-meeting formula is pretty simple:

  • A quorum of members must be present or participating
  • Official business must be discussed or presented
  • A vote could be taken
  • A discussion should be happening in real time.

Social networks can be immediate, and involve the public and multiple public officials. However, not everyone is on social media sites like Facebook and Twitter, and public meetings require notification that they’re going to happen — a Facebook post does not.

That’s why the bill’s language would allow social media discussions if they meet a few requirements:

  • The post has to be publicly viewable and open to public participation
  • The post must be first announced at a public meeting. A list of identified social media forms must be kept at the local government’s offices
  • No votes are taken online
  • Normal hearings and public meetings still take place.

Small, rural local governments units are most likely to potentially violate open meeting laws; some township boards consist of only two or three members, so replying to a person’s tweet could constitute a quorum.

“It’s easy to have two people accidentally get in a conversation,” said Quam, who used to serve on a school board. “You stop and you are putting gas in at the same time and start talking about an issue, and technically you might be violating open meeting laws.”

The Internet makes that accidental interaction even more likely, he notes.

In Minnesota, Quam’s supporters include partisan opposites Rep. Ryan Winkler (D-Golden Valley) and Rep. Steve Drazkowski (R-Mazeppa).

Supporters say allowing officials to freely use social media can broaden the discussion beyond often-poorly attended meetings, bringing younger generations into the decision-making process.

“This could open up our horizons a bit while allowing the use of things that are being used by a lot of people everyday,” said Gary Pederson, Minnesota Association of Townships executive director and main bill proponent. “It’s an enhancement of free speech; it’s not supposed to take away anything from those open meetings, and those meetings will still happen.”

The public’s right to know

Before any policy can be enacted, Quam has to clear some major hurdles. The first is the Minnesota Newspaper Association, which found the bill’s original version could “blow a huge hole” in the Open Meeting Law.

Those are the words of Mark Anfinson, an association attorney and lobbyist. The bill, he said, takes no consideration of open meetings at all and simply put all those exchanges outside of the law. 

Rep. Duane Quam
Rep. Duane Quam

“Public officials would have been almost completely free to exchange information with each other and deliberate with each other without any application of the open meeting law,” Anfinson said. “The odds are pretty decent in many cases you would have turned an actual meeting of a public meeting of a body into a ceremonial event where the officials would have showed up and confirmed what they’d already decided.”

Quam also ran into trouble on the House floor last week, when members of both parties protested that the bill was still too broad.

“What this potentially does is gut the Open Meeting Law,” said Rep. Jerry Hertaus (R-Greenfield). “It results in a lot of damages and lawsuits and litigation to cities.”

Rep. Kathy Brynaert (DFL-Makato) and Rep. Sondra Erickson (R-Princeton), both former school board members, said they could see social media easily being used to discuss issues the board has to vote on, such as school bonds.  “The bill needs more specificity,” Brynaert said.

Quam has taken their concerns into consideration in the bill’s final version, but disagrees that public officials will use this new provision to deliberately get around public meetings.

“We all know anything that happens online can easily be saved forever. That’s not what this is for,” Quam said. “There’s a strong consensus that we need to do something in this area this year because that’s how people communicate now, and we want to have communication between local government officials and the public.”

The record elsewhere

Similar online communications questions have popped up in other states. In 2004, Virginia’s Supreme Court ruled that some electronic communication may constitute a “meeting,” specifically noting Internet chat rooms or instant messaging, where communication is virtually simultaneous.

In 2006, the Missouri General Assembly passed legislation that any public business conducted through conference call, videoconference, Internet chat or Internet message board can be considered an open meeting.

States like Florida and Washington also lump many online interactions into their open meeting laws. Florida’s is particularly tough, keeping members of public boards or commissions from discussing online anything that will come up at a public meeting in the foreseeable future.

“The time span between communications is so instantaneous that [social media] begins to feel like a meeting,” said Murray Weed, a lawyer and former local government official in Georgia who has done presentations around the nation on the topic. “The Minnesota Legislature and in legislatures throughout the country, that’s the next big hurdle: How legislators are going to fall on social media?”

In Weed’s Georgia, social media communications and other electronic forms of communication do not violate open meeting laws. However, every state is different, and so are their expectations about “sunshine” and open meeting laws.

“Laws tend to be 20 years behind whatever the technology is. It’s perfectly appropriate that we are dealing with this right now,” Murray said. “The question is, how do you get the benefit of the immediacy and the instantaneous response on social networking sites and balance the public’s right to know?”

Comments (3)

  1. Submitted by Mike Worcester on 04/29/2014 - 12:10 pm.

    Nothin to Worry About At All

    Considering how tweeting and facebook posting has never, ever gotten an elected official in any trouble ever at all, we should have nothing to worry about here, correct?

    (And yes, that was sarcasm.)

  2. Submitted by Ray Lewis on 04/29/2014 - 12:14 pm.

    Thanks for starting the

    Thanks for starting the online discussion about social media discussion about the decision making process. Are there any internet sources that host discussions of topics like this?

    Links to the bills, hearing, documents and experts would be helpful; but the tags are an way to organize meta-data. I found the Institute of Government link for the Univ of Georgia, but not Weeds previous writing in the short time I had to look.

    Time, access, and the way various ideas, facts, and positions are put forward and considered to be key issues for:
    Web 1 and 2: Ethical Issues for Government Officials
    http://www.scu.edu/ethics/practicing/focusareas/government_ethics/roundtable/web2.html

  3. Submitted by Kathleen Doran-Norton on 04/29/2014 - 12:19 pm.

    Sheesh!

    My township initiated the beginnings of this bill several years ago, not to avoid open meeting laws, but to encourage public discussion. Not everyone is able to come to a town meeting – they may be working a night shift at a local plant, or in the fields farming. They may not be able to get child care, or are looking in on an elderly relative every evening. So what are our options?

    Our local paper has an anonymous comment function on its online version of the paper. These devices are terribly destructive to active citizen participation and open constructive dialogue. People take cheap, mean-spirited shots at each other, rather than talking straight-forwardly about issues. We ask folks to talk with respect to each other in a meeting – but anything goes in these online bash sessions.

    Our community has has an online local blog. But if two town supervisors comment on a subject – which may only be tangentially related to town business, we fear we run aground of the open meeting laws as they are currently written.

    We certainly weren’t thinking about township tweets (#pothole, #dustcontrol, #moregravel, #wheresthesnowplow). We envisioned opening defined conversations on our township website about some topic of interest, posting the online discussion for a specified time taking in comments from folks otherwise unable to participate, and then following up in a regular meeting at the town hall. We hoped one or more supervisor could ask questions online if a comment were unclear, or be able to share some facts about the topic without fear. We weren’t thinking about avoiding required public meetings or hearings, nor of coming to consensus on a topic online, nor voting in an online forum – we wanted to make participation more accessible.

    We take democracy and citizen representation very seriously in our township. But essentially township supervisors lose our freedom of speech in making any public comment online because of the current vagueness in Minnesota state law. How does that make any sense?

    (…oh, Gary and John, please don’t read this post. I could get in a heap of trouble.)

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