Missoula City Council’s Email Mess

By Emily Darrell, 10-01-07

	Caption: These notes, attached to Councilman John Hendrickson's laptop during Thursday morning's Public Health and Safety Committee meeting, were written in response to emails sent during City Council meetings. An email sent by Marilyn Marler criticized Hendrickson for "giving a sermon," and one from her husband referred to council members as "morons." Photo by Emily Darrell.

In the Missoula City Council there has been recent friction over some members emailing each other, and others, during meetings. The content of the email communications have varied widely, from refuting public testimony and deriding other Council members to jokes, quips, and personal messages to family or friends.

Laptops made their way into council chambers as a way to quickly retrieve documents and to cut back on paperwork. But some members of the council claim that the emailing of messages relating to agenda items excludes the public from its right to participate and violates open meeting laws. The email messages are, typically, a matter of public record and can be obtained by making a request to Marty Rehbein, the City Clerk. (To download the City Council email correspondences from August and part of September, click here.)

According to Helena-based attorney Mike Meloy of the Montana Freedom of Information (FOI) Hotline, the Montana constitution ensures that all citizens have the right to observe the deliberations of governmental bodies.

Meloy believes that if the case of the emails were to come before the State Supreme Court it would be ruled that the use of emailing by members during meetings would be deemed unconstitutional unless the emails were simultaneously broadcast for public viewing, not only, as is the currently the case, available after the meeting and only by special request.

“We’d never be able to completely eliminate those communications made by a few committee members to avoid open meeting laws,” Meloy said—officials can just as easily flout laws by deliberating during a restroom break as they can over email.

However, by all legal standards, Meloy stipulated: “The communication needs to be open or they shouldn’t do it.”

Jim Nugent the Missoula City Attorney said he believes it is up to council members to decide what is the fair and proper way to use email during a meeting. “I’m not going to try to monitor the emails or be the watchdog on this. It’s up to them to use judgement.”

Nugent said that not all emails are available to the public, including those containing certain personal information like health records or social security numbers and those sent on private email accounts. While Nugent says that there is concern over council member abusing email privileges, he said the public does have the opportunity for redress if they feel they were excluded from commenting on, or hearing comment on, a particular decision. If a decision is made in council and a citizen feels that he or she was excluded from participation, a suit can be filed within 30 days to have any decision voided.

Nugent doesn’t believe that recent complaints over the emails warrants taking away council members laptops or restricting their Internet access. “We’re not going to go into a caveman mentality over this,” Nugent said. “This is modern technology.” He said that computers have greatly increased the ability of council members to easily reference documents and other information they need.

The root of the confusion on how and when email should be used in public meetings is the lack of law or precedent on the issue. The Montana open meeting laws, drafted in 1972, have not been updated to address issues of the digital age.

The use of the Internet is not limited to city government. The Montana state legislature also uses laptops during their meetings. Back in February there was a bit of a fuss over the use of emailing and text messaging concerning freshman House member Kendall Van Dyk (D-Billings.) During a meeting of the Natural Resources Committee Van Dyk sent an email message containing a “technical question” to the Blackberry of an agency staffer who was to be deliver testimony later in the meeting. This angered the committee chairman, who later banned laptops from all Natural Resource Committee meetings. Van Dyk said, “I [still] use my laptop in all my other committees,” and he thinks the objection to the use of email and text messaging is largely a “generational thing.”

“Some of these people have to make the leap,” he said.

He said that if the legislature were to ban computers or Internet at meetings he would comply, but said that his laptop helps him take better notes.

He also abides by a certain policy: “Don’t write anything in an email that you wouldn’t want to see on the front page of the New York Times the next day.”

This story was updated October 2 to include the opinions of Mike Meloy.