Those are a few of the words people are using to describe the private e-mail conversations some council members are holding during public Missoula City Council meetings.
People who sit through those meetings notice that councilors' eyes are often glued to their laptops and their fingers are tapping away. But tapping what?
City Clerk Marty Rehbein provided those communications, and the topics run the gamut. Councilors are “talking” about amendments. They're discrediting the public. They're scheduling lunch meetings and even making jokes.
Several e-mails sent during public meetings show a group of council members privately strategizing about matters on the agenda.
When the governing body took up the Pledge of Allegiance on Aug. 6, for example, Councilman Dave Strohmaier sent the following e-mail to fellow councilors Stacy Rye, Ed Childers and Marilyn Marler: “All, I called Jack (Reidy). He was wondering whether I would accept a friendly amendment to my amendment stating that any individual council member can request that the Pledge be recited. What do you think? Dave.”
The e-mails also show council members discounting testimony.
On Aug. 13, a citizen, Nikki Billingsly, spoke out against allowing chickens in the city limits. Billingsly said she feared for the life of her son, who is allergic to down. In an e-mail to Rye, Strohmaier and a researcher working on the chicken ordinance, Councilman Bob Jaffe wrote the following: “You should try to catch her comments at the opening of the council meeting from the MCAT recording. She was very dramatic. The zoning argument is not valid. She said we would be killing her child.”
Wrote Strohmaier to the same group: “The number of bogus claims was almost breathtaking.”
In one instance, a council member also discounted a colleague. On Aug. 27, Marler sent the following note home to her husband: “Now we are in Council Comments and Hendrickson (Councilman John Hendrickson) is giving a sermon. He never quits.”
Councilors and other city officials also do housekeeping - sometimes literally.
City Clerk Rehbein e-mailed this note to councilors and city officials around midnight on Aug 6: “I'd really appreciate it if staff and elected officials could please recycle your papers, throw away your opened water bottles and push in your chairs after council meetings. It would help me out a bunch! Please leave unopened water bottles on the table, and I'll collect them to put out at another meeting. Thanks!”
Council members who hold e-mail conversations during meetings say it's an efficient way to do business, and argue that city government is wide open to the public - evidenced in part by the availability of the e-mails themselves. E-mails are part of the public record available to any citizen who asks. However, it may be several days before they're available.
Onlookers say the practice is - at the least - just plain rude. And legal and political scholars say if the secret discussions don't technically violate Montana's open meetings laws, they most certainly breach their intent.
Clem Work, a professor and legal scholar at the University of Montana School of Journalism, said e-mail seems to make it possible for two meetings to take place at the same time. But the public doesn't get a chance to participate in the meeting taking place by e-mail because they don't get to hear or see the interchange of ideas.
“I think council members sending e-mail messages back and forth to each other during City Council on any substantive matter whatsoever certainly violates the spirit of open meetings laws,” Work said.
Not every note is pertinent to a public discussion, though. Take Rehbein's request to tidy up. Council members also handle mundane items of business, letting each other know of upcoming absences and telling spouses they'll be home late.
“We're going to be here all night. Don't wait up. We're still on chickens,” wrote Marler during one long meeting.
Work gives councilors a pass on communications that don't pertain to the public's business - “Your wig's askew” - but said even those should be limited.
“For practicality's sake, one might want to cut down on that because one is paying less attention,” Work said.
Among the communications sent during August meetings, jokes and catty comments were also the norm. Here's part of a round robin of e-mails sent Aug. 27, when chickens were on the City Council menu.
Strohmaier kicked it off: “Planned chicken cluster, anyone?”
Rye: “Chicken cannibalism? Hopefully they won't get stuck going up Donner Pass.”
Childers: “Chickens don't have teeth. Likes ducks, not chickens? Ducks in town?”
Kendall: “I think we have inadvertently been trapped in an Onion article.”
Strohmaier: “I love this stuff!”
Said Work in an interview: “How about acting like grownups and attending to business?”
It's only been in recent years that electronic communication has become ubiquitous. Mike Meloy, whose Helena law firm provides legal advice on freedom of information questions, said he knows of no case that speaks directly to whether e-mails sent by members of a governing body during a public meeting violate the open meetings law or the constitution.
But part of Montana's open meetings law says bodies can't avoid the precepts of open meeting rules by breaking themselves up into entities that are smaller than a quorum, Meloy said.
A legal analysis would address whether communications by e-mail should be subject to open meeting rules, or a provision of the state constitution that requires government entities to permit people to observe their deliberations.
“I think a real good argument could be made that when they start having their deliberations by e-mail where the public can't observe them, they're violating the open meetings law and constitution,” Meloy said.
Meloy said the right thing to do would be to either ban e-mail communications during meetings or broadcast them on a big screen so everyone can see them. However, he said a court hasn't ruled on the question.
Broadcasting e-mails might well cut down on some messages, including incoming ones. During one meeting, Marler received the following note: “What is the dumbest thing one of the morons said?”
Jim Lopach, chairman of the Department of Political Science at the University of Montana, called for common sense. If people in a group see others whispering, they feel excluded and figure the communication might pertain to them but is being kept secret, he said. The same applies to councilors sending e-mails.
“I think it's unwise that council members do that and possibly illegal that they're doing that,” Lopach said.
Lopach, though, said he'll leave the legal opinion to Missoula City Attorney Jim Nugent, who already has been besieged with requests from council members for an opinion on the subject.
“It is a concern - especially if it's substantive deliberations,” Nugent said.
While he had not issued a formal opinion on the matter last week, Nugent said government needed to err on the side of making sure the public has an opportunity to observe deliberations and participate before decisions are made.
Mayor John Engen presides over meetings of the council, and said he would let council members decide what to do. He wouldn't tell them what to do, though.
“Council doesn't work for me and I don't work for council,” Engen said.
Council members can ask to caucus during meetings, though Engen said he only saw that happen once when he was a councilman. He himself has stopped bringing his laptop computer to meetings because he found it distracting.
Engen said election time may have something to do with the dissatisfaction some council members have voiced over the practice. Everyone is willing to engage in righteous indignation when it serves a purpose, he said.
He also pointed out that e-mail isn't the only form of private communications council members rely on during public meetings: “There are folks who write notes to each other all night long.”
E-mailing council members defend their communications as expedient, and say the public has ample access to city government in Missoula. E-mail allows them to quickly vet an idea among trusted colleagues to see if it would survive on the floor, they say.
“There's not enough hours in the week to talk to death about everything,” Rye said.
She said the exchanges are a form of caucusing, and it's helpful to bounce ideas off other members of the group. Eventually, the e-mails emerge on the floor as amendments or motions, and the public has plenty of opportunity to comment then.
If the e-mails were sent on private accounts rather than public ones, that would be improper, she said. But the e-mails are sent on public accounts and are available to the public. With MCAT airing the meetings and government documents readily accessible online, the process is wide open, said Rye, who considers Missoula a model of open government.
“I think we should be pretty proud of that, actually,” she said.
Strohmaier said it's no secret that the council is polarized, and some of the e-mails are designed to see if an idea can get traction among a group of council people when it hits the floor.
And discussions happen frequently outside of City Council meetings, too. He said he does not see a distinction between private deliberations by less than a quorum of council members at Sean Kelly's and what transpires by e-mail during a public meeting.
“The point being deliberations occur anywhere and everywhere. And much more significant deliberations may be occurring outside the confines of that chamber. I mean, much more. I can't emphasize that any stronger,” Strohmaier said.
He and Rye echoed Engen's observation that council members who don't e-mail during meetings certainly communicate in other ways. There are notes, nods and whispering.
“There's a bit of the pot calling the kettle black on this,” Strohmaier said.
Rye said some council members meet for pie and coffee at Finnegan's after council meetings: “Is that any different? I don't think it is.”
Councilman Don Nicholson, who is among the folks who don't e-mail during meetings, said he believes there's a big distinction between gathering after council and privately communicating at the meeting.
“It's different in that it's not during open meeting time. And that's a significant difference,” he said.
Nicholson agreed that folks who don't or won't send e-mails aren't above communicating in other ways during meetings. He admits to leaning over to fellow Ward 2 representative Hendrickson and asking questions during meetings: “We do that quite a bit. And I don't know if that's an illegal communication or not, frankly. Maybe it's just as bad as what they're doing.”
Hendrickson admits he and Nicholson write notes during meetings, too. Before a vote, they scribble down numbers predicting vote outcomes, he said. He also asks for clarification if he hasn't heard something.
But Hendrickson reviewed the e-mails sent by his colleagues and said he was surprised at how extensive the electronic discussions were. He said he has sent maybe one or two e-mails during meetings, and never about agenda items. The e-mails he read, though, were more substantive.
“They're holding another whole meeting amongst themselves,” Hendrickson said.
Nicholson said some of his non-e-mailing colleagues want to dredge up more e-mails sent during meetings where more controversial topics were on the agenda. He doesn't, though. He just wants the private conversations to stop.
Folks in the audience at Missoula City Council meetings probably wouldn't complain if the e-mailing stopped. People who appear before council to give testimony have noticed that council members' attention is often trained on their computers. While some found the behavior discourteous, they also figured councilors were only looking at documents.
“If there is discussion back and forth, that's a concern. And if they need to discuss back and forth, why don't they just go into a caucus?” said Nick Kaufman, a planner who frequently appears before council.
He said if council members receive testimony by e-mail during meetings, people in the audience need to know what it is so they can rebut it if they want. Perhaps those e-mails need to be read into the public record, he said.
No one has been quixotic enough to demand that computers be banned altogether. Council members use them to pull up maps and pertinent documents. Kaufman said they improve the flow of information, but there's a question.
“What is the appropriate use of e-mails during a public hearing?”
Geoff Badenoch, a former city official and familiar face at council meetings, said sending e-mails during meetings is improper. Council members could be planning their political strategies and trading votes by e-mail.
“That's the worst-case scenario. But how would you know? How would you know if that was going on?” Badenoch asked.
He said the public deserves the opportunity to see the logic behind council members' decisions and watch the debate unfold. Privileged communications don't serve that purpose.
“Somehow, it doesn't seem right to me. Before they had computers, they didn't do that,” Badenoch said.
People who often sit in the audience say the practice is at least discourteous to people who show up in person to give testimony. It's talking, albeit electronically, while someone else is talking, said Joe Gorsh, a neighborhood leader.
“I think it's kind of rude, and I don't think it's quite right,” Gorsh said.
The exchanges make him wonder if council members also are organizing votes by e-mail. He likes the idea of rotating roll call votes where different council members vote first. With e-mail, though, he wonders if the roll call tradition is meaningless.
Some argue that curbing e-mails during meetings or demanding they be available will have a chilling effect on discussions. An unintended consequence could be slowing down the work of government.
Scholars say democracy isn't about expediency, though. In a democracy, society doesn't sacrifice efficiency for openness, Meloy said.
“So that argument is worth maybe a half a cup of Starbuck's coffee - cold Starbuck's coffee,” Meloy said.
Lopach said the governmental system values open meetings and public participation far more than efficiency: “As a political scientist, I can say without a doubt that efficiency is not one of the key values of the American governmental system.”
City Councilman Jon Wilkins reviewed the e-mails his colleagues sent, and during last Monday's regular council meeting said he believed the exchanges were a violation of his and the public's constitutional right to participate in government. Subsequently, councilmen Ed Childers and Jerry Ballas asked City Attorney Nugent for an opinion. Wilkins also asked the council Committee of the Whole to take up the matter.
Reporter Keila Szpaller can be reached at 523-5262 or at Keila.Szpaller@missoulian.com
To read Missoula City Council
Click here to view Missoula City Council e-mails sent during council meetings in August.
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