A new Court of Appeals case sheds some light on the previously unsettled question of whether the open meetings law applies to email exchanges between a majority of a public body. In NC Citizens for Transparent Government, Inc. v. Village of Pinehurst, the Court of Appeals evaluated whether a string of emails between a majority of a city council over several days implicated the open meetings law. The court ultimately held that the emails did not violate the open meetings law in this case. Read on for an explanation of the court’s reasoning and overall takeaways for local governments.

Facts

In September of 2021, the five-member Pinehurst Village Council held a special meeting to discuss the plaintiff’s (then Councilmember’s) potential violations of the Pinehurst Village Ethics Policy. Between October 8 and 12, 2021, the mayor, two councilmembers, the Village Manager, and the Village Attorney exchanged emails about the plaintiff’s alleged ethics violations, including circulating a draft resolution for censure. The Village Attorney sent an initial email to the mayor, manager, and two councilmembers. One of the councilmembers responded to the group an hour and a half later followed by the mayor, thirty minutes after that. The first councilmember responded again approximately two hours later, and the second councilmember responded twenty-four hours after the attorney’s initial email. None of the responses were long or detailed. Instead, they generally expressed agreement that the council should somehow address the plaintiff’s behavior and discussed logistical issues. These conversations continued in person at the regular meeting on October 12, but the Village never formally censured the plaintiff. He was not re-elected, and he subsequently filed this action in May of 2022, alleging that the emails between September 20 and October 12 violated the open meetings law.

The Court’s Conclusions

The Court of Appeals held that the emails at issue did not meet the “simultaneous” element required to trigger the open meetings law. The open meetings law establishes legally required public notice and access procedures for “official meetings” of “public bodies.” G.S. 143-318.10(a). Under G.S. 143-318.10(d), an official meeting is any simultaneous gathering of a majority of a public body where the body conducts a hearing, deliberates, votes, or otherwise transacts public business. The law explicitly states that official meetings may occur in person or via electronic means. G.S. 143-318.10(c).

The open meetings law does not define “simultaneous,” so the court examined how G.S. 166A-19.24 uses that word. Subsection (b)(4) of G.S. 166A-19.24 states that simultaneous communications must allow all members of a public body to hear and be heard by the other members and by the public. Subsection (b)(8) provides that all chats, instant messages, and written communications between members during a remote meeting are public record. In taking these two provisions together, the court concluded that the legislature considers emails to be governed more by public records law than by the open meetings law. After examining that statute and out-of-state case law, the court appears to hold that email communications generally cannot be simultaneous for purposes of the open meetings law. (See pgs. 7-8).

Despite this apparent blanket statement, a close analysis of the court’s reasoning indicates that the timing of the emails is the determinative factor. The court does not simply hold that, because the exchange occurred over email, no official meeting occurred. Instead, the court examines the timestamps of each email, noting how long it took each councilmember to respond. According to the court, “[w]hen limited communication takes place hours or days apart, it does not constitute ‘simultaneous communication.’” (See pg. 10). The court’s careful attention to the timing of each email indicates that Village of Pinehurst does not exempt all email exchanges from the open meetings law. Instead, the case leaves open the possibility that the open meetings law might apply to certain email communications, but the timing of responses is dispositive.

Lingering Questions

Even after Village of Pinehurst, email communications can still potentially be subject to the open meetings law if they involve a majority of a public body and if they are simultaneous. Whether the emails are simultaneous depends on the timing of the email responses. Perhaps the largest unanswered question from this opinion is how close together email communications must occur to constitute “simultaneous” communication. Being separated by hours and days is sufficient to defeat simultaneity, but what about mere minutes or seconds? It may be useful to analogize email communications with conversations conducted via phone or in person. During a phone or in-person conversation, it would be atypical to wait several minutes before responding to a question or statement, so perhaps a gap of several minutes is enough to destroy simultaneity. Unfortunately, the court does not provide specific parameters, aside from holding that response gaps of hours or days are sufficient to remove an exchange from the open meetings law’s purview.

In reaching its conclusion about the simultaneity issue, the court indirectly addressed the transaction of public business and majority for purposes of the open meetings law. These statements are likely dicta and don’t rise to the level of a binding legal holding, but they are notable all the same. First, the court seems to suggest that mere discussion of an issue, especially if no formal action is ultimately taken, does not constitute transacting public business. Since plaintiff was never formally censured and no censure vote was even taken in this case, “…the council members did not deliberate, vote or otherwise complete business via e-mail as an ‘end-run’ around mandated public deliberation as Plaintiffs suggest.” (See pg. 10). Instead, certain councilmembers and the mayor “…consulted with the Village Attorney and the Village Manager to ensure they were prepared for the next open Village Council meeting.” (See pg. 10). While this statement likely has no legal effect, it hints at a narrow understanding of what constitutes the transaction of public business under the open meetings law. The implication of the court’s logic is that a majority of a board consulting with the attorney and manager about a public matter does not constitute deliberating, voting, or otherwise transacting public business under the open meetings law. Therefore, such consultations theoretically could occur without public notice or access, even with a majority of the board gathered and discussing public business.  

Additionally, the court seems to pay attention to the volume of communications when deciding both the simultaneity and transaction of public business issues. The court states, “A council member who generates two e-mails containing seven sentences of less than ninety words over the course of five days is not engaging in ‘simultaneous communication,’ ‘conducting hearings, participating in deliberations, or voting upon or otherwise transacting the public business.’” (See pg. 10). The brief nature and small number of communications here seem to weigh against finding that the communications were simultaneous or that they were transacting public business. The open meetings law makes no reference to the volume or substance of communications when defining “official meeting”, so it is unclear whether or how this idea will translate to meetings in other contexts.

Finally, the court implicitly concludes that a “majority” under the open meetings law is a simple numerical majority or more than half of the total seats, including the mayor. That conclusion rejects the idea of an “effective majority,” which some School of Government scholars have argued can trigger the open meetings law. (This blog post explains that idea in more detail). The Village of Pinehurst Court does not analyze the voting power of the mayor or the councilmembers when concluding that three of five is sufficient for majority under the open meetings law, though that may be because the majority element was not in dispute.

Bottom Line

While Village of Pinehurst leaves several questions unresolved, the case makes clear that email communications occurring between a majority of a board over several hours or days do not implicate the open meetings law. Email exchanges that occur closer together still might trigger the open meetings law, though the court did not establish how close in time communications must occur to be simultaneous. As of this writing, no appeal has been filed, but we at the School of Government will be tracking this litigation closely.