E-mails spark ethics discussion

EAST PALESTINE – When it comes to council members corresponding with each other outside of public meetings, is e-mailing against the law?

That question was posed as last week’s meeting when Councilman Don Elzer asked Village Solicitor Shirley Smith if e-mails among council members are a violation of the Ohio Sunshine Laws.

The Sunshine Laws, also known as open meetings laws, dictate how public meetings are to be held and how public records are to be maintained and available to the public.

Under the law, public officials (comprising the majority of the council represented) are prohibited from meeting with one another outside of public meetings to discuss business.

Smith told Elzer that in her opinion council members can e-mail one another for informational purposes, but should not schedule online “meetings” or “chat” with one another on the Internet at a designated time.

“I know that this council desires to have a very transparent type of relationship. I would take the more conservative role and … avoid any question of violating the Sunshine Law,” she said.

Councilman Alan Cohen, a retired Ohio attorney, said he researched the matter and found that unless e-mail correspondence is prearranged there is nothing wrong with public officials corresponding that way.

“Unless you get together and say ‘We are all going to e-mail at the same time,’ that is not a meeting, and unless you are taking deliberative action on a topic, it is not a meeting,” he said. “There is no reason why six of us, let alone three, could not have an e-mail conversation among ourselves.”

Councilwoman Ellen Beagle, who practices law in Pennsylvania, said what prompted the discussion was a “group e-mail” sent to members of council by Elzer.

Elzer had sent what she called an “informational e-mail” to all council members. She said the e-mail’s intent was purely informational and no “deliberations” took place among council members, but she was concerned the correspondence could lead to future discussions that could violate the law.

She explained she didn’t want the correspondence to lead to members of council knowing how each other was going to vote on a particular agenda item before a public meeting.

So far that has not been done, she and Cohen said after the meeting.

They also said after the meeting the e-mail from Elzer had nothing to do with council-related business, but was regarding the possibility of a community appreciation day.

Smith said after the meeting she is not aware of any instances in which council members were discussing council-related matters through e-mail.

During the meeting Cohen said, “We cannot ask each other ‘How are you going to vote?’ We can’t pre-determine how everybody is going to vote online.”

He also said, however, that Ohio law does not prohibit e-mail exchange among public officials.

“There is one case in Ohio that has ever dealt with this and said it is perfectly (allowable) to engage in an e-mail. There is no simultaneous exchange. It doesn’t take place in real time,” he said.

Smith agreed, but cautioned that e-mail correspondence could turn into simultaneous communication.

“If you initiate and suddenly two or three jump on and it suddenly becomes a chat it’s almost as though you are sitting together,” she said.

She added she doesn’t believe case law is up to date with technology.

Finance Director Traci Thompson told council members they should save all of their e-mail correspondence for public records requests, which prompted the question regarding whether the e-mails are even public records in the first place.

Thompson said she believed they were since her e-mails are public record, but Cohen said council members’ are not since they are using their own personal computers.

The discussion ended with Smith reminding them to keep the Sunshine Laws in mind when communicating.