Virginia Supreme Court to weigh limits on official e-mail in Fairfax schools case

April 13, 2012

Virginia’s Supreme Court is scheduled to hear arguments Monday in a case arising from Fairfax County schools that could impose new limits on how elected officials use e-mail to discuss public business.

The key question is whether hundreds of e-mails, which Fairfax School Board members sent to one another before a controversial vote to close Clifton Elementary School, constituted secret meetings in violation of the state Freedom of Information Act.

The case arose last year when Clifton parent Jill DeMello Hill filed a lawsuit in an effort to force a revote on the school’s closure and a broader examination of whether e-mails pinging between BlackBerrys and laptops have allowed the kind of private deliberations that the state law is meant to prevent.

“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.”

Fairfax officials declined to comment because the case is pending. But in a court brief, the school system’s lawyers argued that board members followed state law as it’s currently interpreted — and that further constraints on communication among members would disrupt the delicate balance between government transparency and efficiency.

“[I]t would undermine effective government if Virginia’s open-meetings laws were made so restrictive that they chilled or prohibited substantive discussions between two officials outside of the confines of a public meeting,” the brief said.

The case reaches the state high court as advocates across the country raise questions about how governments have interpreted sunshine laws in an age of rapid and ubiquitous electronic communication.

“It’s something that is bubbling everywhere,” said Mark Caramanica of the Arlington County-based Reporters Committee for Freedom of the Press. So far few cases have made their way to an appeals court, Caramanica said, “but I expect to see more and more.”

In Michigan, an environmental group sued the Ann Arbor City Council in 2009 over the use of e-mail — during a public meeting — as members were deliberating whether to build a parking structure.

That case was settled out of court in 2010. The council has since passed a rule prohibiting members from communicating electronically with one another during public meetings.

In Utah, the state legislature passed a bill last year that shielded elected officials’ electronic communications — including text messages, e-mails, video recordings and instant messages — from being released in response to public records requests. The law was repealed almost immediately after public outcry.

In the Fairfax case, justices will have to determine whether School Board members’ e-mails involved “virtually simultaneous interaction.”

That is the standard the state Supreme Court set in 2004, when it decided that e-mails sent among Fredericksburg City Council members — at intervals ranging from four hours to two days apart — were not “virtually simultaneous” and thus did not count as a meeting.

The Fairfax e-mails, in contrast, were sent as few as two minutes apart.

Justices also will have to decide whether the e-mails violated a key provision of the state Freedom of Information Act: Any “informal assemblage” of three or more members of an elected body is a meeting that must be formally announced and open to the public.

School board members and other elected officials may e-mail one another en masse to broadcast information, under the current interpretation of the law. But to avoid creating an “informal assemblage” of three members, the Virginia Freedom of Information Advisory Council says, elected officials should refrain from back-and-forth discussion with more than one colleague at a time.

In other words, “choose ‘respond to sender’ instead of ‘respond to all,’ ” the advisory council, which was created by the legislature, says in its published guidance. “One-on-one communications are clearly allowed under FOIA, and this will avoid an e-mail discussion among three or more members.”

Evidence indicates that Fairfax board members were careful to abide by that rule as they considered whether to close Clifton Elementary. With one notable exception — when three board members e-mailed one another in a chain that mostly consisted of jokes about needing a vacation — they limited themselves to one-on-one discussions, whether in person, on the phone or over e-mail.

But they had many such one-on-one discussions, one after another. Sometimes, a board member forwarded e-mail chains to his or her colleagues — sharing one-on-one discussions with a larger group.

So an important question is whether such serial e-mail communications violate the spirit — if not the letter — of the law.

Hill, the plaintiff, contends that the sheer volume of e-mails sent over two days — and the fact that at least one board member, James L. Raney (At Large), appeared to change his mind during those two days — constituted illegal conversation and cajoling by board members.

The decision to close Clifton on July 8, 2010, was made via backroom dealing before members ever took to the dais to vote, Hill argued.

“What was going on was exactly what the open meetings laws were created to prevent,” she said. “We’re supposed to watch them deliberate.”

Hill lost the first round of this fight in July, when a Fairfax County Circuit Court judge ruled that the e-mails were “used consecutively, not cooperatively,” and thus were not meetings.

A Supreme Court reversal of that decision could have far-reaching implications — not only in Fairfax, where the battle over Clifton Elementary could be rekindled, but across the commonwealth.

The School Board and its allies — including the Virginia School Boards Association, the Virginia Municipal League and two other organizations that together filed an amicus brief — argue that state and local government will become unworkable if the court rules in favor of Hill.

It’s “crucial” that officials be able to communicate one-on-one to “resolve issues and represent constituents by persuading other officials,” the amicus brief says.

Ban that communication, the brief argues, and government officials would either get a lot less done or would have to speed up their decision-making process, voting after only superficial analysis.

Hill said she’s unmoved by that argument. School boards must make their decisions in the open, no matter what, she said.

“Sometimes you have to compromise efficiency for getting the right outcome,” she said.

Emma Brown writes about D.C. education and about people with a stake in schools, including teachers, parents and kids.
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