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EDITORIAL: Elected officials cannot work behind closed doors
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EDITORIAL: Elected officials cannot work behind closed doors

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Since it was discovered by the Star-Herald that the Scotts Bluff County Board of Commissioners had violated the Nebraska Open Meetings Act by using email communications to discuss public business concerning the Stegall Road project, it has been made clear that the Board of Commissioners do not feel they were in error by doing so.

This should be a concern to all citizens across the county. Why? Because their reaction and denial of their act creates additional concern that conducting business via email or phone calls could potentially be common practice by the Board of Commissioners.

LISTEN NOW: Commissioner: 'We've been smacked around' on Stegall Project

And if that is the case, Section 84-1414(4) of the Nebraska Open Meetings Act, provides that any member of a public body who knowingly violates or conspires to violate the Open Meetings Act, or who attends or remains at a meeting knowing that the public body is in violation of any provision of that Act, shall be guilty of a Class IV misdemeanor for a first offense, and a Class III misdemeanor for a second or subsequent offense.

With this concern prevalent, the Star-Herald invited Scotts Bluff County Board of Commissioners Chairman, Ken Meyer, and County Attorney, Dave Eubanks, to sit down and visit about our concerns. We invited Meyer as he is responsible for ensuring the board is trained on, understands and follows the legalities of the Open Meetings Act.

Meyer declined our invitation, but welcomed us to contact the county clerk and ask to be placed on the agenda and discuss our concerns with the entire board. We will be doing so in the near future, if this is the direction Mr. Meyer wishes to continue.

The Nebraska Open Meetings laws are a statutory commitment to openness in government. Their purpose is to ensure public policy is formulated at open meetings of the bodies to which the law is applicable. In Nebraska, the formation of public policy is public business, which may not be conducted in secret.

It is for this reason the Star-Herald sent the following letter to each member of the Scotts Bluff County Board of Commissioners, written by our attorney at Kautsch, Law LLC.

Did Scotts Bluff County Commissioners violate Open Meetings Act?

Letter to the Scotts Bluff County Commissioners:

The Star-Herald has retained my office to reiterate that some or all of the email communications referenced in the paper’s March 30, 2021 article titled “Did Scotts Bluff County Commissioners violate Open Meetings Act?” and its April 3, 2021 editorial titled “Open Meetings Act, there for a reason,” very likely violated state law. Further, on behalf of my client, I urge the Board to publicly acknowledge its wrongdoing, commit to abolishing serial communications in any form, and agree to allow a member of the Nebraska Press Association to provide at least one hour of Open Meetings Act training.

The email communications that served as the basis for the Star-Herald’s reporting revealed that the Board has a practice of copying all five members on communications related to conducting public business. Such a practice is troubling because, as the Executive Director of the Nebraska Association of County Officials (NACO) told the paper, his organization “does emphasize avoiding quorums in emails during its new member orientation.”

Unless a public body avoids a quorum in an email thread, it risks conducting a “meeting.” According to the Attorney General’s Office, “two things must be present before a ‘meeting’ under the Act occurs. First, a quorum of a public body must be present.”

Given that there are five seats on the Scotts Bluff County Commission, any email communication that includes three or more commissioners constituted a quorum.

Second, in order for a meeting to occur, “the public body must engage in at least one of the activities included in the definition of ‘meeting’ set out in Neb. Rev. Stat. § 841409(2) (2014), i.e., “briefing, discussion of public business, formation of tentative policy, or the taking of any action of the public body ....” The term “public business” is not defined in the Open Meetings Act, but in a case involving the expenditure of public funds, the Nebraska Supreme Court noted that a “public purpose” is “primarily for the Legislature to determine.” The legislature has specifically conferred on the Board the authority to “make necessary policies and regulations to effect an efficient road administration in conformity with the laws of the State of Nebraska.” Thus, there can be little doubt that discussions of the Stegall Road project constitute public business under the Open Meetings Act.

Further, as the Star-Herald pointed out in its April 3 editorial, the legislature has recognized that “telephone conference calls, emails, faxes, or other electronic communication shall not be used to circumvent any of the public government purposes established in the Open Meetings Act.”

Despite that statutory reference, and as the NACO director was quoted as saying in the March 30 article, the state’s appellate courts have not ruled specifically on whether serial emails violate the Open Meetings Act. Further, although the Outline of Nebraska Open Meetings Act provided by the Nebraska Attorney General’s website cites the above quoted statute, it does not clarify whether serial emails violate the law. Moreover, it is also true that the Attorney General’s Office has issued an opinion finding that a “minimal exchange of correspondence or minimal electronic communication” may be permissible because such minimal communications “do not trigger the existing circumvention prohibitions.”

However, in that same opinion, the Attorney General’s Office “cautioned against ‘extensive’ correspondence among members of a public body which might constitute actionable conduct in circumvention of the Public Meeting Statutes.” That Office further opined that if a “communication elicited responses and further communications, then at some point, it would be possible to argue that the public body was intentionally using the electronic communications to circumvent the Public Meetings Statute.”

Moreover, in a disposition letter issued in 2010 that directly addressed whether serial communications “have reached the point where they are sufficiently developed so as to evidence an intent to circumvent the Act,” the Attorney General’s Office found “additional guidance in Hispanic Education Committee v. Houston Independent School District, 886 F. Supp. 606 (So. Dist. Tex. 1994), a case cited by our Supreme Court in City of Elkhorn v. City of Omaha, 272 Neb. 867, 725 N.W.2d 792 (2007).” In Hispanic Education Committee, the court determined “that the real issue in the case was ‘whether informal discussions became a substitute for a formal deliberative session of the governing body.’” In applying that case to serial communications, the Attorney General’s Office found that such communications that include a quorum of a public body violate the law when they “take the place or substitute for formal, deliberative discussion of the Board’s actions….”

At least two of the email threads included in the emails the Star-Herald obtained amounted to meetings of the Board of which the public was not notified that went well beyond a “minimal exchange of correspondence or minimal electronic communication” and effectively substituted for the deliberative process in violation of the Open Meetings Act.

One of those threads consisted of five emails between County Highway Superintendent Linda Grummert and yourself (hereinafter “the Meyer thread”). The Meyer thread began when Ms. Grummert sent an email to Mr. Meyer on February 5, 2021, related to potential shortfalls in the county’s Road Fund. Mr. Meyer responded and copied the rest of the board members. By the end of the thread, which concluded on February 7 and involved conflicting information about a certain product to be used for the Stegall Road project, all the Board members were privy to the issues Ms. Grummert had raised for the Board’s consideration.

The second thread was between Ms. Grummert and commissioner Russ Reisig (hereinafter “the Reisig thread”) related to materials to be used in the Stegall Road project. Although the thread began on January 12, when Ms. Grummert contacted the Department of Transportation about the efficacy of the project “grid,” and continued when she forwarded the Department’s response to Mr. Reisig on January 14, the thread picked up steam when Mr. Reisig forwarded his response to the rest of the board members on February 14, 2021. Ms. Grummert subsequently responded in an email copied to all the board members objecting to Mr. Reisig’s position on the materials for the “grid” and stated in part “[t]he allegation, from Mr. Reisig, is untrue.” Shortly thereafter, on February 19, Mr. Reisig sent a letter to Ms. Grummert via email, to which all the members of the Board were copied, directing Ms. Grummert to “make a change order” related to materials needed for the Stegall Road project and setting forth his “expectations” for her job performance “[m]oving forward.”

In both instances, all five members of the board were copied on the threads, indicating that a quorum existed. Moreover, the threads involved a discussion of public business, specifically, the expenditure of funds and use of materials related to the Stegall Road project. As such, the communications constituted a meeting under the Open Meetings Act.

Moreover, the available guidance specifically related to serial communications further indicates that both the Meyer thread and the Reisig thread are the kind of email communications that violate the law because they constitute deliberations rather than a “minimal exchange of correspondence or minimal electronic communication.” In both instances, debate went back and forth between a commissioner and the County Highway Superintendent. On multiple occasions in both threads, all five commissioners were included. Both threads reveal communications that “elicited responses and further communications,” leading to the inference that the purpose of the email is to circumvent the purpose of the Act, which, as my client noted in the April 3 editorial, is that “citizens may exercise their democratic privilege of attending and speaking at meetings of public bodies….” Members of the public were denied that opportunity when the debates in the threads took place, but each and every one of these communications played out in front of the entire board, most in real time.

Ultimately, both threads reached the point where they are sufficiently developed to evidence an intent to circumvent the Act. In the Meyer thread, you and Ms. Grummert could not reach a meeting of the minds on a decision related to highway safety and maintenance, despite multiple communications back and forth, and in the Reisig thread, Ms. Grummet objected to an “allegation” Mr. Reisig had made, after which Mr. Reisig ordered her to perform her duties in the specific way he directed or face an employment consequence. Instead of debating the issue in a public setting, the public had no opportunity to learn about and potentially challenge the decisions the Board made in either thread.

In both the Meyer and Reisig threads, crucial deliberations and decisions related to the Stegall Project took place out of public view. There can be little doubt that those threads violated the Open Meetings Act because they went beyond a “minimal exchange of correspondence or minimal electronic communication” and effectively substituted for the deliberative process.

Finally, I noticed that Mr. Reisig told the Star-Hearld that the commissioners were included in the emails to provide them with “information about cheaper alternatives,” and as such, neither the Meyer thread nor the Reisig thread violated the law. Although it is true that the Nebraska Supreme Court established a limited informational exception to the Open Meetings Act in City of Elkhorn when it held that “informational sessions of less than a quorum of the Omaha City Council members did not constitute a public meeting under the Act,”that exception is clearly inapplicable here. For one, all five members of the board were included on the communications. Secondly, as discussed in detail above, the communications in both the Meyer and Reisig threads involved deliberation and decision-making, not simply the sharing of information. Thus, any exception to the law related to the gathering of “information” by a public body is inapplicable here.

In light of these developments, my client respectfully requests that the Board (1) issue a press release containing a public apology for conducting public business related to the Stegall Road project in the Meyer and Reisig threads; (2) in that same press release, state a commitment to following the Open Meetings Act that specifically includes no longer copying board members on email correspondence, consistent with NACO recommendations; (3) review and disseminate for public consumption 25 copies of the Nebraska Press Association’s handbook related to the Nebraska Open Meetings Act provided by that organization; and (4) agree to allow a member of the Nebraska Press Association to provide at least one hour of Open Meetings Act training. Failure to respond appropriately to these reasonable requests will force my client to consider additional action.

Lastly, my client tells me that in the process of requesting the emails discussed herein under the Public Records Act, you indicated that making such requests would “damage the relationship” between the paper and the Board. However, my client, like any member of the public, is “fully empowered and authorized” to obtain access to and copies of public records, such as the emails at issue here. Implying that the paper is a bad actor against whom retaliation is warranted simply for exercising its rights under the law creates a chilling effect that violates the First Amendment of the United States Constitution. As a federal district court has found in the context of litigation by the media against a county sheriff, a “reporter might well tone down a critical article” if officials “might terminate, or even restrict…future access. That is exactly the type of chilling effect the First Amendment guards against.” Despite your unwelcome words, the Board can rest assured knowing that the Star-Herald will continue to exercise its rights to access public records and meetings.

You may direct your responses either to my office or to the Star-Herald’s publisher, Rich Macke at 308-632-9000 or rich.macke@starherald.com. Thank you for your assistance.

Sincerely,

Maxwell E. Kautsch

Attorney at Law

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