Text-Gate in Lowell:

Elected officials sending secret messages to each other during public meetings may be illegal

Tom Duggan – July, 2008

Last week, Lowell City Councilor and former Lowell Mayor Rita Mercier filed a motion requesting that the council ban the use of cell phones and other electronic devices during council meetings. The motion was filed, Mercier says, because councilors like Kevin Broderick were seen using a cell phone to send and receive text messages during council meetings. The council’s rules subcommittee is expected to take up this issue but insiders say there is not enough support among councilors to ban cell phones and text messaging while public meetings are being conducted.

The Town of North Andover has no formal policy regarding cell phone use or texting, however, according to School Committeeman Dr. Chuck Ormsby, “in-formally, cell phones are discouraged and turned off. I’ve never been aware of anyone using cell phone for voice or text messaging during a meeting. I wouldn’t appreciate it if anyone did, especially to another committee member while pubic discussion is taking place,” Ormsby said.

In Methuen, City Councilor president Phil Lahey said he was “shocked” at what was going on in Lowell. “That is a total joke!” he exclaimed. “In Methuen, it’s called common sense and common courtesy. We all shut off our cell phones at the beginning of the meeting, except for maybe, Councilor Giardianno. We are doing the people’s business in public and all discussions should be in public. There is no excuse for sending secret messages back and forth during a meeting,” Lahey concluded.

In Lawrence, council president Patrick Blanchette initially posted a sign on the door of the city council chambers prohibiting use of cell phones during council meetings. Within a few weeks of posting the sign, however, Blanchette was seen receiving messages on his phone and when called on it by the Valley Patriot changed the informal cell phone policy from prohibiting their use to placing ringers on vibrate during the meetings. The council president in Lawrence has discretion over the rules of decorum when presiding over council meetings and does not need an official rule to be passed.

In Massachusetts, communication among elected officials is regulated by the Open Meeting Law, “regardless of new technologies.”

According to the Essex County District Attorney’s Office, which regulates and enforces the Open Meeting Law in Essex County:

“It is a violation to e-mail to a quorum messages that can be considered invitations to reply in any medium, and would amount to deliberation on business that must occur only at proper meetings. It is not a violation to use e-mail to distribute materials, correspondence, agendas, or reports so that the committee members can prepare individually for upcoming meetings.”

And on the Middlesex County District Attorney’s website, which regulates and enforces the Open Meeting Law in Lowell, it states with regard to e-mail and telephone use, “Discussions by telephone among a quorum of members of a governmental body on an issue of public business within the jurisdiction of the body are a violation of the Law.”

No legislation or regulations exist however, specifically prohibiting emails or text messages among one or two members of a governmental board. However, according to the public record laws, written notes passed among government officials during a public meeting are subject to the Freedom of Information laws and requests for such communications must be turned over to the public.

According to the Middlesex DA’s website: “members of governmental bodies should also be cautious about communicating via email one on one. This is because private, serial conversations may reach a quorum of members without the knowledge of all participants.”

Former Georgetown Selectman Lawrence “Lonnie” Brennan said he sees no difference between passing notes to each other during a public meeting and sending a text message. “I see absolutely no difference between sending a secret communication such as a written note to a fellow selectman during a meeting and sending a text message to that same selectman. It is secret communication during what is supposed to be a public discussion and if it’s not illegal it should be,” Brennan said. Brennan is a candidate or State Representative and said that such secret communications open up cities and towns to “all kinds of collusion and deal making.”

Meanwhile, House Bill 3217 introduced by State Representative Stephen Kulik (D-Worthington) would make further changes to the Open Meeting Law regarding penalties for violations. A public hearing on the bill was held June 19th.

This issue of public officials text messaging during public meetings is a relatively new issue being taken up all over the country as to how it falls within the open meeting laws.

According to Rapidcityjournal.com, in Rapid City, South Dakota the City Attorney, Jason Green, recommended that the Rapid City Council limit or prohibit electronic communication during public meetings. Several council members raised concerns recently about other members using instant messaging during meetings to ask people to vote a certain way or ask for a second on motions. Some also have raised concerns about group e-mails sent to the council that could, in essence, allow policy to be set online.

As stated on Rapidcityjournal.com, Green said, “I believe that’s the safest course, and conforms best with the notion of conducting the public’s business in public. This is really an open-meetings question.”
Alderman Deb Hadcock, also of Rapid City, said that asking individuals informally to stop e-mailing and instant messaging hasn’t worked. Now, several council members believe it’s time for an official policy. “It hasn’t just been a concern of a couple, it’s been a concern of many,” she said.

“We want to be fair to the public and to other members of the council.” Hadcock said instant messaging is “problematic” because there is no way to track them. But if people want to instant message during meetings, the text should be posted on the screen so the audience and other members can view them.
And in Santa Rosa, California, the City Council last month adopted a ban on sending, receiving and reading electronically produced messages during their weekly meetings.

The new policy is intended to assure the public that officials aren’t being secretly lobbied on critical issues via text messages and to guarantee to those who speak at council meetings that the council has their undivided attention according to pressdemocrat.com. So now council members have to put down their BlackBerries and cell phones during the course of the meeting, said City Attorney Brien Farrell.  Should any member violate the policy, Farrell said the e-mails or text messages likely would then have to be shared with the public in conformance with the state’s Brown Act, an open-meeting law that protects against government secrecy.