One for the books, but questions still linger

Does use of e-mail by several members of a local governmental body ever constitute an impermissible electronic meeting? Two years after the Fredericksburg e-mail case started as a feud among political rivals, the Virginia Supreme Court weighed in on the issue, but its March 5 opinion in Beck v. Shelton never really answered the question.

There was no electronic meeting in this case, the court said, but it also left open the door to the possibility that some uses of e-mail might run afoul of the Freedom of Information Act’s prohibition of electronic meetings at the local level.

At issue were a series of e-mail messages exchanged among then-Mayor Bill Beck, Vice Mayor Scott Howson and three councilmembers-elect. The group discussed the possible appointment of an individual to the library board; the discussion revealed that the individual was not a city resident, so she was removed from consideration.

Former councilmember Gordon Shelton and two political allies filed suit in Fredericksburg Circuit Court alleging that the e-mail exchange amounted to a meeting. Judge John Scott agreed in a December 2002 ruling. Scott said a meeting had taken place because the messages were used to build consensus on a matter of public business.

The Supreme Court reversed, focusing on the time frame in which the e-mails were exchanged. The court said the e-mails — which ranged in send-and-response time from four hours to two days — “did not involve virtually simultaneous interaction,” but were instead more like letters sent through mail, courier or fax, and so could not be construed as being a meeting.

The court also relied on the physical setting in which the e-mails were exchanged. The court looked to the dictionary definition of “assemble,” a word used as part of the description of meetings in FOIA §2.2-3701. Meaning “to bring together,” and deriving from the Latin word simul, for “together, at the same time,” the court found the term “inherently entails the quality of simultaneity.” Without this quality, the exchange of e-mails was not a meeting in this case.

The court acknowledged that simultaneity “may be present” when technology is used in a chat room or through instant messaging. And the court left open the possibility that some e-mail exchanges could be meetings when they are not “the functional equivalent” of letters sent by mail, courier or fax.

The Virginia Municipal League and the Virginia Association of Counties were quick not only to praise the ruling, but to issue guidance to their members that was both more definitive and more narrow than the court’s ruling.

On its Web site, VML advised that e-mails may be used “so long as they are not being rapidly fired back and forth among the members of council.” Furthermore, neither e-mail nor any other correspondence should be used “as a means to reach decisions on matters the council faces.”

In its March newsletter, VACo cautioned local officials “that when using electronic communications if a time is pre-arranged for discussing a topic electronically the situation may be considered a meeting.”

As a post-script to the court’s ruling, Bill Beck was defeated in the city’s May election, and the e-mail archive created by the Fredericksburg City Council Clerk Debbie Naggs, has yet to be utilized by anyone.

“All that money. All that time. All that hoopla,” says Naggs. “It’s been well-publicized, and the council members have been awesome about complying with it, but no one has asked for a single e-mail.”

Faced with another voluminous request for e-mails from Patrick Timpone, one of Shelton’s colleagues, Naggs decided last summer to create the archive system, rather than continually having to sort through each e-mail to determine which ones were public record and which ones were personal or private, such as announcements.

With the archive in place, council members make the determination of what is a public record and forward those e-mail messages immediately to Naggs for archiving. Naggs says she has already instructed the incoming councilmembers of the process.

“I didn’t exactly give them a ‘maybe,’” says Naggs. “I told them it was mandatory.”

Despite the apparent lack of interest in the e-mail archive, Naggs says she is proud of the system.

“It’s a great thing,” she says. “I would recommend it across the state.”

— Megan Rhyne