Focus

The Legalities of Board Business Online

by R. Craig Wood

You are preparing for an important school board meeting. You want to give your board members an advance look at a plan to redistrict the school district’s middle schools for better racial balance. You know your board hates surprises so you send the five board members a draft of the plan through e-mail.


One board member sees immediate problems with the plan and he forwards his concerns to a second member. The second member adds her comments and sends the combined message to a third. The third member mentions the plan to a friend of hers at the local newspaper. She hopes the newspaper will print an editorial in support of the plan.

The newspaper runs an editorial but not the one the board member was expecting. First, the reporter makes a Freedom of Information Act request for all documents, including e-mails, relating to or discussing the plan. The newspaper then slams the school board for holding an illegal meeting in violation of the state’s open meeting laws and calls for the immediate resignation of the offending board members and the superintendent.

What went wrong? How could such a seemingly benign act lead to such public outrage?

The Public’s Business
The answer is simpler than it may at first appear. You and your board simply forgot about your state’s “Sunshine law” and the Freedom of Information Act.

Open meeting laws were developed before the Internet brought us e-mail, instant messaging, listserves, chat rooms and similar forms of digital communication. Some states have made their laws conform to the electronic world; others have not. But electronic communications among public officials still must be analyzed in terms of the express language of these laws.

The Sunshine laws, as open meeting statutes are often called, are intended to keep public business in the open, with citizen knowledge and input. Private deals in smoke-filled back rooms are meant to be a thing of the past. The town hall meeting, where everyone has equal information and an equal voice, is the ideal. That’s not possible in a representative democracy, but Sunshine laws are intended to keep public decision making open and accountable.

The key to complying with the Sunshine laws is to know when a meeting is taking place. California law defines a meeting as “any use of direct communication, personal intermediaries or technological devices that is employed by a majority of the members.” Montana statutes say a meeting is “the convening of a quorum whether corporal or by means of electronic equipment to hear, discuss or act upon a matter.” These and other states allow electronic discussion and decision making so long as the electronic meeting otherwise conforms to the open meeting laws.

Some states, such as Virginia, are more restrictive. Virginia’s open meeting law simply prohibits any meeting where “public business is discussed or transacted through telephonic, video, electronic or other communication means where the members are not physically present.”

A competent school system administrator will make certain the board is informed of the Sunshine laws of the state and that procedures are in place to ensure violations do not occur. Generally, the procedures should follow the steps that traditionally have been employed for meetings and communications where technology was not used.

Administrators and boards should avoid electronic discussions related to a decision. Simply sending an agenda, a board packet, background reading material and the like is generally fine. It’s only when there is a response, a reaction or some similar interchange that could be characterized as a “discussion” or “deliberation” that a meeting is implicated. Public officials know they may not discuss public business in private meetings, even if those meetings occur accidentally, as when two board members meet at a ballgame or PTA meeting. They usually understand it would be equally a violation to hold a conference telephone call to discuss a public matter. But e-mail has become such a quick and natural part of academic and business life that often users fail to remember that an e-mail is no less a communication for public purposes than a casual meeting or a telephone call.

Two board members usually can discuss a matter between themselves, physically or electronically, because most Sunshine laws forbid only deliberations among a majority or quorum of the board. But when a listserve or chat room is used, it may involve a quorum. Likewise, when two board members involve a third (or whatever constitutes a quorum) by simply forwarding an e-mail, the law is violated by this serial communication.

Printed E-mails
E-meetings are becoming increasingly easy and popular. In states where they are legal, the key is to allow the public the same access they would have to a physical meeting. Several alternatives exist, beginning with something as simple as a speakerphone for the public where some board members are attending by telephone. If computer-based technology is employed, a large screen at a public meeting place can allow the public to follow along with the board.

Casual, informal e-mails between or among administrators and board members may not immediately violate the Sunshine laws, especially where a quorum is not involved. However, they never know when one of them will forward it to enough others to constitute a violation. When the violation occurs, everyone involved—not just the final offender—is implicated.

Administrators and boards also must not forget the Freedom of Information laws, which allow the press and public to demand copies of most documents created, received or held by a public entity. E-mails are electronic documents that are subject to FOIA laws in the same way as official reports and correspondence. If the content of an e-mail addresses a matter of public concern, it doesn’t matter that the e-mail was sent from or received by a private computer. The primary factor is the content of the communication, and FOIA laws are generally broader in their reach than open meeting laws. Increasingly, public officials find themselves sorely embarrassed by e-mails they sent or even innocently received that later are quoted prominently in newspaper headlines.

All administrators and boards should adopt and follow acceptable use policies that have been reviewed by legal counsel. The prudent public official then will treat every electronic communication as if it will be the subject of a FOIA request. Public and personal business should never be combined in a single e-mail because the public business makes the entire e-mail subject to a FOIA request.

These simple steps followed consistently and diligently will avoid the majority of legal and ethical issues created by the use of Internet technology. The principles are familiar, only the context has changed. Keep your school board and yourself out of trouble by taking these simple measures before a problem arises.

Craig Wood is an attorney with McGuireWoods, P.O. Box 1288, Charlottesville, VA 22902. E-mail: cwood@mcguirewoods.com. He is immediate past president of the Education Law Association.