It Seems We'd Hire John Quandt for His Math Skills

Um, (0.00 / 0)

I warned some folks last year, including city council members that Jaffe's listserve could cause some problems. Seems those problems have caught up with them.

My issue, and I wouldn't bring it up again, if it wasn't public knowledge, is that Jaffe's listserve can be construed as a public meeting or hearing if he uses it to put out a request for information, and then takes that information and enters it into a public record. And of course, once you do that, certain laws kick in.

Now, I'm all for transparency and openness in government, and I think that listserves are a great tool for government to do its work. But when you have a list that serves a quasi-public role, owned and operated by a private individual, you run into all sorts of grey areas, and you need to proceed cautiously.

The incident that provoked my interest (and ire) was during the CIty Council proceedings on the Performing Arts Center. Jaffe offered his opinion, held discussions, and asked for input from subscribers on his list, and then proceeded to print them out and enter them into the public record (or something very similar to that). This amounted to, in my mind, a de facto public hearing.

You can take the rest from there.  

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by: JC @ Wed May 20, 2009 at 20:07:24 PM UTC

Huh? (0.00 / 0)

1. What about the listserve isn't already public?
2. How does the listserve qualify as a public meeting?

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by: Equo ne credite @ Wed May 20, 2009 at 21:31:13 PM UTC

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the listserve (0.00 / 0)

is hosted on a private business. One owned by the Councilman. No problems with that. In fact it is a good thing what Jaffe is doing in that respect, communicating with his constituency.

But when a Councilman solicits comments on a privately owned listserve, and them prints them out and submits them at a City Council meeting as testimony, what he has done is hold an unannounced hearing, taken comments, then submitted it to Council. Not an open meeting, no public notice was given. Undue weight was given at the Council meeting from the testimony he had collected (in my view), which served to reinforce his opinion and vote.

Look, I support full utilization of the internet for public process. I just happen to think that there should be some rules governing how it is done. Particularly when a listserve bleeds over into the realm of public meeting law and regulations.

I brought my concerns to the attention of a Councilman, and laid out my reasoning a year and a half ago because I knew that eventually there could be some blowback. I don't want to see communications of any sort limited, in fact I would like to see it increased. But as far as I know, the issue didn't go anywhere, and I let it rest.

All the city needs to do is to examine the issue, and devise a sensible and legal policy. Don't forget that decisions at government meetings can be nullified if notification and open meeting laws are violated. And once the city issues some guidance on the matter--brings open meeting law and notification regs into the 21st century--it could serve to push the city into providing even more interactivity with the community over the internet. Which of course, I have a ton of ideas about.

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by: JC @ Wed May 20, 2009 at 22:45:03 PM UTC

[ Parent ]

So by your standard... (0.00 / 0)

is every conversation that a member of city council has with a member of the public where they request comment a public meeting?

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by: Matt Singer @ Thu May 21, 2009 at 16:16:50 PM UTC

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I'm not setting standards (0.00 / 0)

City Council and Committee meetings are public meetings.

Bob Jaffe had this to say on Nov. 13, 2007, on his listserve:

"This is a letter outlining some of my thoughts regarding the upcoming
committee meeting on the Performing Arts Center. I wanted to get some of it
out in advance as there will be limited time for everyone to speak at the
meeting."

Then he speechified for a bit, and said:

"In conclusion, what I am looking for is some confidence [about my position]..."

Then he followed up with:

"I would like to copy the comments submitted to the list today to the clerk as public comment. Many good points have been raised and I think it is important that they be entered into the record.

To me, that is holding a nonpublic, non-noticed public hearing, and stacking the record. Any right-winger could do the same with [pick your issue].

I don't want to set the standards. I'm not a lawyer. I just know enough about online technology and how public process works to know when there is a conflict--I've been doing this stuff for 20 years. All I did was ask Council to clarify processes and write some rules or regs to guide these sorts of discussions.  

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by: JC @ Thu May 21, 2009 at 20:26:11 PM UTC

[ Parent ]

Why I still think this isn't an issue: (0.00 / 0)

The listserve isn't a hearing. It's a medium by which information regarding a public, noticed hearing is distributed and collected.

Under your logic a Councilmember can't to write a letter to the editor of the Missoulian in which he or she solicits feedback in the form of letters to the editor.

What's the difference between the Missoulian and a listserve?

Also, you still haven't addressed the fact that, to my knowledge, the listserve is open to anyone who signs up, i.e. it is public.

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by: Equo ne credite @ Fri May 22, 2009 at 16:22:49 PM UTC

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It's not about the listserve (0.00 / 0)

It's about the Councilman's actions. The forum in which public comments are solicited, and then collected with the express intent of entering them into the public record is not the issue. The collection of comments by a Councilman and entering into the pubic record is the issue.

When an elected official, a member of a city council solicits, collects, and submits comments for the public record, how is that different from any other public meeting? What's to keep any of the other city council members from going back to their wards, holding a coffee or three-martini lunch, getting a bunch of their friends to sign protests, or what have you, and then go back to the PAZ committee hearing and enter them into the public record as being for, say, a zoning change to allow a gravel pit or noncompliant sign?

There's a reason why we have rules and regs on open meetings and notice. It's to keep individual lawmakers from controlling and manipulating the public process. The only difference in Jaffe's case from many other instances in which notice and open meeting violations may have occurred is the venue. In Jaffe's case it was using email via a listserve. The city council already has been shown to have violated open meeting law by sending each other emails during a hearing, and had to amend their procedures accordingly.

All I'm asking is that city council recognize that a private listserve is not a suitable vehicle for soliciting public comment with the intention of it being entered in the public record via hand delivery by a councilman.

I have no idea if Jaffe has continued this practice. I quit participating in his listserve when I determined that the venue was being abused.

But to answer equo ne credite's concerns:

1) Jaffe admitted that he was soliciting comment for the public record, and intending to submit it himself--not just announcing a public hearing

2) Your assertion about LTE's is silly. An LTE is not a comment entered into an official public record at a hearing.

3)  The Missoulian and the listserve are both privately owned entities, both are under editorial control of the owners, both can control who subscribes or participates, both can edit the content of posters. I'm not saying that Jaffe does so, but he has the power to do so.

4) A public listserve? Hardly. A public listserve, for the purposes of use by city council and for requesting the submission of public comment, would be owned by the city (or contracted out to an independent third party) and  guided by a public policy that complied with Montana's open meeting and notice laws and regs.

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by: JC @ Fri May 22, 2009 at 17:48:16 PM UTC

[ Parent ]