OML AO 5577




Freeman, Robert J (DOS)


Thursday, March 22, 2018 2:18 PM




RE: Special Session



If you send an email message to the four other board members now, one might see it right away because that person is sitting in front of the screen. A second will see it tonight when he or she gets home.  A third won't open it until tomorrow. And the fourth ignores it. The point is that there is no instantaneous or contemporaneous exchange on the part of a majority of the board. Because that is so, I do not believe that the Open Meetings Law would be implicated. That situation is analogous to the old‐fashioned interoffice memo. Each piece of mail would be deposited in the mailbox at the same time, but the recipients would receive and open the mail at different times. I doubt that anyone would content that that would run afoul of the Open Meetings Law.

On the other hand, if a majority gets together via a chat room, instant messaging or through a telephone conference call, I have little doubt that a court that would determine that there was a failure to comply with law. There would be a virtual meeting without the public's knowledge or the ability to observe the members of the board.

A key element of the Open Meetings Law is expressed in its statement of intent, section 100, which states in part that the public has the right to attend, listen to and observe the performance of public officials.  If a majority communicates in the manner described in the first sentence of the preceding paragraph, the public would have no ability to observe its elected officials.

I hope that I have been of assistance.