|
It’s
normally easy to know if a quorum exists at a public
meeting. You
count who’s there. A
quorum is usually a majority of members. When a
council has seven members, four is a quorum. If four are present, there is a quorum and the
council can then transact business.
But
if a new law is passed, it will be more
difficult to know when quorums exist. Two
bills* now before the General Assembly introduce,
without explanation, a new concept in how members
can attend meetings: they can monitor them.
The
new concept is tucked into a provision saying
minutes for electronic meetings must identify those
at the central location, those at remote locations
listed on the meeting notice, and those monitoring.
Staff at the Freedom of Information Council
have previously opined that members may listen to a
meeting electronically without violating FOIA as
long as they don’t participate.
This new provision implies that members not
at the locations on the meeting notice will not
violate FOIA if they don’t participate, if they
are only “monitoring.”
The provision is just thrown in as if
monitoring meetings is a perfectly normal thing for
members to do, so normal that it doesn’t need
explanation.
The
problem is that we don’t know how monitoring
affects the counting of quorums and majorities.
Monitoring members aren’t really present
but they aren’t really absent either.
If their presence as monitors is to be noted
in minutes, then in some sense they are present.
They just aren’t supposed to participate.
Although only state public bodies can have
electronic meetings under current law, members of
local public bodies could also “monitor”
meetings if the FOI Council’s interpretation is
verified by the new provision.
Members of state bodies likewise could
“monitor” their regular non-electronic meetings.
When
the FOI Council met in December, one member
“monitored.” It
was not an electronic meeting but a regular one like
any public body could have. Here’s how the
attendance was listed in the minutes:
Council
members Houck, Griffith, Bryan, Fifer, Miller,
Moncure, and Wiley were present. Council members
Axselle, Edwards, Hallock, and Yelich were absent.
Mr. Hopkins monitored the meeting by telephone.
Mr.
Hopkins is not in the list of those present nor in
the list of those absent.
The
crunch comes when it’s important to know if a
quorum exists. Suppose
three members of a seven-member council meet and a
fourth “monitors.”
Is there a quorum?
If the three members vote, is the vote valid?
Is a quorum determined by the presence of a certain
number of members or by the presence of a certain
number able to vote? Monitoring
members may be restricted from voting, but do they
count in determining a quorum?
Are they present or absent?
Then
suppose two members of a public body decide to get
together to discuss public business and other
members “monitor.”
Is that a meeting that would come under FOIA
requirements? Or
could they meet privately as long as only two talk
and the others just monitor? “Monitoring” is
undefined—maybe it refers just to monitoring by
phone or other means but maybe it refers to any
situation in which a member listens.
For
some public bodies, a plurality of a vote does not
suffice; a motion passes only when a majority of
members present vote in favor of it.
Suppose five members of a seven-member board
are meeting while two others monitor and a vote is
3-2. If the monitoring members are supposed to be
considered present, then the three affirmative votes
do not make a majority. The motion fails.
If the monitoring members are supposed to be
considered absent, the motion passes.
We
just don’t know how monitoring by members is
supposed to affect public meetings.
Up to now it hasn’t been mentioned in the
law at all. If
SB711 or SB1196 goes through without explanation of
how monitoring is supposed to work, then courts will
have to sort it all out.
Meanwhile we won’t know if a monitoring
member counts in determining a quorum and whether
certain votes are valid or not.
The
definition of meeting has been based on the idea of
assemblage: If a public body is meeting as an entity
or as an assemblage of three or more members. Mere
presence together makes a meeting. Another provision
then limits FOIA’s coverage to meetings
prearranged to discuss or transact public business. That
provision describes the meetings, not the
members. If the meeting has been
prearranged for discussion of public business and
there is a meeting (under the definition, an
assemblage of a certain number of members) in which
public business is discussed, then it's covered
under FOIA, no matter how many members at
it actually discuss public business. The new
provision on monitoring would change the meaning
of meeting. Instead of counting members
present, we’d be counting members participating.
The
provision assumes that monitoring isn't
participation. However, listening is a form of
participation. If members are among those
assembled and they are listening, they should be
considered to be participating in the meeting. We
should not accommodate the idea that
"monitoring" a meeting is an acceptable
way to get around FOIA's restrictions. If the
restrictions are too harsh, change them. But let's
not change the basic understanding of what a meeting
is.
By
the way, staff and citizens may participate in
regular meetings—state or local—electronically,
if the public body invites such participation.
For example, it’s not an “electronic
meeting” if the city council’s attorney
addresses council over a speakerphone.
The only ones prohibited from participating
electronically in a council meeting are the
councilmen, the very people we elect to represent
us. If they
are unable to attend the meeting in person, tough
luck. Their constituents simply won’t be
represented.
--
February 14, 2005
*SB711
(FOI Council version) and SB1196
(JCOTS version).
Another bill HB2760 introduced by Del. Gary
Reese allowing local public bodies to have
electronic meetings has been tabled for further
study by FOI Council.
|
