To improve compliance with the Right-to-Know law (RSA 91-A), all newly elected officials should receive information on the Right-to-Know law to educate them on their responsibilities to insure an open and transparent government.
After town elections, Todd Selig, administrator for the town of Durham NH, informs all town council members about the Right-to-Know Law. His letter below, serves as one example of how officials can proactively educate other officials to improve compliance with the Right-to-Know law.
Letter sent to officials:
Dear Members of the Council and Soon to Be Members of the Council,
I annually send this introductory email to the new Council with a little bit of information concerning email and public meeting protocol in light of the Right-to-Know law (RSA 91-A).
RSA 91-A requires that all public meetings are open to the public with very few exceptions. A public meeting, even those that are non-public, must be posted in advance so that the public is aware that the public’s board is planning to meet, where it will be meeting, and a general sense of what will be discussed. This allows members of the public to attend the meeting if they desire to listen to or observe the proceedings. Town Council meetings must by Town Charter be posted 48 hours in advance of a meeting. All other boards, committees, and commissions must provide for 24 hours posting.
What is a Meeting?
It is the convening of a quorum (or in the case of the Durham Town Council a majority for the purpose of the Right-to-Know law) of a public body, “whether in person, by means of telephone or electronic communication, or in any other manner such that all participating members are able to communicate contemporaneously,” for the purpose of discussing or acting upon any public business. RSA 91A:2, I. This includes work sessions.
What is NOT a Meeting?
The law makes it clear that certain gatherings of public officials are not meetings subject to the Right to Know law (see RSA 91-A:2, I). They include:
- Chance, social, or other encounters “not convened for the purpose of discussing or acting upon . . . matters [relating to official business] if no decisions are made regarding such matters”
- Strategy or negotiations relating to collective bargaining
- Consultation with legal counsel
In Durham we have adopted a very open policy with respect to public access to communications. To this end, it is important for you to know that emails that you send to the Town Office will be made available for public inspection upon public request. In addition, ALL emails that I send to one member of the Council, unless they are of a purely personal nature with no local government significance (such as illness, family matters, etc.), are copied to all other members of the Council. This keeps everyone on the same page with the same information.
In addition, ALL email communication that I send to the Council is also copied to Jennie Berry and placed into a file for public and media inspection. Informational emails that you send to me (without also copying the full Council) are not placed in the public binder unless I specifically respond to them although they could be requested by a member of the public at any time. To fully comply with changes to the Right to Know law made in 2008, any emails sent to me in which all or a majority of Councilors are also copied will be placed in our public folder. If for some reason an email circulates among a majority or the full Council in which I am not copied, please take it upon yourself to ensure we receive a copy of that transmittal for placement in the public folder.
Please know that anything you put in an email and send to the Town could potentially show up the next day in Foster’s, the Union Leader, or any other media publication if a local reporter was to visit, call, or email the Town Hall and request a copy which does sometimes happen. Residents, developers, and local businesses also request copies of email streams from time to time and these are subject to public disclosure unless the subject is specifically exempted by the Right-to-Know law (i.e., legal correspondence, personnel information, etc).
In this day and age of lightning-speed email, Facebook, and other on-line communication — great concern has existed as to whether ongoing and deliberate two-way communication between a majority of members of the Council does in fact constitute a public meeting — and an illegal one that has not been posted at that. In Durham, we have historically taken the position that such electronic communication does constitute a public meeting. Changes to the Right to Know law in 2008 are consistent with Durham’s historical interpretation.
Communications Outside a Meeting
RSA 91-A:2-a, limits the use of communications outside a public meeting held in compliance with the law.
- No deliberations outside a public meeting.Public bodies may deliberate on matters of official business “only in meetings held pursuant to and in compliance with the provisions of RSA 91-A:2, II or III” (i.e., only in properly noticed public meetings). This does not mean that any mention of a matter of official business outside a public meeting is illegal; however, it is illegal for the body to deliberate on such a matter outside a meeting – i.e., to discuss the matter with a view toward making a decision. This includes discussions by email and other electronic means! The intent of the law is that such matters should be deliberated in public.
- No circumvention of the spirit or purpose of the law. Communications outside a meeting, “including, but not limited to, sequential communications among members of a public body,” shall not be used “to circumvent the spirit and purpose of this chapter.” This is intended primarily to prevent public bodies from skirting the “meeting” definition by deliberating or deciding matters via a series of communications, none of which alone involves a quorum of the public body, but which in aggregate include a quorum.
To ensure that the Council does not inadvertently have any illegal meetings, we have opted over the last several years to keep two-way email and electronic communication between all Councilors to a minimum. I have tried to craft a few concrete examples to illustrate this situation more clearly below.
Example #1: Examples of Problematic Email Communication between Councilors:
Councilor 1: Is there consensus that the Town should purchase land parcel XYZ for a price of $1,000,000?
Councilor 2: Absolutely.
Councilor 3: Yes.
Councilor 4: Full speed ahead!
Councilor 5: Go.
Councilor 6: Buy it now while the getting is good!
Councilor 7: I vote yes.
Councilor 8: I vote yes.
Clearly, a trend is evolving in which a majority of members of the Council are one by one lending support to a decision — but without the public’s knowledge that a discussion is taking place. This type of email interaction would be a violation of state law. The discussion should take place at a public meeting.
Example #2. Examples of Problematic Email Communication between Administrator and Council:
Administrator: What does everyone think about developing an ordinance that prohibits pink colored houses in Durham?
Councilor 1: Great Idea.
Councilor 2: I hate pink. Good going. Long overdue.
Councilor 3: As long as my house is grandfathered!
Councilor 4: Super.
Councilor 5: As soon as possible this reform is needed.
Again, public business is being conducted and “discussed” electronically without the public’s knowledge. This would be a problem. The topic would be more appropriately discussed at a public meeting of the Council.
Example 3: Example of Appropriate Communication between Administrator and Council:
Administrator: I am planning to take action XYZ that is within the Administrator’s authority per Charter and wanted to let the Council know of the pending action so that if there are any concerns, these can be brought to my attention in a timely way.
Councilor 1: I have a concern.
Administrator: Thank you for expressing your concern. We will schedule this for discussion at the next public meeting of the Council.
Example 4: Example of Appropriate Communication between Councilors:
Councilor 1 to All Councilors: Madam Chairperson. I want to schedule a discussion for the next meeting dealing with topic Y because it is very important for a variety of reasons impacting our community.
Chairman: We will put topic Y on the agenda for the next meeting so that all Councilors may weigh in on the subject and so that the public will be informed of the issue. Thank you for the suggestion.
Please do not hesitate to contact me if you have further questions in regard to Right-to-Know law issues.