I was forwarded this article by a reader in response to last Thursday's ( April 23rd) BoS 7pm meeting ( video here on the Town website) and my concerns about using email to communicate and discuss business over which the BoS have control.
PORTSMOUTH — The City Council on Tuesday night got an education on the state's Right to Know law, most notably how it may have unknowingly clashed with the measure while recently communicating through e-mail.
The work session, which lasted slightly more than an hour, was held to allow council members to further understand the law, which states: “Openness in the conduct of public business is essential to a democratic society.”
City Attorney Robert Sullivan led the council through the work session Tuesday night, paying close attention to the language of the law, as well as the possible ramifications should anyone working for the city or elected by voters violate it.
“Any person who feels aggrieved that the city government may have violated the Right to Know law, either by having an illegal meeting, not keeping minutes or not producing public records, has the right to bring that action to the Superior Court,” Sullivan said.
If that person or party prevails in court, Sullivan said they then become entitled to have their legal fees paid for by the city. Sullivan said the court could also invalidate any action the City Council made while in violation of the Right to Know law.
In addition, Sullivan said any city employee or elected official who may have violated the law could be subject to a civil penalty between $250 and $2,000, and be obligated to pay for legal fees.
“This could actually be pretty serious stuff and cost somebody a lot of money,” he said. “This is one of the reasons we should all be thinking about these things all the time.”
While the meeting was meant to be informational, a bulk of the discussion at Tuesday night's work session centered on a recent e-mail sent by City Manager John Bohenko to the nine-person council and whether councilors who responded to the e-mail could have unknowingly caused the discussion to be subject to Right to Know.
As one of the councilors who responded to the e-mail, Esther Kennedy said she was simply trying to ask a question and was in no way trying to clash with the law.
Kennedy said she asked the question of Bohenko, but decided to reply to all of the other councilors on the list.
Bohenko also addressed the subject, saying he only attempts to communicate with councilors through e-mail as a way of making them aware of issues taking place throughout the city.
“I, as city manager, need to communicate with the mayor and councilors,” Bohenko said. “I'm not looking to get them to make any decisions.”
Bohenko said ultimately the lesson to be learned by councilors is not to reply to the e-mail and include all of the other councilors.
“Don't 'reply all' and I think we'll be OK,” Bohenko said.
“There are tremendous implications that would come for somebody hitting 'reply all,'” Sullivan said.
Tuesday night's work session also led to some surprise revelations on how the law applies to councilors taking part in neighborhood meetings or commenting on stories online.
Councilor Jack Thorsen asked at the end of the work session how the law applies to councilors who make comments online in a public forum such as on a news Web site or on social media.
“Is that now a meeting?” he asked.
Sullivan responded with, “Frankly it sounds like a meeting to me.”
Thorsen also questioned whether councilors who either participate in a news story or attend neighborhood meetings could be in violation of the law should a majority of them partake.
Sullivan said it would ultimately depend upon the topic of such a story or a meeting and whether that discussion involved councilors making some sort of a decision.
“It would not be a stretch to find that you were having an illegal meeting,” Sullivan responded.