City officials in Texas may be interested to know that at least one state has adopted a reasonable interpretation of casual e-mail exchanges between members of a governmental body.  Last October, the Florida Supreme Court issued its opinion in Sarasota Citizens for Responsible Government v. City of Sarasota.  The case was brought by a citizens’ group that opposed the issuance of bonds by the city and county to construct facilities to lure the Baltimore Orioles to Sarasota for spring training.

In the case, e-mails from constituents to members of a board of commissioners were copied to other members and sometimes led to comments between board members regarding the topic of bringing the Orioles to Sarasota. The last such e-mail exchange, which allegedly violated the Florida Open Meetings Act (known as the “Sunshine Law”), occurred on April 12, 2009. However, the board conducted multiple public meetings subsequent to that April 12 exchange where the topic of Orioles spring training was discussed and considered.  Ultimately, on July 22, the board held a properly-noticed public hearing and approved the deal after a multi-hour discussion. In fact, representatives of Citizens for Responsible Government spoke at that July 22 hearing, as well as at prior meetings.

Rather than focus on the technical definition in the Sunshine Law, the Court concluded that no violation occurred because the board took independent, final action in the sunshine regarding the issue.  According to the Court, “[t]his simply is not the case of a ‘ceremonial acceptance of secret actions [or] merely a perfunctory ratification of secret decisions at a later meeting open to the public’…Therefore, any possible e-mail violations were cured.”

The case does not have precedential value in Texas, and it should not be relied upon here.  In Texas, a governing body that has any discussion whatsoever about public business or policy through exchanged e-mails would likely violate the Texas Open Meetings Act (TOMA) by participating in a “meeting” that is not open to the public. 

That is why the League continues to advise caution with e-mail communications between members of a governing body.  If members communicate with one another outside of a meeting – whether to simply share information or to decide whether to place an item on a future agenda, and then take action in the future on the topic they discussed – a prosecutor might infer that a meeting of the minds occurred prior to the meeting.   At least in Florida, city officials need not worry about inadvertent violations quite so much as local government leaders in Texas.

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