A “reply all” email among public officials has led to a warning from prosecutors about Brown Act violations and serves as a reminder to keep open meeting laws in mind when talking online. A Southern California District Attorney’s Office issued the warning earlier this month to a local Housing Authority after finding that its governing board violated the Brown Act’s open meeting requirement when commissioners used the reply all button to respond to emails, creating a de facto serial meeting.
The emails focused on the contested appointment of a commissioner. Seven commissioners replied to an email asking for the panel’s recommended course of action on the plan to appoint her and two commissioners hit “reply all,” effectively sending their opinions to 11 other commissioners. The DA’s office determined the actions constituted a serial meeting, a functional poll of a majority of the commissioners outside of a public meeting to seek consensus on an issue.
The emails in question here created two potential pitfalls any public agency might fall into, and that all public officials should take pains to avoid. The initial email asking for the recommended course of action could have created a “hub and spoke” serial meeting, where its sender was functionally trying to poll the entire Commission outside a meeting, acting as a hub of information with each response creating a spoke that would amount to a serial meeting. The reply all responses create links in a chain serial meeting, wherein every member of the Commission is pulled into the discussion and made aware of the thought processes of the others. Under either scenario, the initial email or the “reply all” emails created prohibited “collective deliberation” in violation of the Brown Act. Both of these actions should have taken place at a publicly noticed meeting, and this is the sort of Brown Act mistake that is increasingly easy to make in a digitized world.
Communications on issues within the subject matter jurisdiction of a legislative body must take place at open, publicly noticed meetings. By hitting reply all on an email, a public official can unwittingly create a functional meeting among every recipient. Similar situations can arise in the comment threads on blogs or Facebook posts, where one public official may express his or her opinion on an issue of importance to their agency, only to create a functional discussion on the issue outside the bounds of a properly noticed public meeting when other members of the legislative body chime in with their own thoughts. Care must be taken to ensure all public officials are aware of the full potential audience of their communications and that those missives comply with the Brown Act’s requirements.
