Open Meetings Law and Transparency – Facebook Issues

SunshineIowa’s school board members’ and other elected officials’ use of electronic media raises issues about whether important discussions and deliberations are taking place  online instead of at a public meeting.

Iowa’s open meetings law defines a meeting as a gathering in person or by electronic means, formal or informal, of a majority of the members of a governmental body where there is deliberation or action upon any matter within the scope of the governmental body’s policy-making duties. Iowa Code §21.2.2.

Meetings shall not include a gathering of members of a governmental body for purely ministerial or social purposes when there is no discussion of policy …. Iowa Code §21.2.2. This means elected officials can get together over cocktails or lattes so long as they are not discussing business.

In general, meetings of elected officials are to be open to the public unless there is a specific exception and even then, nothing requires a meeting to be closed. Electronic meetings should only be held ….where such a meeting in person is impossible or impractical …. Iowa Code §21.8.1. For example, there is a severe snowstorm rendering travel to a physical meeting very difficult.

There is no language in Iowa’s Open Meetings law that provides that elected officials’ participation in Facebook is not an electronic meeting so it behooves elected officials to err on the side of caution. The Iowa Code indeed seems to recognize and prohibit such online informality by stating that  …all actions and discussions at meetings of governmental bodies, whether formal or informal shall be conducted and executed in open session. Iowa Code §21.3.  And it is certainly possible that a majority of elected board members would easily belong to the same electronic forum, perhaps even posting on a forum anonymously.

So what good common sense practices should elected officials observe about Facebook?

I. Do not comment about government business on a Facebook page if a majority of the elected government body are friends as this might constitute an electronic meeting subject to Iowa’s open meetings law. If one elected official of a majority is commenting and others are participating as silent friends, this is no different than when one official at a meeting is speaking and other members are listening.

II. A Facebook “like” can now be considered a form of speech or endorsement so do not “like” any matter within the scope of the governmental body’s policy making duties. Iowa Code §21.2.2

III. Even if a majority of the elected body does not participate in a Facebook page or group, an elected official should carefully consider his or her participation in the same and should always remember that he or she does not know if a majority of fellow board members are participating anonymously.

IV. A board member should always remember that electronic forums can be biased towards one viewpoint and that his or her effectiveness as a board member may be adversely affected if they are seen as biased.

V.  Facebook is not available to all–perhaps best of all, a board member should do his or her work at a truly public meeting.

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4 Responses to Open Meetings Law and Transparency – Facebook Issues

  1. Mary, you left out part of the disjunct in the not a meeting clause: “or no intent to avoid the purposes of this chapter.”

    What is your take on that? If a majority of board members were actually interacting with one another on private forums, then I would see intent. Or if was a group of, say, current (and former) school board members, then I would likely see intent. I’m curious how you see the intent part of the disjunct.

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    • Mary says:

      Michael, my intent was not to bore readers by writing too much! Below is the definition of a “meeting” from the Iowa Code:

      2. “Meeting” means a gathering in person or by electronic means, formal or informal, of a majority of the members of a governmental body where there is deliberation or action upon any matter within the scope of the governmental body’s policy-making duties. Meetings shall not include a gathering of members of a governmental body for purely ministerial or social purposes when there is no discussion of policy or no intent to avoid the purposes of this chapter. Iowa Code 21.2.2.

      You can see that meetings can be informal in nature and still count as meetings under the law. Further, when elected officials like school board members get involved in a Facebook page dedicated to school issues, this is not a “a gathering of members of a governmental body for purely ministerial or social purposes” (e.g. they are not attending graduation or a Hawks’ game) so there is no need to address whether there is “intent” to avoid the open meetings law. And when discussions involving elected officials on personal Facebook pages turn into discussions about school issues, these discussions seem to lose any social purpose.

      Even if the definition of a meeting was considered by some to be ambiguous (and I do not believe it is here although each case would need to be evaluated upon its own set of facts), the legislative intent is geared toward openness–“Ambiguity in the construction or application of this chapter should be resolved in favor of openness.” Iowa Code 21.1.

      My impression is that at least some elected officials are participating in electronic private or closed forums. Further, not everyone has access to Facebook or even computers to view any pages that may be public so even these are not accessible to all (a potential open meetings issue and an equity issue). Overall, elected officials should be conducting their work in public–then no potential violations of Iowa’s Open Meetings law applies and there is no inequitable treatment toward stakeholders when it comes to sharing information.

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      • Michael says:

        Thanks, Mary. That’s helpful. I don’t know enough about the law to make a judgment about legality. But in general, I’m in favor of public deliberation whether that be in meetings or outside of them. I think deliberating openly in board meetings, work sessions, listening posts, and other official meetings is great, and all too often talking about logistics and casting votes is the substance of any deliberation. That’s unfortunate. I also think it is great for individual board members to express their individual opinions on blogs, Twitter, the Press-Citizen, in responses to email, or Facebook (and other public means). I’d be concerned if open meeting laws were used to reduce public deliberation rather than increase it. Not that you are suggesting that they should, but that’s where my concerns lie here.

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  2. I consider waking quorums by email an electronic abuse with intent Michael. Too bad nobody has the time to do more FOIA’s/PRR’s…but what’s the point when R. Chace Ramey turns FOIA/PRR’s into a game of hide and see whack-a-mole. Even when one does get something that should be an open record, as in the case of my first FOIA/PRR which was for email between Murley, the Board, and Director Mike Cooper over Murley bringing Synesi* here in an unbid contract for a process audit of the district (directed by Murley himself initially in both phone calls and electronic communications…and yes I do have records to prove it…Murley’s had other email addresses you know), Ramey then redacted the open records produced well beyond what I believe to be remotely reasonable considering Murley read one of them to me over the phone word by word so I could transcribe it well before I put in the open records request. The district does whatever it wants, after sometimes playacting at transparency initially, and then withholds whatever it wants while it appears to me to frequently insist it has the right to define the law for itself in whatever way it pleases, and does this with an “if you don’t like it sue us” attitude as reflected in multiple emails I’ve seen. Shall I post examples of the district’s fabulous behavior on open records and/or transparency since Mr. Murley arrived? How bout this one: http://www.dailyiowan.com/2012/03/05/Metro/27332.html

    From what I’ve observed over Murley/Ramey rule of terror here, under the last 3 board presidents at least, is that it seems to me much of the real policy deliberation takes place in the executive meetings between Murley, the board president, and the board vice president and, except for the board members not privy to that, the board and committee meetings seem to be just for show.

    *Synesi, Murley recommended the board go with Synesi and that’s even in board meeting minutes…but surely no conflict of interest there? You know, with Synesi, Proact and The Supes** all run by the same two guys on paper.
    **The same The Supes for whom there are/were webpages showing both Murley and Ramey consulting/consulted for them and there are many pictures of Murley consulting in Chicago for them on that 20.5 no-bid contract under investigation by the FBI.

    It bothers me that the local media, i.e., the Press Citizen, Gazette, KCRG, etc., and the board members who approved the Proact payment/s, don’t seem to be sufficiently bothered to publicly discuss in open session the fact that Murley and Ramey (two most powerful ICCSD Administrators in rule of terror) consult/consulted for The Supes, which is run by the same alleged businessmen who then also get lucrative contracts under two other businesses, Proact and Synesi, that are in bed together with the same one for which our administrators consult/consulted.

    The Chicago Public Schools “superintendent” also consults/consulted for the The Supes and then they magically got an unbid 20.5 million contract that Murley is shown in pictures consulting on, and he told me what he was doing on the phone while in transit to do it at that time it was happening…and that’s just the part we’re hearing about in the news so far…wonder if and how much exactly CPS may have payed Proact and Synesi for other work? The best guy at Synesi seems to have perhaps killed himself not long after delivering his report here that called for more, not less, transparency. Infer what you may but his obituary listed “Suddenly.” as the cause of death. I talked to him on the phone after having twice been promised by Murley that he would get documents to that auditor. The auditor was pretty clear on the phone with me that they didn’t reach him as promised. I have read receipts from one of those two businessmen under investigation by the FBI in Chicago for emails sent to that auditor.

    Seems to me that it’s rather likely there’s more going on outside of public open meeting deliberation than anyone but maybe Murley may know…it’s like living in a John Grisham novel…I sure hope the FBI comes to town so we can find out how it all ends…because with the board president and vice president going after what I view as the attack policy Murley and Ramey drafted behind closed doors https://youtu.be/YbFUjMglgq0 on community comment/public comment AGAIN with what seems to me a rather foregone conclusion that they will now cease allowing comment on individual agenda items during the meeting replaced by one 3-4 minute community comment period per individual at the beginning of the meeting, transparency and accountability is becoming ever more challenged here.

    Oh, check out this one too…The Supes had a very, very special contract with The School Superintendents Association (AASA) most references of which on AASA have been wiped but for ones printscreened of course…again, how interesting the overlap of Murley and The Supes…and The Supes were this deep in the AASA and Proact hiring of course had nothing to do with helping school districts all over the country with locating their next superintendents in what appear to have been an increasing number of hires that were not vetted through the public first but were by Proact: http://www.aasa.org/content.aspx?id=35414&utm_content=buffer0a65d&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer

    Yep, it’s like living in an Education Mafia story by John Grisham…wait till you hear how the testing industry and legislator lobbying overlaps the story…um, and Iowa just increased its standardized testing and changed its vendor? Gosh, it’s all gonna be a real cliffhanger for a while…one that would require the FBI or, better still, Frontline to even begin to figure out all of the overlap I would think…cause not even John Grisham could write anything this nationwide dirty.

    By the way, my blood pressure has gone up quite high recently after being unusually low for my entire life…but my obit won’t read “Suddenly” as the cause of death…though it might possibly read “by rule of terror”…I’m sure it would make them very happy with the sheer determination they’ve gone at it with.

    Mary, have you looked to see if anyone at that vendor recommended to the district by Brian Kirschling has any ties to The Supes/Proact/Synesi or the two alleged businessmen that are listed for those three companies? I wonder who brought that company to Kirschling’s attention? Did you see how indignant he was during one of the board meetings that went to vote when it was outed that he’d personally recommended them to the district? He turned beet red and was so offended because he felt what he’d done was just fine since he said he was planning to abstain from the vote – as if that balances the playing field for any other company that might have been interested in getting that contract for services that didn’t have a board VP recommend them, hahahahahaha. I’d sure like to know what Kirschling’s ties to that company really are…but then again, does it really matter, I mean, when the Superintendent and HR director consulted for The Supes and Synesi and Proact get lucrative contracts here, it seems to be the rule and not the exception that things like this can happen…oh, and by the way, how bout all those new vendor payments to Des Moines…I seriously, seriously suggest that someone with money and lower blood pressure FOIA that Critelli Audit of the Des Moines Public Schools construction bidding oversight under Duane Von Hemert…cause, um, it’s just plain disappeared from the Critelli site: http://www.critellilaw.com/press-release-dm-school-district-investigative-report-released

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