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Legal Eagles: When is email an open meetings law issue? 

by League General Counsel Kim Hibbard

Over the last few months, we’ve been traveling around the state with our colleagues from the UNC School of Government for the biennial Essentials of Municipal Government courses. In the “What Municipalities Do and How They Do It” session, one issue that resonated with elected officials involves communication by email. Newly elected officials are usually aware that the public records law applies, but they often have not thought about email in the context of open meetings. Can a series of email exchanges really run afoul of the open meetings requirements? 

In a word, yes. It depends on the content of the exchange and how the exchange takes place. Suppose a town council member sends an email to all the other council members with a draft proposal on an item that will come before them at their next regular meeting. What if the members then make comments, using reply all to respond back and forth to one another? This might be a temptingly efficient way to hone the proposal, but have they inadvertently crossed the line into open meetings territory? 

The North Carolina open meetings requirements are applicable to all official meetings of public bodies. An official meeting is defined as “a meeting, assembly, or gathering together at any time or place or the simultaneous communication by conference telephone or other electronic means of a majority of the members of a public body for the purpose of conducting hearings, participating in deliberations, or voting upon or otherwise transacting the public business.” G.S. 143-318.10(d). If there is an official meeting, the public body must provide proper notice of the meeting and allow the public to attend unless an exception authorizes the body to meet in a closed session. 

In our scenario, the council is essentially holding a discussion of town business outside of the public eye. While it is true that an exchange of emails, strictly speaking, is not “simultaneous,” it may be close enough that a court would find it to be an official meeting within the meaning of the open meetings law. We do not have an appellate court opinion here in North Carolina, but courts in some other states have reached such a conclusion, and League and School of Government attorneys believe it likely that our courts would do the same. 

Luckily, as a practical matter, it is fairly easy to minimize this risk. Key to the open meetings analysis is whether a majority of the members of the public body are participating in the communication. Municipal officials can and should train themselves not to use the “reply all” function with emails involving the members of the public body. With this simple understanding and change in email habits, officials can avoid triggering the majority-participation part of the “official meeting” test. Of course, email will still be subject to public records requests, but without the added concern of a potential open meetings law violation. 

While at the Essentials of Municipal Government session in Asheville, I happened upon a small shop with a wall of humorous bumper stickers. I felt drawn to purchase one that reads: “Nothing Good Comes From Hitting Reply All.” I think that is a wise reminder for local government officials and probably a good philosophy for us all.