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Attorney: State's open meeting law applies to social media

BRATTLEBORO—Town Attorney Robert Fisher advised the Selectboard last week that board members’ use of social media to communicate with members of the public during a warned meeting violates Vermont’s Open Meeting Law.

Local news organizations had questioned Selectboard member Ken Schneck’s use of Facebook during meetings to connect with citizens not present at the meeting.

In past interviews with The Commons, Schneck has voiced his goal of using technology and social media to engage more residents in the municipal process.

However, in a six-page memo to the board, Fisher advised the members that one board member’s use of social media to communicate directly with the public violated the open meeting law when “other members of the public or other board members are deprived of the ability to see, hear, and discuss those communications.”

In this case, he said, it’s not social media as a communications tool that violates the law.

Instead, he said, the problem stemmed from the fact that not everyone in the room or watching the meeting via Brattleboro Community Television could view the conversation.

“A recognized floor speaker’s communication is made to all attendees, public, and Selectboard alike,” wrote Fisher. “However, an online communication through social media during a warned open meeting to an individual Selectboard member reaches only that member, effectively excluding everyone else.”

Fisher said that the exclusivity of social media in this context “went to the heart” of the Open Meeting Law. The law dictates that everyone present at a warned meeting is privy to all deliberations.

But, added Fisher, using social media might not always violate the law.

For example, he said, if every board member had a computer open to a Selectboard Facebook page and a TV screen behind the board displayed their Facebook conversations, then those discussions would be open to all and therefore acceptable.

Fisher also referenced the Vermont League of Cities and Towns’ (VLCT) Model Social Media Policy that discourages officials from using “personal accounts to comment on or post information to town social media sites, and/or posting information regarding official town business on other social media sites.”

According to the league, all posts by town officials fall under the state’s public document and open meeting laws.

In his memo, Fisher also responded to other questions regarding whether electronic communications from, between, or among Selectboard members like chats, blogs, or e-mails were considered public documents.

Fisher’s response boiled down to “yes.”

Vermont law defines public record as “any written or recorded information, regardless of physical form or characteristics, which is produced or acquired in the course of public agency business,” wrote Fisher.

Fisher added that private e-mail accounts used only for the board member’s private use would remain private.

Fished suggested that the board designate a custodian of public records to manage board-related e-mails. This individual would receive a blind carbon copy of every board e-mail, he said.

In light of the fact that most board members use private e-mail accounts, he recommended the town develop a town-based e-mail system.

Finally, Fisher suggested the board develop a policy outlining how the board should use social media resources.

At the Sept. 20 Selectboard meeting, board Clerk Dora Bouboulis said she’s had more conversations with the public about the social media question than about the controversial mast-arm traffic lights.

She raised a concern that online, people can try to remain anonymous or create “pseudo profiles.”

Schneck said that “showing up shouldn’t be the only way people can participate” with the board, given the available technology.

“I’m excited to figure it out,” he said.

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Originally published in The Commons issue #120 (Wednesday, September 28, 2011).

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