What is a public meeting, anyway?

After some boards, councils and commissions met remotely for months and as some are continuing to meet only via video conferencing software, it’s worth wondering whether public officials are having important discussions in ways not easily available to the public. While it’s usually not their intent, officials often carry on important policy conversations outside of public view.

If a text message thread exists between all Salisbury City council members and the city manager, it’s certainly a public record, with some understandable exceptions for personnel matters and other items spelled out in state law. But do those conversations veer into the definition of public meetings?

Prior to COVID-19, most might have quickly answered “no,” but the only difference between a text message thread and the city council’s regular meetings conducted via Zoom is communication is typed rather than spoken and there’s no live video feed. All council members are still gathered in one place, a text message conversation, and likely talking about something concerning their duties as elected representatives.

Consider the following exchange between City Manager Lane Bailey and city council members on Nov. 13. In a previous era, council members might have gathered in City Hall to receive an update on a rapidly unfolding situation. Alternatively, Bailey might have called all of them and allowed the press to tune in. Now, it just happens via text.

Bailey (after discussion on previous day about heavy rain): River pump station access flooded last night. Sat around 3 a.m. It should peak and the water should recede pretty quickly (possibly late Saturday or early Sun). SRU anticipated flooding and planned accordingly.

Tamara Sheffield: Thanks for the update … I was curious.

Karen Alexander: Thanks for update. Did we get photos to use in lawsuit as it progresses?

Bailey: Yes, we are logging photos, marking water levels, etc.

Al Heggins: Did the flooding shut down the station? Or just the access?

Bailey: We have not cut power to pump station, just lost access. We may have to cut power at some point, but reservoir and tanks are full.

David Post: What a nutty way FERC (the Federal Energy Regulatory Commission) thinks we should operate a water system. Wonder if any human from FERC is close enough to take a boat ride to experience this first hand.

Bailey (several hours later): It’s now looking like peak flooding will be around 8 to 9 p.m. tonight. It looks like we will need to cut power to plant over night. This is trending like this past February event. SRU is well-prepared.

Alexander: Thanks for update. Will cutting the power overnight result in service interruption to our customers?

Bailey: They should not see any change in service. Thanks and reservoir are full.

Heggins: Our reserve is good for how many days?

Bailey: We have three-to-four-day supply of water.

The exchange continued and the city emerged from the November flooding OK, but it’s clear this is a matter that concerns a large swath of the population in Rowan County — anyone who receives water from Salisbury-Rowan Utilities.

For bodies like the Salisbury City Council, the state defines an “official meeting” as an “assembly, or gathering together at any time or place or the simultaneous communication by conference telephone or other electronic means of a majority of the members of a public body for the purpose of conducting hearings, participating in deliberations or voting upon or otherwise transacting the public business within the jurisdiction, real or apparent, of the public body.” Whether or not council members intend to vote on something is not necessary.

Is the gathering of council members in a text message thread sufficient to fit the state’s definition? That sounds like a good debate for attorneys in a courtroom, but we’d be inclined to say, “Yes.”

Of course, city staff might reasonably ask, “How are we supposed to notify the public about a text message thread?” City officials could add a reporter to the text message thread, but then how would the Salisbury City Council go into closed session when it’s allowed? It’s complicated — and certainly not a matter only Salisbury faces. It’s a matter facing all elected officials.

Technology has allowed local government to continue the public’s business even as a pandemic brought recommendations against gathering in groups. Policy makers at the state and local level, however, must consider how technology might be shutting the public out from important discussions.