To e-mail or not to e-mail

Oak Park trustees grapple with whether e-mails mar openness of decisions

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By DREW CARTER

Oak Park trustees debated last week about their use of e-mail messages to discuss board business, a practice heralded by proponents for its efficiency and questioned by sunshine advocates as being against open-government ideals.

The discussion?#34;part of an all-day Saturday session to determine board protocols?#34;was begun by Village President David Pope, who attended a conference with other trustees on the state's sunshine laws.

Pope explained there were two schools of thought presented at the conference. One side argues that e-mailing about board business can violate the Open Meetings Act (OMA) in two ways: serial e-mails or reply-all e-mails that involve three or more trustees.

A serial e-mail would be if Trustee A sent a message to Trustee B, who then forwarded the message with her own comments to Trustee C, who then forwarded the message with his own comments to Trustee A. All three trustees would have communicated with each other on the topic, just as if they had carbon-copied one another on multiple messages on an issue before the board.

The other side claims e-mails do not meet a crucial definition required for a "meeting," that specifically, there needs to be a "gathering" of three or more trustees. E-mail messages?#34;no matter how many trustees read them, do not constitute a gathering?#34;they argue.

That's the opinion of Ray Heise, village attorney for Oak Park, which led at least three trustees to defend the practice. Heise said that use of e-mail is different from other technologies that would allow for simultaneous exchanges of comments, such as in a chat room.

"There is nothing wrong with sending an e-mail to every board member," said Trustee Geoff Baker. "It is not a gathering. Mr. Heise has given us that explicit opinion."

Baker, an attorney, said that even if a case were pending on e-mail use as a violation of OMA, a final Illinois Supreme Court ruling would not be rendered for another six to eight years?#34;after most trustees would have left the board, he said.

Trustee Greg Marsey agreed with Baker, saying, "Why would we agree to limit our ability to communicate effectively?" adding that to do so would mean the board's taking longer to reach consensus on issues.

The Illinois Attorney General's Office's 2002 "Guide to the Illinois Open Meetings Act" states: "Exchanges of e-mail and chat room discussions on issues being deliberated by the public body that have as their intent the formulation of policy outside the public view violate the spirit if not the letter of the Open Meetings Act."

Terry Mutchler, the office's Public Access Counselor, echoed that position, saying government bodies cannot use telephones, internet chat rooms or email to circumvent the law.

After the meeting, Marsey said that if it were the attorney general's opinion that no distinction existed between e-mail and chat rooms, he would likely not favor further e-mail discussions on board business.

Trustee Ray Johnson worried that some conversations on e-mail "fell off the tightrope" of appropriateness.

"I just think we're safer in staying away from this," Johnson said.

Trustee Robert Milstein disagreed, saying, "I don't think we get into extensive policy making. We ask for explanation. We ask for clarification....I don't want to see that we're holding our meetings electronically."

Pope said he was "highly uncomfortable" with the use of e-mail for discussion of policy for a few reasons. First, there is the potential "to undercut" the inherent OMA idea of transparency, and asked that if the board continues to use e-mail that all messages go to all trustees and be posted to the village's web site.

Pope said the prior board was "not as tech savvy" as this board, but "there were times when I walked into meetings concerned about the fact that it appeared that there were decisions arrived at outside of the context of public discussion. I think that it had the effect of undermining the legitimacy of some of the decisions made by the board."

The board also discussed e-mails being accessible by requests under the Freedom of Information Act. Like Pope, other trustees suggested that their e-mails be made available to the public to avoid the sense that the discussions are being held behind closed doors.

But Heise said that most of the messages would not be available under FOIA, citing an exception to the law that allows certain documents to be kept private.

The exception to which Heise referred is: "Preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body."

"The big news in e-mails is volume. It is a volume issue" because each has to be examined, Heise said, making hours of work for village attorneys.

E-mail discussions before a vote "enables me to be a better public servant," Baker said, adding that he conveyed how he would vote on an issue "maybe a half-dozen times" in e-mail messages. He said that he never e-mails something he wouldn't say at the board table.

"I want to make it clear to everybody," Baker told his fellow trustees. "I am going to continue to use e-mail because I think it's in the best interest of Oak Park and best interest of my being a public servant."

Heise is expected to further review disposal of e-mails and other FOIA specifics before the matter returns before the board.

CONTACT: dcarter@wjinc.com

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