Texting while governing: Smart phones outwit open meetings law

After months of public debate and hours upon hours of public hearings, Milton resident Laura Rencher found herself on the losing side of a bitter zoning fight before the mayor and City Council.

Political defeats are hard to take, but this was made all the more difficult when Rencher discovered that during public hearings on the issue her opponents were vigorously lobbying Mayor Joe Lockwood.

But they weren’t pressing their case in the open. Instead they were texting him privately on his smart phone.

“It stinks,” Rencher said. “It’s just not transparent.”

The exchanges took place during marathon hearings in April and June when the mayor and council spent hours listening to public comment from residents passionate about the path of residential development in the young city. Video from the meetings show Lockwood regularly reaching for his smart phone during the hearing, and phone records show the messages came from opponents of the zoning plan.

“OMG,” one text to Lockwood reads. The mayor responded, “I feel like I’m in a bad dream.”

Other texts were more direct lobbying and real-time rebuttal of the speakers.

“Why isn’t the developer being asked (to) sit down,” one text to Lockwood reads.

Another cajoles the mayor to limit comments from Councilwoman Karen Thurman. “Karen is recused and cannot say anything,” the text reads.

In some cases, the conversation was one-way, with a citizen sending Lockwood messages but getting no reply. In others Lockwood and others on the dais exchanged thoughts on the action with supporters.

Rencher said the whole meeting becomes a charade when an entirely separate conversation is being had on city officials’ cell phones. Councilman Bill Lusk agrees with Rencher and pushed to have the text exchanges entered into the city’s public record.

“During the course of that meeting the same folks on council were texting back and forth continuously. I took notice of that, and the result was the rezoning application was defeated,” Lusk said. “It was obvious they were sending text messages back in forth to folks in the gallery and probably elsewhere.”

Lockwood and others in city government turned over dozens of texts sent and received during the meetings in response to an open records request. The mayor said he is in favor of government transparency, but he said texting is a fact of daily life and not an attempt to hide anything.

“I certainly can multi-task,” he said. “Look at every business meeting you go to. People are receiving emails and texts all the time.”

Law doesn’t address texting

Both Rencher and Lusk suggest holding a private conversation amid a public debate violates the state’s Open Meetings Act, but the law doesn’t address texting during meetings.

Peter Canfield, a First Amendment and media lawyer based in Atlanta, said exchanging information in private during a public meeting can violate state law, but it depends on how many officials get involved and what they are talking about.

For example, if a majority of the members of a city council are sending texts among each other discussing an agenda item in a way no one else can see, that’s a problem, he said.

“If you do that for the purpose of evading a public meeting it has been held in other jurisdictions — and likely would be here — as a violation of the Open Meetings Act,” he said.

Carolyn Carlson, a communications professor at Kennesaw State University, said the law allows private, one-on-one conversations, regardless if via text or a whisper in an ear.

“If two council members decide to talk to each other and not let the audience hear them, that’s not a violation of the Open Meetings Act,” she said.

‘Gross violation of public policy’

But is such behavior — even if legal — right? Not according to Attorney General Sam Olens.

Nick Genesi, Olen’s spokesman, said the his boss is disgusted by the use of technology to subvert openness in public meetings.

“The public should demand better behavior from their elected officials,” Genesi said. But, he added, “Right now the current statute doesn’t cover this gross violation of public policy.”

Genesi said Olens wanted to write in language forbidding texting during public meetings into a 2012 rewrite of the state’s sunshine laws, but he said there was push back from the Legislature.

If true, that’s hardly surprising. State lawmakers are serial abusers of this type of communication. During a floor session, dozens of lawmakers will be tapping on their phones or sending private emails from their laptops to legislative allies, lobbyists and even reporters.

Of course, the Legislature has totally exempted itself from all open meeting and open records laws, so it is conceivable they would have no problem telling local officials to put down their phones while continuing to use their own.

Councilman urges total texting ban

In Milton, Councilman Lusk is pushing for either a ban on the use of texting or full disclosure of the conversations. He first broached the topic toward the end of another five-hour council meeting last month.

“Hey, we’re talking about transparency in the government and open meetings,” he said. “I think if we are sitting up here transmitting and receiving messages relative to the agenda items … they should be a matter of public record and included in meeting minutes.”

After some pointed debate, the council reluctantly decided to publish pertinent texts from April and June meetings as part of the city’s public record of those meetings.

Lusk said he would follow up with a proposal that texting be outlawed during public meetings. It just makes sense, he said.

“Any discussion that goes on in the course of a public meeting should be made public,” he said. “Meetings should be held in the sunshine.”

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As AJC Watchdog, I’ll be writing about public officials, good governance and the way your tax dollars are spent. Help me out. What needs exposing in your community? Contact me at cjoyner@ajc.com.