I’ve written before about electronic meetings, and I’ll probably write about them in the future. But I’m writing about them today because I just spent three hours in a meeting to talk about e-meetings, and I’ve left there vexed.
First, a bit of background about how and why we have the rules that we do for electronic meetings.
The short version is that a number of years back, there was an attempt to give government some flexibility to use electronic methods to meet without hampering the public’s right to observe their government. The original e-meeting rules applied only to state agencies and required 30 days notice.
Those requirements were pretty onerous, so the FOIA Council created a subcommittee to review how the rules might be relaxed. The subcommittee came up with a recommendation, which was eventually passed by the General Assembly and enacted into law, that greatly relaxed the notice period to three days and otherwise loosened the procedures and reporting requirements. The rules applied only to state agencies, though. Local and regional bodies could not meet by electronic means at all.
Another few years passed and there was interest in giving localities some flexibility. And so the FOIA Council convened another subcommittee, which again recommended legislation that was passed by the General Assembly. These new rules provided a mechanism for local governments to meet electronically when there was a personal emergency or when a member suffered a temporary or permanent disability. And regional public body members were given some leeway for when they have to travel a certain distance or more to the meeting site.
These subcommittee meetings were the roll-up-your-sleeve kinds of affairs where stakeholders laid out their issues and problems, and where questions got asked and assumptions got prodded. Language was proposed, massaged, discarded, rearranged. The end product was one that was mutually agreed upon -- no one got all of what they wanted, but everyone got a little something, including the knowledge that they had worked together for the good of the Commonwealth.
A major assumption underlies all of the electronic meeting rules and subsequent amendments: face to face meetings are preferred over electronic communication.
And certain policy decisions currently flow from that assumption:
-- whenever there is an electronic meeting, a quorum of the public body’s membership should still be physically assembled at the primary meeting site.
-- the number of meetings held electronically should be limited so that not ALL meetings are electronic.
Which brings me to the current subcommittee, which is studying a bill proposed this session from Del. Tag Greason (R-Landsdowne), which relaxes e-meeting rules even further for state agencies, and one from Del. Mark Dudenhefer (R-Stafford), which simply eliminates any differences between the rules for state and local agencies.
A reminder here is important, too: these bills were referred to the council by the General Assembly at least in part because there was enough concern about them that a fuller vetting than what could be accomplished during the session was warranted. When bills are referred to the FOIA Council, there is no obligation that they be taken up (a) in their entirety as written, or (b) at all.
At any rate, at the meeting Wednesday, representatives from state government discussed their experiences with using electronic meetings. Some expressed difficulties, some did not. Few thought the quorum issue was a problem. The FOIA Council’s report on 307 state agency electronic meetings included just one comment about the quorum.
Then representatives from local government spoke about what their members have told them. Some did say they had a problem convening a meeting because they couldn’t get a quorum, and that they might have been able to have a quorum if they’d been allowed to meet electronically. On the other hand, some said they had no difficulty scheduling meetings or forming a quorum.
The lack of e-meeting flexibility was blamed for the inability to recruit qualified people to run for office and for taking short cuts and making bad decisions.
I disagreed with a lot of what was said, and I said so. Even without my comments, though, there was not a consensus about (a) whether there was a problem, and (b) what the problems were.
Nonetheless, the subcommittee parsed the Greason bill section by section, deciding whether to pursue or jettison each one.
So, poof, there went the requirement that a quorum of the state public body be assembled in one place. The subcommittee members did say they didn’t think only one person should be in the primary meeting site, but they could not decide whether there should be two or three or some other number.
When the Dudenhefer bill was taken up (to give locals the same rights as state agencies), it was confirmed that yes, if the rules for local bodies were going to be the same as for both, then local bodies would now be able to meet electronically without having a quorum at the primary meeting site.
In just a few strokes of a pen, local bodies will go from not being able to meet electronically except for in personal emergency situations, but with a quorum still assembled, to being able to meet electronically any time they want AND without a quorum in one place.
I’m very concerned about the path being taken. Though there was little clamor to change the rules on quorum, that’s what is happening. Though there has been a stated preference for face to face, the rules are being changed to make it more easier for members to avoid the public and each other.
Where is this leading? Will one or two members of the city council be in the council chamber, while the others are spread about the city (state, country or world), where the public has no ability to see whether they are paying attention or who may be in the room with them, possibly trying to exert undue influence?
When the quorum requirement is met only via electronic means, will the public body be able to effectively ignore the public, physically, that is? Remember that part of a public meeting is for the public body to see the public: who is there, who are allies, who are opponents, who is affected. If everything can be done on the road, from home, on vacation, the public body can become detached from the public it serves.
Staff for the FOIA Council will be working up a draft to try to put flesh on the concepts, and that will be circulated, commented on and eventually presented to the full council. Maybe some of my fears will be allayed.
If not, I sincerely hope that the subcommittee (and eventually the Council) will slow down, step back and really take the time to debate and consider what the problems (if any) are and how the public will be impacted. The current law is the product of careful, thoughtful and respectful give and take. Any new law should be, too.