August 9, 2011 • Vol. XXXV • No. 5
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Public Officials’ Use of Email Comes Under Scrutiny

Over the last week, the use of email by public officials to conduct official business was criticized by both a Superior Court judge and a county prosecutor.

One instance occurred in Burlington County, the other in Bergen County. Both involved municipal officials, but have ramifications for board of education members as well.

Prosecutor’s Guidance  The Burlington County Prosecutor’s office determined that Evesham Township officials unwittingly violated New Jersey’s Sunshine Law by a string of emails discussing the township’s business.  In a letter written last week, County Prosecutor Robert D. Bernardi said that discussions of an ordinance involving a helicopter landing pad should have taken place at a public meeting, as the Prosecutor’s Office believes the use of emails and other electronic communication such as text messaging and instant messaging are “meetings” under the Open Public Meetings Act (OPMA).  The case involved a string of emails over a 20-hour period involving all five council members and other public officials.

Bernardi said the emails “represent an active dialogue between members of council that sometimes occurs in almost real time. If these discussions had occurred in person, no one could reasonably dispute a violation of the OPMA had occurred.”

However, Bernardi declined to press charges, opting instead to warn and educate officials about the misuse of emails and texts to debate town issues. “In my view, educating public officials who may have mistakenly violated the provisions of the statute is far more effective than the imposition of nominal fines,” Bernardi said in his letter to the township.

Indicating that the township needs to develop guidelines for the use of emails among elected officials to share with the League of Municipalities and others, the Prosecutor made several recommendations. The recommendations include:

  • Emails involving discussion of township business should not include an effective majority.
  • Where an email includes an effective majority, the communication should not include any request for a response, but should in fact discourage email replies. In the rare cases where a response to an email is necessary, the reply must not involve deliberative or decision-making functions of the governing body.
  • "'Rolling’ email conversations must also be avoided,” the prosecutor’s opinion said. “A ‘rolling’ email occurs when one member of the governing body or a third party contacts other members via email individually to successively discuss or gain opinions on an item of township business.”

Private Email Questioned  Also, in a Bergen County Superior Court matter brought against the Borough of Woodcliff Lake primarily for public records violations, a resident also alleged that planning board members who held meetings via their private email accounts were conducting public business in a “secluded process” in violation of the Open Public Meetings Act, also known as the Sunshine Law. 

Judge Peter E. Doyne did not rule on this specific allegation because the planning board had not been named as a party to the proceeding. However, the judge did note that the “practice of utilizing private emails to conduct public business appears highly questionable.” Further, in a footnote the judge advised that the borough attorney agreed to distribute a memorandum to all relevant borough employees to reiterate the position that private emails are an unacceptable means of conducting borough business.

These recent pronouncements on the use of email rely on interpretations of the state’s Sunshine Law, which does not explicitly speak to the use of email. Although the opinions are not binding on public officials or school board members throughout the state, they highlight the concerns with the appropriate use of email by public officials. 

NJSBA encourages boards of education and to consult with their board attorneys for guidance adopting policies on the appropriate use of email to avoid running afoul of the Sunshine Law. School boards can also contact Lisa Deon of NJSBA’s Legal and Policy Department at (609) 278-5222 for additional policy services.

 

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