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Local Governments and School Districts Blog

Beware of Governmental E-mail Meetings

Authored by Ruder Ware Attorneys
Posted on January 6, 2016
Filed under Local Governments and School Districts

A Wisconsin circuit court recently suspended proceedings against former city council members for violating Wisconsin’s Open Meetings Law.  The individuals were accused of conducting governmental business during their prior term of office through e-mail communications between themselves.  The e-mails directly suggested that the city council reconsider its vote on a zoning matter that had just been voted on by the council.  Notably, those same e-mails were copied to other city council members, enough in number to constitute a majority of the total body when counting those copied and those sending the e-mail exchanges. 

Wisconsin’s Open Meetings Law requires that all meetings of local governmental bodies shall be publicly held in places reasonably accessible to members of the public unless otherwise expressly provided by law.  A “meeting” is defined as the convening of members of a governmental body for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body.  The Wisconsin Attorney General has concluded that the phrase “convening of members” is not limited to situations in which members of a body are simultaneously gathered in the same location, but may also include other situations in which members are able to effectively communicate with each other and to exercise the authority vested in the body, including telephone conference calls, e-mail, and instant messaging, depending upon how the communication medium is used.  Schimel, “Wisconsin Open Meetings Law Compliance Guide,” pgs. 9-10 (November, 2015).

The former council members no longer held public office and stated their desire to avoid further civil litigation.  The circuit court signed an order to suspend the proceedings, and later dismiss, on the condition that no further similar allegations are brought against the same former city council members within a six-month period.  Each of the former council members were facing potential personal fines of between $25 and $300, plus court costs.

It is not entirely clear whether the above factual scenario would have resulted in a judicial finding of a violation of Wisconsin’s Open Meetings Law.  It is noteworthy from the Wisconsin Attorney General’s Office that because electronic mail creates the risk it will be used to carry on private debate on matters that belong in the public meetings, the AG “strongly discourages” members of governmental bodies from using e-mail to communicate about issues within the body’s realm of authority.  Id., at pg. 11. 

The above situation provides a good reminder to members of local governmental bodies and formally constituted subunits of those bodies to avoid communications via e-mail between members subjects within the body’s jurisdiction and authority.  In addition, if e-mails on such subjects are sent, one way to safely communicate is to send the e-mail to a recipient with the originator stating that any replies shall be only to the originator and with instructions to not forward replies to other members of the body or subunit.