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Tuesday, April 10, 2012

City attorney: Texts during meetings are public records

NASHUA – If you want to know what aldermen text about during their meetings, all you’ve got to do is ask.

That’s the legal opinion city attorney Stephen Bennett sent aldermen last month through a memorandum on the interplay between the Right to Know Law and the use of cell phones and personal laptops during public meetings.

The memo addresses technology use between board members during meetings, which, for some, is a question of open government.

“When you’re a publicly elected official, all we keep hearing is a touting of transparency,” Alderman-at-Large David Deane said. “Text messaging isn’t transparent. It’s something you’re doing between yourself and another person or another group.”

In his March 23 memo, Bennett said text messaging or emails sent between members of a legislative body during a public meeting may violate the Right to Know Law, which is meant to ensure public access to the actions, discussions and records of all public bodies and their accountability to the people.

“The purpose of the meetings, in part, is to permit the public to hear its representatives discuss and vote on measures before it,” Bennett said. “If the discussions of the public’s business at a meeting take place partially through the use of electronic devices, then those discussions have been closed to the public – violating the requirement that the meetings be held in public.”

Bennett added that the public has the right to obtain governmental records, which may include emails or texts about city matters, and would be subject to public disclosure.

“Correspondence in the form of text messages or emails between members discussing matters under their jurisdiction would constitute public records and be subject to disclosure,” Bennett wrote.

For some board members, the memorandum is a question of personal device etiquette while doing city business. Texting during meetings is inappropriate because no one else knows what is being written, Deane said.

“It could be people texting, telling other people how to vote,” Deane said. “I’m not saying it happens, but who’s to say it doesn’t?”

The topic of electronic communication first came up during a Technology Use Assessment Ad Hoc Committee meeting, said Alderman-at-Large Barbara Pressly. She is the chairwoman of the committee and said it was part of a conversation about authorizing technological use during meetings.

Pressly said aldermen who don’t use smartphones or laptops during meetings can be left at a disadvantage, creating unequal access to information.

For example, some aldermen are getting comments from people outside the meeting who are watching at home, Pressly said.

“Everyone is supposed to focus on what’s being said at the meeting and everybody should be getting the same information, so if someone is on their cell phone or texting, then they’re getting different information,” she said.

How aldermen use electronic devices at meetings varies depending on whom you ask.

The city does not provide computers or phones to do business, so the devices that they do use at meetings are personal, Alderman-at-Large Mark Cookson said. When the city added wireless access to the aldermanic chamber, it provided board members an incentive to do more work digitally, he said.

Some aldermen refer to smartphones for informational purposes during a meeting, while more aldermen are bringing laptops for documents instead of printing them out, Cookson said.

The administration also has been known to use personal devices such as iPads during meetings, Deane said, while other officials don’t bring any devices or keep their cell phones turned off for the duration of a meeting.

Ward 3 Alderman Diane Sheehan said she uses her smartphone to look up studies or previous meeting minutes as they are referenced in discussions.

“I want to make the best decision possible and that means having information,” Sheehan said.

She said the memo is a distraction.

“For me, this is common sense and something that everybody knows, and if there’s a specific instance, address it,” Sheehan said. “Other than that, there are way more important things to be concerned about and more important uses of our attorney’s time.”

Technology itself benefits the board, some said, allowing boards and committees to continue conducting business when some members are unable to participate in person.

For instance last week, when Ward 9 Alderman Dan Moriarty was participating in an Infrastructure Committee meeting from Utah, Cookson took a picture of an amendment on his smartphone and emailed it to Moriarty during the meeting.

“It was an appropriate use of technology in that fashion,” Cookson said. “I stated that I was going to email it to him so that the public was aware of my intentions and my actions.”

Others said the matter is a question of distractions.

“I think you’re publicly elected, you attend meetings, you should be attentive to the subject matter in front of you and not be texting or playing with your phone,” Deane said.

Pressly said she has tried unsuccessfully to sponsor legislation in the past that would stop board members from using personal devices at all during meetings.

Some argue the use of personal devices is a part of everyday business.

“It’s all about staying connected, but sometimes that connection is distracting to you as well as those members sitting around you,” Cookson said.

Some say calling that reality into question may create paranoia among the board when no foul play is going on.

“If somebody else does something that I think is inappropriate, I’m going to ask,” Sheehan said. “This is just general innuendo stuff. It doesn’t make us look good at all.”

Maryalice Gill can be reached at 594-6490 or Also, Follow Gill on Twitter (@Telegraph_MAG).