PEORIA, Ariz. (USA TODAY) — Officials here are considering an ordinance to ban City Council members from text messaging or emailing each other during public meetings to avoid potential violations of the state's open meeting law.
Peoria leaders say there hasn't been a problem, but they want to take preventative steps to ensure public business is handled transparently in an age when politicians can tweet, email and instantly communicate with one another without saying a word.
City Council members across the region use their phones or tablets while on the dais, including some in Phoenix, Mesa and Chandler who have been known to tweet and send text messages during meetings. Nobody in those cities, though, has raised concerns. And no council members have been known to text one another.
"The Arizona Open Meetings Act envisions that you're going to have an open discussion and an open public meeting," City Attorney Steve Kemp advised the Peoria City Council recently. "It does not envision that you would e-mail yourselves or text message yourselves on the dais about decisions."
Cities from New Jersey to California have broached bans on texting from the dais. The Encinitas, Calif., City Council last year implemented such a prohibition.
Peoria appears to be the first Arizona city to consider a similar ordinance.
Peoria Mayor Bob Barrett said texting during meetings gives the public a bad perception.
"You may or may not be doing city business. You may be telling your spouse, 'I won't be home until 10 o'clock because these other guys won't shut up,' (and) that's innocent, there's nothing wrong with that," he said. "But the fact that you are typing email messages or text messages in public view, nobody knows what that says, and it looks bad."
State law does not prohibit council members from texting or emailing each other during public meetings. However, elected officials must be careful that digital exchanges about government business don't involve a majority of a public body, which would be a violation.
The law defines a meeting as a gathering in person or through technological devices of a quorum during which they discuss, propose or take legal action. It includes phone and electronic communications.
First Amendment experts say that council members discussing city business through text messages or e-mails during public meetings could create problems of government transparency.
"It would upend the purpose of the Open Meetings Law by excluding the public from deliberations," said David Bodney, a partner with the Steptoe and Johnson law firm. "The public aspect of government should not merely be a charade that takes place after the public officials have already deliberated in secret."
Experts urge council members to avoid e-mailing and texting one another altogether at meetings.
At the heart of the issue is the public's confidence in its government, said Matt Lore, communication and education director for the Arizona League of Cities and Towns.
"In government, perception plays a huge role, so when you see somebody, a council member or a mayor, on the dais texting, it raises questions," he said. "The whole goal of the Open Meeting Law is transparent government."
Communicating with one another through text messages keeps things secretive, said Dan Barr, a First Amendment attorney with the Perkins Coie law firm.
"The whole purpose of the text is that you're not sharing it with other people as opposed to making the statement orally," he said.
Any electronic communication about city business is a public record regardless of if it was sent on a city or personal device, according to the Arizona Ombudsman's Office and other First Amendment experts. That would include text messages, though experts say they are more difficult to obtain.
Arizona has not yet seen a court case regarding text messages via the state's Public Records Law, but other states have.
The Illinois Appellate Court upheld the Illinois attorney general's opinion that the city of Champaign must fulfill the News-Gazette's public-records request for text messages sent and received by city council members during a public meeting in 2011. An attorney general opinion in Texas also said text messages and emails between city officials are public record even if they were on a personal device.
Cases in other states are not binding in Arizona, but Bodney said courts and attorneys could take them into consideration.
Kathryn Marquoit, assistant ombudsmen for public access with the Arizona Ombudsman's Office, said case law makes it clear that emails and electronic documents are public records.
There hasn't been much legal discussion about texting and other modern forms of communication. Until there is, experts rely on legal decisions regarding emails to chart a course of action, she said.
"There's always advances in technology that come before the case law litigating them," Marquoit said.
Contributing: Republic reporters Beth Duckett, Dustin Gardiner, Michelle Mitchell, Gary Nelson and Maria Polletta