Some of the most interesting and revealing debate between Metro Council members never reaches the floor of the City Hall chambers. Instead, council members regularly take to their computers to hash out their opinions on city business and upcoming votes.
A review of about four months of group council emails shows that members debated issues before and after meetings on issues as seemingly mundane as bus bench contracts to more obviously heated topics related to the possible creation of the city of St. George. Clicking “reply all” time and again, they negotiated, argued and asked one another for support, sometimes working out compromises as they confronted city problems.
Council members did not officially take straw polls ahead of votes or blatantly engage in secret balloting — the kind of actions explicitly prohibited by state law — in the emails provided to The Advocate. Sunshine law advocates, however, say the council members’ missives likely violate the spirit of state open meetings laws designed to prevent elected officials from conducting business in secret.
“What we have here is clearly debate and discussion going on behind closed doors in contravention of the intent to the open meetings law,” said New Orleans attorney Scott Sternberg, who specializes in media and public access issues. “The open meetings law exists because we’ve decided as a state that it is essential to the democratic process that the public’s business be performed in an open and public manner.” Email has made communication between any large group — like the sometimes unwieldy 12-member council — easier and more effective. And politicians have long worked out deals about important matters outside the public eye.
But state law specifically forbids a quorum, or simple majority, of a public body from holding private meetings to either deliberate or act on a matter. Open meetings law experts said the email debates, in which every member of the council is looped into the discussion strings, essentially create virtual quorums.
Many of the council members interviewed for the story said they don’t believe they are in violation of the laws, pointing out that their emails are subject to public review. Some contended that they would have only crossed the line if they were counting votes — which they didn’t — and felt that the law has yet to catch up to technology.
Councilman Ryan Heck is one of the most vocal and uncensored members in the email threads. By contrast, during council meetings, his comments are usually concise.
“This is actually a good forum for this type of conversation to be had,” he said. “This is all public forum stuff. Any citizen has the ability to get this information at any time. If I were to speak with my colleagues in some smoke-filled back room, you’d never be able to know about it.”
While the emails are certainly subject to public disclosure, it’s unlikely they would be provided at the same time as the council is considering a particular matter. It took the city three months to hand over about 500 pages worth of council emails requested by The Advocate. Heck said he would limit his emails to the council if someone instructs him that he’s breaking the law. The Parish Attorney’s Office, which advises the council, has not issued any opinions on group emails, said Lea Anne Batson, first assistant parish attorney.
Robert Travis Scott, president of the Public Affairs Research Council, said state laws lay out the principles of what elected officials should try to avoid, even if the methods of communication have changed. He said elected officials should err on the side of transparency.
“You want public bodies to avoid making decisions through a system that is not a public meeting,” Scott said. “They should want to conduct themselves in the most open way, both in accordance with the spirit and letter of the law, and you don’t go about this by asking, ‘What can we get away with?’ ”
In January, the council vigorously debated via email the appointments of three commissioners for the St. George Fire Protection District. Appointments for fire district boards are typically rubberstamped, but these appointments became a flashpoint after some council members tried to oust the incumbents because of the department’s perceived support of the effort to incorporate the city of St. George — a movement that has divided the council.
The council initially failed to garner a majority for any candidate, so the vote was deferred. In the meantime, council members took aim at one another in emails.
On Jan. 11, Eldon Ledoux, a St. George Fire Department employee, wrote to Councilwoman Chauna Banks-Daniel, chastising her for supporting the council coup on the fire commissioners. The email went to the full council, eventually spurring a debate about how council members would move forward making appointments.
Councilman Buddy Amoroso chimed in to support Ledoux in an email directed to the full council, noting that he had supported Banks-Daniel’s “slate of candidates” for the Alsen Fire Department, which is in her district, and expected her to reciprocate. Banks-Daniel responded, “I think it is unprecedented and exhibits a lack of respect for me, as an elected official and your colleague, to ... anyway question or require justification for my actions.”
Councilwoman Ronnie Edwards wrote back that incumbents should not be guaranteed tenure, noting that women and minorities make up less than 25 percent of the membership of the appointed boards and commissions.
“Even when candidates have impressive credentials, the status quo seems to prevail in who ultimately gets appointed,” she wrote.
Heck proposed a compromise that had the unintended effect of offending some of his colleagues, suggesting “a gentleman’s agreement” that would allow the five seats of the St. George Fire Commission to be decided by the four council members — himself, Joel Boé , Amosoro and Chandler Loupe — whose council districts align with the fire coverage.
Some of the councilwomen responded that they were being outnumbered by the men on the council and took exception with his use of the term “gentleman’s agreement.” Heck quickly responded that it could be called a “gentleperson’s agreement.”
Despite the lively exchanges, the emails didn’t immediately resolve the rift between members. More than a month later and after repeated votes, the Metro Council was able to reappoint two of the three incumbents to the commission. The council deadlocked on the third appointment and never brought the issue up for a vote again. The end result was that the third incumbent, David Carnes, was able to keep his seat.
The email discussions could prove more fruitful in the ongoing debate about how to deal with the proliferation of bus benches along parish roads after they approved three franchise agreements for bus bench companies.
“I voted for them, and I regret doing so. I will be proposing legislation that we rescind the latest (three) contracts that we approved,” Heck wrote to the council. “I’m sure the two vendors will sue us, and they will win, as they should. But I’m of the opinion we should pay them their losses and move on.”
Councilwoman Donna Collins-Lewis responded in agreement, saying the Capital Area Transit System should be charged with overseeing the bench contracts. Amoroso suggested asking an economist to determine what potential liability the city-parish faced for rescinding the contracts.
A few months later, Heck wrote the council with a plan to get the bus bench companies to agree to not sue the city-parish.
“I have a strategy that *may* limit our exposure,” he wrote to his colleagues. He suggested that they put the contract out for public bid but only allow the three companies that already have contracts to bid. The terms of the agreement would give the companies clearly defined geographic territories for their benches, in exchange for agreeing to forgo civil litigation from the previous contracts.
“If even one participates, they’ll get the whole thing, and we’ve at have least limited our exposure on one lawsuit,” he wrote.
The three bus bench franchise agreements, approved several months ago, are up for a possible amendment at the Metro Council’s next meeting.
Other conversations spanned a variety of other topics, from the charged debate about renaming GSRI Avenue to whether movie theaters should be able to sell alcohol.
Not all council members responded to the group emails. Trae Welch, Scott Wilson and Tara Wicker did not participate in any conversations in emails reviewed by The Advocate.
Welch said he doesn’t think his colleagues broke the law, but he opted for caution.
Edwards noted that in almost all of the group communications, it was rare that a full quorum of the council responded, despite all being included in the email list. She pointed out that many of the emails originate with a constituent email to the full council, saying “it is certainly the courteous thing to do to reply all.”
Banks-Daniel said she had previously only considered in-person quorums to be a violation of the open meeting laws. Email gives council members an opportunity to be less guarded about an issue, she argued.
“Sometimes it is good because we can really show our true feelings about something that we may not want to say in a public meeting,” she said. She added that she was concerned that public record requests for their emails would result in council members censoring themselves in the electronic arena as well.
Loupe, who along with Boé only rarely chimed in on the group emails, said he has previously expressed his opinion to the council that they should not debate issues in emails.
“It’s not a violation as they are all public records and have been produced to various individuals on numerous occasions,” he said. “With that said, we have meetings for a reason, and if we are going to debate an issue, we should do so at the public meeting and not via email.”
Delgado said he took exception with the idea that his free speech rights were limited because he is an elected official.
“This is much ado about nothing. Everything we are saying over email as a council is, in fact, creating a public record, proven by the fact that you received it,” he said. In 2012, the state attorney general opined on a variety of issues related to email use by public officials, particularly those on elected bodies. The opinion cautioned that “the discussion and passing along of discussion between board members has the effect of a quorum convening.”
But it also said that unless council members are inviting discussion, “There is nothing in the law which prohibits a council member from relaying his or her opinion or the opinion of a constituent to another council member, or even multiple council members, outside of an open meeting through electronic means.”
Sternberg said his review of the emails suggested that council members did invite discussion.
Scott, the PAR president, said council members should seek staff briefings and other information so they can be informed about city issues but can do so outside of a quorum.
“If they’ve got that much to do, it sounds like they’re faced with the unfortunate reality that they need more meetings,” he said. “Just because you have a lot to do is not an excuse to do it behind closed doors.”
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