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Tuesday, February 6, 2018

Board Member Political Emails Not Covered by OMA

A reader shared a recent advisory opinion issued by the Public Access Counselor of the Attorney General that addressed a claim that board members violated the OMA when they emailed each other about a referendum. The PAC ruled that the members of the board did not violate the OMA in 2017 PAC 49878.

A school district was contemplating issuance of working cash fund bonds in the amount of $20 million. In response, residents of the district filed a referendum petition to place the question of the issuance of the bonds on the spring 2018 ballot. Another group of residents filed an objection to the validity of the referendum petition. The PAC opinion notes that a couple of the school district board members had emailed each other about the referendum objection process, which led to the complaint filed with the PAC claiming the board members violated the OMA.

The school district argued that the board member emails did not violate the OMA because the board members were not "discussing public business" in those emails under section 2(a) of the OMA. The PAC agreed, finding that the emails between the board members were limited to the mechanics of filing the objections to the referendum petition and not business of the school district. Instead, the board members were acting as private citizens exercising their political rights, and not representatives of the school district board. Board members' private actions "are not automatically converted into the business of the Board solely because the actions could have an impact on the business of the public body." In short, the PAC found the emails to be more in the nature of "political discussions," which are not covered by the OMA. 


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