The Loveland, Colorado Reporter Herald announces a new city policy banning all texting by council members during council meetings :
“Members of the Loveland City Council voted Tuesday night to stop the practice of texting during meetings.
“Councilor John Fogle brought the issue up near the end of the meeting, explaining ‘we need to stop texting at this dais. We need to stop it completely, not a little bit, not a medium bit, just don’t do it.’
“Fogle suggested an emergency phone could be placed at the city clerk’s desk so people could reach councilors in an emergency and that cellphones would not be allowed at the dais.
“‘Texting at this dais is very ill-perceived by the community. It has gotten to the point where they’re noticing it all the time. One of us picks up a phone up here and you here the “rrr, rrr, rrr, rrr” rumble out in the audience,’ Fogle said.
“The council had discussed texting at its Feb. 22 meeting after Fogle made the same suggestion. At that time he said: ‘We get a lot of blowback from the community about this.”
Based on past open meetings decisions issued by the Kentucky Attorney General, a strong argument can be made that member texting about public business during a public meeting violates the open meetings law.
Kentucky’s open meetings law requires all agencies to “provide meeting room conditions, including adequate space, seating, and acoustics, which insofar as is feasible allow effective public observation of the public meetings.”
“Observation” has long been construed to mean the ability to both see and hear what is transpiring at a public meeting. This was confirmed in the 2013 amendment to the law requiring adequate acoustics.
In 2001, the Kentucky attorney general determined that officials who whispered to each other about public business during a public meeting violated the open meetings law. Text messaging is equivalent to electronic whispering. Like whispering, texting abridges the public’s right to hear what is transpiring.
Clearly, one of Kentucky’s experts, Louisville attorney Jon Fleischaker, agrees.
In an April 7 Murray Ledger & Times report, Fleischaker stated:
“We’ve got a whole new technology. We’ve been fighting all these years, and now you have members of a public board sitting at a public meeting, texting each other. It’s really nothing that is different than in the old days where they would try to write a note to each other and pass it around. If they are discussing, at a public meeting, about any discussion, about a public matter, about public business at a public meeting – it doesn’t matter how it’s done or the methodology – any discussion is public. Now what you’ve got are sort of naked efforts to avoid public discussion because, for some reason, it’s uncomfortable. Well, that, in and of itself, is pretty telling. If somebody doesn’t want me to know, I want to know.”
Passing notes, whispering, emailing, texting — all are functionally equivalent and all violate the open meetings law.
Premature destruction/deletion of of those communications — on slips of paper or both public and private devices — opens a whole new Pandora’s Box of illegal conduct.