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VA Court To Review "Official" Email Rules 102

Posted by Unknown Lamer
from the instant-messaging-considered-seditious dept.
imac.usr writes "The Virginia Supreme Court will hear arguments today on a case brought by a Fairfax County resident alleging that the county's school board members violated the state's Freedom of Information Act. The suit alleges that board members colluded to close an elementary school in the county through rapid exchange of emails with each other. The state's FOIA rules stipulate that such exchanges can not constitute 'virtually simultaneous interaction' and that any assemblage of three or more members constitutes a formal meeting which must be announced. The article notes similar suits are popping up across the country, highlighting one of the difficulties governments face in balancing communication with transparency."
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VA Court To Review "Official" Email Rules

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  • difficulties? (Score:4, Insightful)

    by Anonymous Coward on Monday April 16, 2012 @12:03PM (#39701381)

    "any assemblage of three or more members constitutes a formal meeting which must be announced."

    Sounds like simply following the rules would work best.

  • by davidwr (791652) on Monday April 16, 2012 @12:07PM (#39701419) Homepage Journal

    OK fine, I'll check my email from 8-8:30AM and 12-12:30PM, my fellow board member will check his mail from 9-9:30AM and 1-1:30PM, and so on so we have at least two "round robins" per day.

    By the end of the week we'll accomplish what would've taken half an hour, but it will be in secret and nobody will be the wiser.

    • By the end of the week we'll accomplish what would've taken half an hour, but it will be in secret and nobody will be the wiser.

      Except that there will be a written record of 100% of the entire discussion.

      Frankly, I fail to see the problem here. As long as record are kept, these email discussions are even better than having minutes of meetings from a public transparency perspective. Of course, it all involves the public actually having access to the emails, so there's probably an issue there.

      • by jmauro (32523) on Monday April 16, 2012 @12:37PM (#39701727)

        The issue is that meetings should be public so the public can know what's being discussed, can be there to watch, and be able comment on the proceedings since the board members actually you know work for the public. Doing the meeting via email does keep a paper trail, but it doesn't allow the public to weigh in on the decision. That is the issue.

        • by jader3rd (2222716)

          The issue is that meetings should be public so the public can know what's being discussed, can be there to watch, and be able comment on the proceedings

          I think that this is one of the reasons why people find government to be so slow. Personally, I kind of wish that government behaved faster, and was able to solve problems with more efficiency. By having the paper trail (of the emails) the public can look at what was decided, and then re-elect/remove the officials as needed. By not having every single last interest group gumming up the works, the public officials might actually get something done. Do I want public officials to run around unbound? No. But by

          • by jmauro (32523) on Monday April 16, 2012 @01:35PM (#39702403)

            What you'll find though is the well connected interest groups would then rule the roost and pretty much run roughshod over everyone else, all so the connected groups can make the most profit at the expense of everyone else. And by the next election it's usually too late to overturn the decisions (and if it's really controversial they'll just run someone else who'll keep the machinery flowing to the right connected parties.)

            We tried the closed meetings, get things done way before and it was so bad laws like the Open Meetings and Sunshine laws since keeping things secret and getting things done led to things like general corruption and machines like Tammany Hall. Having everyone gum up the works (i.e. having all sides voices heard) is a feature of the system, not a bug.

          • by Culture20 (968837)

            I kind of wish that government behaved faster, and was able to solve problems with more efficiency.

            If you let them move fast enough, you won't be sure if you're the latest problem they're trying to solve until it's too late. Gridlock is good.

        • by gmack (197796)

          They could just use a mailing list for public meetings and have people comment that way.

          • by cuog (1082549)
            I think most of the comments you'd actually get would be offers for discount viagra, and various other wonderful bits of spam.
    • by itsdapead (734413)

      OK fine, I'll check my email from 8-8:30AM and 12-12:30PM, my fellow board member will check his mail from 9-9:30AM and 1-1:30PM, and so on so we have at least two "round robins" per day.

      Or just do it over the phone... and its less likely to get recorded somewhere. Or use a really fast bike courier. Or a pigeon. Or hold a good old-fangled restroom meeting.

      I assume those would be just as illegal, because having different rules just because you're using email would be nuts. On the other hand, institutions have never seen a need to append recorded messages to phone calls or stamp disclaimers on outgoing mail, lest someone receive the message in error or think that the message was the officia

    • by PPH (736903)

      Why not have a few friendly games of golf? You can discuss the same things, there will be no written record and you can charge your club membership to the city.

  • The fix was in. (Score:5, Interesting)

    by mbone (558574) on Monday April 16, 2012 @12:09PM (#39701433)

    As it happens, my son went to Clifton Elementary, and the fix was definitely in on its closures. The pretty solid feeling against closure on the part of the Clifton Community was ignored, and a lot of people in the town feel railroaded. (The presumption is that some real estate developer wants the prime real estate the school sits on, and spread enough money around to make it happen.)

    • Re: (Score:3, Insightful)

      by cpu6502 (1960974)

      The politicians knew what they were doing. Making decisions behind closed doors so the public could not object..... similar to how Congress passed the NDAA during the holidays when the public was distracted, and the president signed it on New Year's Eve.

      • Which "NDAA"? (Score:5, Insightful)

        by daveschroeder (516195) * on Monday April 16, 2012 @12:28PM (#39701643)

        You mean the National Defense Authorization Act, which is the entire federal defense budget, and of which there is one every single fiscal year, is always passed around the same time, and which always has controversial provisions because they're easy to stick into a defense spending bill?

        Oh, you mean the National Defense Authorization Act for fiscal year 2012, which had a total of about two controversial sentences out of hundreds of pages, clearly codifying what has been standard practice for persons identified as enemy combatants at Guantanamo Bay for several years?

        The one that people thought was some kind of a "secret plot" to indefinitely imprison random American citizens in military custody without trial, even though the wording says persons must be a "part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners"?

        That NDAA? Oh. Yeah. Completely and totally unrelated. But nice try bringing something like military detention provisions into a story about a local school board's email communications!

        • Re:Which "NDAA"? (Score:4, Informative)

          by Anonymous Coward on Monday April 16, 2012 @12:45PM (#39701781)

          And since there is no due process of any kind, no one has to show that an undesirable is "part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners." So that claim that the government can indefinitely imprison random American citizens in military custody without trial remains valid.

          • Re:Which "NDAA"? (Score:4, Interesting)

            by KiahZero (610862) on Monday April 16, 2012 @02:01PM (#39702703)

            There isn't a trial (in the sense of adjudicating guilt or innocence) but there is initial and triennial judicial review of the detention, so it would be rather difficult to imprison random Americans under this authority (unless you're assuming falsification of evidence like birth records, in which case there's not a damn thing that can stop the imprisonment of anyone).

          • by StikyPad (445176)

            Well, there's process, and all the parts of the government agreed that it was due even if it's not the same process that occurs in the criminal justice system. And while I concede that there's something fundamentally wrong with different "parts" of the same body determining whether its own actions are proper, that's true for all issues, and most people are probably in favor of detaining accused terrorists or sympathizers indefinitely, so it's hard to think of a better method aside from the fictional benevo

        • by tomkost (944194)
          So if the govt violated the constitution in other ways like started searching houses for "contraband" anytime it felt like it, and then later codified that into law, you'd be ok with that too??? I agree with the rest of your post, but line 2 is very bad argument.
          • This assumes that detaining (in military custody) persons who have taken up arms against the United States and have been identified as enemy combatants violates the Constitution. I submit it does not. Others, including yourself, may disagree. The military detention provision was designed to clear up this issue, and I'm not saying it is without controversy.

    • Re:The fix was in. (Score:4, Insightful)

      by dkleinsc (563838) on Monday April 16, 2012 @12:16PM (#39701517) Homepage

      The presumption is that some real estate developer wants the prime real estate the school sits on, and spread enough money around to make it happen.

      So I assume the bribery investigation will be coming soon? I grant you, if you investigated public officials for taking bribes, there wouldn't be many left in office, but still ...

      • Re:The fix was in. (Score:4, Insightful)

        by arth1 (260657) on Monday April 16, 2012 @12:28PM (#39701641) Homepage Journal

        Bribes? Surely such a thing does not exist in 'Tis of Thee!
        Only legal contributions made from the goodness of the corporate heart, with absolutely no unspoken expectations attached.

        Likewise I am sure that these fine gentlemen and gentlewomen never tried to circumvent regulation, and never used e-mail to assemble and reach a quick resolution behind the back of the public.
        Perish the thought! How unpatriotic to even suggest it!

      • by mbone (558574)

        Who said anything about bribes? I would assume everything is at least nominally legal; that's how it is generally done.

    • Re:The fix was in. (Score:4, Interesting)

      by darkmeridian (119044) <.william.chuang. .at. .gmail.com.> on Monday April 16, 2012 @12:41PM (#39701747) Homepage

      Yep. One unanswered question is whether or not the emails and electronic exchanges were logged using official servers. Sarah Palin allegedly used her personal email account to discuss state business outside the scrutiny of disclosure laws. Closing down a bunch of schools without a public hearing per se over unlogged email exchanges would be contrary to good, transparent government.

    • Of course the community was against it, many small communities use their local school as community halls, and associate their school with their Local Smalltown Values Education(tm) that Big Bad City Schools(tm) couldn't possibly provide, that in itself is not a good enough reason to stop the closure.

      The job of a public school board is to balance the needs of all it's constituents, and in many cases that means sacrificing smaller schools in order to provide a better level of funding and quality of education
      • Bribery comes in many forms. If there is a possible buyer for the property which will fill a shortfall gap in funding (even if it's only a years worth) and they can avoid a tax increase, that's basically a re-election guarantee for all the people screaming their taxes are too high.

        Last year, our board of supervisors voted to approve bonds to build two schools and renovate a third, even though it meant an unpopular increase of 12c in the real estate tax rate. Why? Well, it was going to be $25M+ to fix a scho

    • They were closing schools left right and center here (Canada) a few years ago (2006). The school board was also selling the land and keeping the money. I know, holy shit, right? They also spent a fortune doing earthquake upgrades and renovations on one school, then closed it and turned it into the school board offices. One of the schools that had already been torn down was turned into low-income housing, another became a for-profit post-secondary.

      Anyway, the provincial government stepped in and said, "Y

    • Re:The fix was in. (Score:4, Interesting)

      by Anonymous Coward on Monday April 16, 2012 @01:44PM (#39702501)

      I too live in the Clifton area. I recall that one of the biggest issues was the cost per child to renovate the building. Clifton housed about 300 students. The neighboring schools housed 600-900 each, with capacity to absorb the Clifton students. The District's budget has been pinched, like most local governments. It seemed to make more sense to mothball the school and redistribute the students. The building has been vacant nearly a year now, and the only offer to "purchase" has been from some former Clifton parents who what to turn it into a magnet school, at taxpayer expense. If the fix is in, who is benefiting? A lot of board members lost their seats, or chose not to run because of this issue, including the Springfield rep. I don't see her driving a new Ferrari.

  • by Quila (201335) on Monday April 16, 2012 @12:24PM (#39701605)

    difficulties governments face in balancing communication with transparency

    More like difficulties on how to arrange actions that affect the public without having to disclose them under FOIA. These bureaucrats long for the day they could impose their will on the people while leaving the people clueless, and they will work any angle on a FOIA law that they can in order to get it.

  • by JustAnotherIdiot (1980292) on Monday April 16, 2012 @12:27PM (#39701639)

    “Decisions were made, people created alliances, and people went into that meeting already knowing which way they were voting,” Hill said of the board’s e-mail about Clifton. “That’s not the way it’s supposed to work.”

    That's usually how votes go unless I'm mistaken.
    You don't go into a meeting to vote with a blank mind, you tend to already have your decision ready and thought out.

    • by sjames (1099)

      Except the meetings aren't just for the vote. The meeting is where the issue is supposed to be discussed to help everyone form an informed and thought out opinion.

    • by StikyPad (445176)

      Indeed, that's exactly how I do my jury voting. The whole "trial" part is such a tedious delay.

  • NOT transparency (Score:4, Informative)

    by tchdab1 (164848) on Monday April 16, 2012 @12:37PM (#39701715) Homepage

    There is no difficulty in balance here - it's a deliberate railroad move.
    These people are deliberately trying to avoid public scrutiny and do an end-run around their constituents.

  • In Massachusetts... (Score:5, Informative)

    by crow (16139) on Monday April 16, 2012 @12:37PM (#39701725) Homepage Journal

    The rules are different in each state. In Massachusetts, I serve on a town board (the Planning Board, but the rules are the same for all boards). The relevant law is called the Open Meeging Law. We're simply not allowed to express any opinion on a matter before the board with a quorum of the board outside of a public meeting. We can do things like send out the agenda and documents to be discussed, but we can't suggest a course of action. Further, all emails to and from board members concerning the board are public record, and are subject to FOIA requests.

    It's very frustrating not being able to do any business by email. It would be nice if email were allowed, provided that we used a list that was immediately available online on the town web site. On the other hand, I do see how this could make it harder for residents to have their input heard, and it could leave some board members who are not online much at a disadvantage.

    • by Anonymous Coward

      It should be pretty straightforward to get all the board members email accounts with the town/district and use these accounts for all official mail. For discussions, use a listserv that allowed self-registration (for reading, not sending to the list), plus auto-archive software such as Mhonarc [mhonarc.org]. Forget FOIA requests, anybody can access any of the emails any time they wish. I don't think this can replace meetings, which would still be used to hear public input and to vote, but it would speed some communicatio

      • by Zsub (1365549)

        (snip) I don't have any ideas about how to deal with the members who are not online much, of course.

        Make available computers to use specifically to browse the archives and related activities? Seems quite reasonable. Also attach a printer so they can print it all and study it at home.

    • How about a facebook page? I hear that's pretty transparent.. Good luck hiding anything there

    • On the other hand, I do see how this could make it harder for residents to have their input heard

      Allow residents to email the list. They get to speak at public meetings, so this seems like the obvious equivalent. Public libraries tend to provide free internet access that could be used for the purpose.

  • by jklovanc (1603149) on Monday April 16, 2012 @12:50PM (#39701841)

    I just love this quote;
    “Sometimes you have to compromise efficiency for getting the right outcome,” she said.
    As with many of these kinds of statements "right outcomes" could be more accurately replaced with "outcomes I agree with". I think it is very important to note that there is no allegation that the email conversation contained any coercion or improper behavior or that the actual outcome would have been any different if the conversation was done in public. The plaintiff just did not like the conversation not being "seen". The one interesting point was that a board member's opinion was changed. As with most "news" articles they do not go into what opinion was changed. Perhaps the board member thought a different school should be closed but was convinced otherwise. The outcome didn't change in that a school was closed.

    Requiring all interaction between three or more members of an elected body having to be announced and made public is just stupid. Does this mean that any time three members want to get together to discuss things as trivial as the design of a poster it must be a public meeting? Lets just grind all decision making process to a halt. The public votes for people and day to day decisions do not need public input; that is micro-management to the highest degree.

    Lets look at a couple of scenarios dealing with a discussion that require research to answer questions that arise during a discussion. The point being that every time a research question comes up discussion stops until re research is done. Say a discussion has 3 of these kinds of questions. By email a discussion like this may only take a couple of days followed by a public meeting where what was discussed is made public. If formal meetings are required the following would have to be taken into account;
    1. room availability
    2. People availability
    3. Requirement for notice
    It may only be possible to have such a meeting once a week. So instead of a conversation taking a week an a half it will take three weeks. Now do this for every discussion. Email also has big advantages over the spoken word; It can be re-read decreasing misunderstandings. It can be written then edited for clarification. It can be referred to when dealing with facts

    To the specific case, I do not see a difference between publishing the email conversations after the fact and sitting in a room while the conversation went on. Observer would have no input into the conversation so their presence would make no difference.The prohibition on using email during a meeting just causes people to go back to passing notes like they did before laptops were available.

    Slowing the wheels of government is great if you want to stop something from happening but it is a two edged sword. It also slows implementation of things one wants to happen. Do you want funding to re-build a playground that is becoming a safety hazard? You better plan on a couple of years of "open" meetings. I bet the same people who are complaining about lack of transparency are the same ones complaining about unresponsive and bureaucratic systems. You can't have it both ways. If you insist on open meetings on everything then everything will take longer. All this law means is that people will jump through hoops to stay legal but the decisions will be made the same way.

    • by sjames (1099)

      It does make a difference. Have the discussion in a public meeting with observers and the crooks on the board have to look at all of the people smiling as they picture them in a jail cell.

      It's also harder to erase the bad PR of a bunch of people watching you be a crook with spin than it is to divorce your image from a few lines of text in a long email chain.

      • by jklovanc (1603149)

        If they are crooks then why did you vote for them? If you didn't vote for them did you help their opposition or even run for office yourself? As they say; put up or shut up.

        If they are crooks do you really think you staring at them will make a difference? Might they just ignore you? If they are truly crooks and they are already planning to break the law do you think that another law will fix the issue? There is an old saying "locks only keep honest people out" which can be extended to "laws are only followe

        • by sjames (1099)

          Sometimes you can only recognize a crook by watching them in action. That works best when you get to watch them.

          It's only the following election where you get to vote the crooks you detected out, presuming there are any non-crooks running.

          As for me running myself, would you care to write me a check?

          Will the transcripts show ALL of the conversation? Can you know that since you weren't able to actually watch?

    • Does this mean that any time three members want to get together to discuss things as trivial as the design of a poster it must be a public meeting?

      Yes. In fact, if you and a few of the other board members happen to meet up at the local bar after a public session, and discuss what happened in the meeting or any work related to the entity to which you were elected, you could be in violation of your state's rules. The reason is so that these discussions and decisions are made in public view, considering tha

      • by jklovanc (1603149)

        I am not talking about what the law says; I am asking is the law reasonable? Do you have any idea how much public meetings cost in time and money? Have you ever seen a public meeting that was less than an hour long? Do you really want to spend thousands of dollars in advertising, security, clerical support, etc. every time a few hundred dollars is discussed? Do you want to delay every decision by months? Treating a thousand dollar issue the same way as a million dollar issue is just stupid. I agree there ne

        • A few points:

          - Most of the things discussed by the board, typically, were high-level things, like selecting architects for new buildings, or the budget, approving curricula, etc. Smaller things like designing posters wasn't a task for the board.

          - The cost of these meetings is less than $100; probably closer to $50. Board members are volunteers. The secretary gets a small stipend. Security and staff are there, anyway, so there's no extra cost. There's a small cart with soda and cookies, sometimes.
          • by jklovanc (1603149)

            Notice you said "most". By law, everything, no matter how minor, even is it is a subcommittee dealing with a minor issue, would require a public hearing. That is the problem with absolutes like "when ever 3 or more members talk". You have to agree that there are some issue where three or more board members talk that do not require a public audience.

            If you want to allow working people to participate in these proceedings then these meetings would have to be held after normal working hours which means that sta

            • It's not unreasonable for the board to have to convene to discuss issues before the board because the board doesn't decide -every- issue that goes on within the district: the superintendent on down takes care of a lot of day-to-day things. Our board typically met every two weeks because it took about that long to develop enough material to discuss at our regular meetings. Even then, a lot of things were routine matters: approval for expenditures, etc. Some months, especially in the summer, we'd meet only
    • You clearly have never seen the show Survivor. Elected bodies are some of the most catty, petty, and vindictive groups of people on this earth.

      • by jklovanc (1603149)

        Bad analogy; most board members are not trying to win large amounts of money by getting other board members kicked off.

      • OK, since when is a crappy TV show some sort of barometer of government? When did this happen? Seriously, are your horizons that small? A CBS reality show somehow provides God's Honest Truth in what way exactly? Your negation of representative government by this method frightens me. You right-wingers will be the death of us all.
        • by dkf (304284)

          OK, since when is a crappy TV show some sort of barometer of government?

          Have you ever watched C-SPAN?

    • by StikyPad (445176)

      Slowing the wheels of government is great if you want to stop something from happening but it is a two edged sword. It also slows implementation of things one wants to happen.

      Many people are content, even happy, to sacrifice what they want to ensure that people they disagree with don't get what they want. These people are often called "heroes," so it's no surprise that we see it everywhere.

      • by jklovanc (1603149)

        There is another term for them; petulant obstructionists. The colloquialism is "cutting of the nose to spite the face [wikipedia.org]".The point is that delaying all government decisions it not a good thing especially when the same people gripe that government moves to slowly..

        • by StikyPad (445176)

          I agree, but it's all about context and what side of the issue your on as to whether it's viewed spiteful obstruction or taking a heroic principled stand.

          But that aside, if we had an easier way to undo laws (or legislative decisions), I think people wouldn't be so concerned that laws are forever, good or bad. Perhaps a simple majority of citizens should be allowed to repeal any law at any (election) time. That would, I think, balance the interests of government and the public a bit better.

          • by StikyPad (445176)

            I can't believe I used your in place of you're. Consider me suitably self-chastised.

          • by jklovanc (1603149)

            I see nothing "heroic" about causing every decision to be delayed.

            Actually it does just take a simple majority; in the next election. The new legislature can repeal laws.

  • Some of these comments are absurd. Here in the real world, people need to discuss things in order to do their jobs. They might even need to discuss them with more then two people. That's how you come to an informed decision.

    Going by most of the comments here, we should lock up all the decision makers under house arrest where they can't communicate with anybody about anything unless it's at a public meeting, so that whatever whiny special interest group feels like complaining about what they're doing can be

    • by wmbetts (1306001)

      For a lot of issues they discuss I agree with you. There isn't a need to have a public discussion for every little thing they need to talk about. However, what they're talking about isn't a little issue. It's a major issue to that small town and deserves serious input from the community. How would you feel if the only elementary school in your town was being shutdown? I'm probably not the only person that finds that to be a little outrageous.

    • by arth1 (260657)

      Some of these comments are absurd. Here in the real world, people need to discuss things in order to do their jobs. They might even need to discuss them with more then two people. That's how you come to an informed decision.

      Yes, they need to discuss them. But not with the other decision makers without public oversight
      Discuss them with experts that are not part of the decision making process or discuss them in meetings open to the public. Keep it above board.

  • As these people were using an email account supplied by the school district, the simple solution is to automatically make all of the email from each board member public facing. Something similar to google groups email would work. They can discuss things all they want, and it is all in 'public' as it is available right away.

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