Desert Messenger Editor/Publisher
Quartzsite Town Clerk, Terry Frausto, issued the following letter to Mayor and Members of the Common Council for the Town of Quartzsite and Members of Advisory Boards, Committees and Commissions regarding Emails as Public Records and Appropriate Limitations on Email Communications.
The letter is a reminder "that all emails to and from Council members, board and committee members and Town employees concerning Town business are public records. She cautions members not to communicate with four or more members of the same board, which constitutes a quorum. (Evidently Frausto forgot that the Municipal Utilities Commission consists of only five members, and a quorum would therefore be three members. Also, the Personnel Board is a three-member Board, so a quorum would therefore be only two members.)
Frausto then asks the council and board members to forward all emails regarding Town Business to the Town Clerk, even if "only one line is about Town business" stating it is a public record and must be preserved.
Frausto asked Council and board members for their "cooperation in searching your private emails for messages sent or received in the past that relate to Town business," so she may "properly preserve these public records."
However, the Arizona Ombudsman's Open Meeting Law Booklet, clearly defines limitations pertain to a topic that is or may be presented to the public body for a decision, not any issue regarding the very generic phrase, "TOWN BUSINESS"!
OPEN MEETING LAW BOOKLET
Section 7.5.2 Circumvention of the Open Meeting Law.
Discussions and deliberations between less than a majority of the members of a
governing body, or other devices, when used to circumvent the purposes of the Open
Meeting Law violate that law. See Ariz. Att'y Gen. Op. 75-8; Town of Palm Beach v.
Gradison, 296 So. 2d 473 (Fla. 1974). Public officials may not circumvent public
discussion by splintering the quorum and having separate or serial discussions with a
majority of the public body members. Splintering the quorum can be done by meeting in
person, by telephone, electronically, or through other means to discuss a topic that is or
may be presented to the public body for a decision. Public officials should refrain from
any activities that may undermine public confidence in the public decision making
process established in the Open Meeting Law, including actions that may appear to
remove discussions and decisions from public view.
For example, Board members cannot use email to circumvent the Open Meeting Law
requirements. See Ariz. Att’y Gen. Op. I05-004 at 2. “[E]ven if communications on a
particular subject between members of a public body do not take place at the same time
or place, the communications can nonetheless constitute a ‘meeting.’” See Del Papa v.
Bd. of Regents of Univ. and Cmty. Coll. Sys. Of Nev., 114 Nev. 388, 393, 956 P.2d 770,
774 (1998) (rejecting the argument that a meeting did not occur because the board
members were not together at the same time and place.) Additionally, “[w]hen members
of the public body are parties to an exchange of e-mail communications that involve
discussions, deliberations, or taking legal action by a quorum of the public body
concerning a matter that may foreseeably come before the public body for action, the
communications constitute a meeting through technical devices under the [Open Meeting
Law].” See Ariz. Att’y Gen. Op. I05-004 at 1. This may be true even if none of the
members of the public body respond to the email. Id. at 2-3. If the one-way
communication proposes legal action, then it would violate the Open Meeting Law. Id.
However, other one-way communications, with no further exchanges, are not per se
violations, and further examination of the facts and circumstances is necessary to determine if there is a violation. Id. at 3.
CLICK LINK BELOW to view letter:
Town of Quartzsite letter to council & boards