Electronic Communication and the OMA

Kacie Kefgen

By Kacie Kefgen, MASB Assistant Director of Labor Relations and Legal Services

DashBoard, Feb. 15, 2017

Over the past several weeks, I have had the pleasure of teaching a number of classes to board members, and one topic always sparks a lot of discussion is the Open Meetings Act and electronic communication. At the heart of the matter is the tension between the ease with which we can connect with people at the touch of a button and the OMA requirement that board members conduct their school business in a way that the public can see.

For the purposes of the OMA, a meeting is “. . . the convening of a public body at which a quorum is present for the purpose of deliberating toward or rendering a decision on a public policy . . .” Meetings of the board must be properly advertised and must occur in public (almost always).

Wait! Four of us are just exchanging texts! Can that be a meeting if we aren’t physically together?

Yes! A quorum of the board is a majority of the members elected (or appointed) and serving.1 In school districts, a quorum is usually four board members. A recent unpublished Michigan Court of Appeals case, Markel v. Mackley, confirmed that members of a pubic body could violate the OMA by emailing each other about official business.2 In Markel, members of township boards emailed one another discussing township policies and business, often including four board members as email recipients.

What if not everyone in the text or email chain is actively responding?

It may not matter. In Markel, many of the illegal email chains included four board members, but not all four actively responded in the email chain. The court found a violation of the OMA where the fourth board member simply read the email chain and then carried out the plans at the next board meeting that were discussed in the emails.

Does this mean we can’t use electronic communication at all?

No. Boards may use email, texts and social media. For instance, if the superintendent sends out a reminder to all board members about an upcoming event and everyone reads it without comment, there is nothing even close to approaching deliberation happening. However, if a discussion of school policy or business happens over email, texts or social media among a quorum of the board, those communications could be over the line.

What can we do to avoid this type of OMA violation?

First, remember the definition of a meeting under the OMA. Second, consider having the superintendent use BCC when emailing the whole board. That way, if someone replies, that reply only goes to the superintendent rather than the whole board. Third, if someone includes all board members in an email, board members should refrain from using the “Reply All” button. Whatever would be communicated in that email reply can probably be communicated in another way that does not violate the OMA.

1 See MCL 380.1201.

2 Markel v Mackley, ___NW2d___; 2016 Mich. App. LEXIS 2004, at *13 (Ct App, Nov. 1, 2016)

Read More DashBoard Articles