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Legal Q & A

 


The Pitfalls of Email Use
and the Role of the Mayor
Under the Faulkner Act


Deborah M. Kole
League Staff Attorney
books
D. Kole

Q Our municipality has become computerized, and we on the governing body have been using email extensively to communicate between meetings. However, I just read that the use of email in government has all kinds of legal issues and pitfalls. Is this true, and if so, what are these issues?

A The advent of email for communication has been a boon for the business of governing as it has been for all businesses and organizations. It is convenient and fast, and most of us have grown quite dependant on it in a relatively short time. However, in availing yourselves of this wonderful modern tool, it is important for municipal officials to remember some important concepts about using email in municipal government.

The ease and apparent informality of email can lull people into feeling like they are having a casual conversation while they are using it. However, in reality, when you use email to discuss municipal matters, you are producing a public record, just as you are when you write a hard copy letter, memo or other document. Any member of the public can obtain a copy of such an email unless it comes under one of the exemptions in the Open Public Records Act. Therefore, do not put anything in an email that you would not put in a letter or memo on the same subject.
In other words—THINK BEFORE YOU CLICK!

Also remember that an email concerning public business is a public record no matter where you send it from or where you receive it. It is the subject of the email that matters, not its location. Such electronic messages sent from or received by your home computer, if they concern municipal issues, are available to the public just like the ones sent or received at the municipal building or at your office.

Information concerning the Open Public Records Act and its exemptions can be accessed at
www.state.nj.us/grc/public/

You must think before you delete, as well. The New Jersey Division of Archives Management rules governing the retention of public records apply to electronic public records as well as hard copy public records. Detailed information on this subject can be accessed at
www.state.nj.us/state/darm/links/circular-letter-03-10-st.html

Suppose you are a member of a five person governing body. If you email one of the other members about a municipal issue, and she responds, you have created two public records, with the attendant issues. However,

 

 

if she responds and forwards both emails to a third member, who responds to both of you with his opinion, not only does the Open Public Records Act come into play, but the Open Public Meetings Act may be violated. Because a quorum of the governing body, enough to make a decision or to act, are discussing a municipal matter, you may be found to be holding a public meeting without properly noticing or inviting the public.

Even if no action is taken pursuant to the emails, and the matter is later acted upon at a properly noticed open public meeting, the formal action can be viewed as something that was improperly decided in private and “rubber-stamped” in public. Remember that the Open Public Meetings Act can be violated even if its requirements are literally met, but its policy of ensuring that government acts openly is circumvented by such “secret” preparations.

As long as you remember the issues involved in its use, email can be a wonderful tool for municipal officials. Just remember, if you have any questions about the OPRA or OPMA consequences of an email exchange, be sure to check with your municipal attorney. You don’t want to click or delete yourself into a problem.

Q What are the powers of the mayor under the “Council Manager” form of government in the Faulkner Act?

A The mayor in this form of government has very limited power. NJSA 40:69A-87 provides that the Mayor 1) presides over council meetings, where he or she has a voice and a vote, like any other council member 2) fills vacancies on the board of trustees of the public library, and on the board of education in communities which have appointed boards and 3) executes bonds, notes, contracts and written obligations on behalf of the municipality. The statute goes on to make it clear that these are the only powers and duties he or she has. The Mayor, however, is one of the members of the Council and shares in the legislative and policy-making powers of the Council acting as the Governing Body of the municipality. The Council appoints the Manager, who serves as the Chief Executive of the municipality. Think of the Council as the Board of Directors, the Mayor as the Chairman of the Board and the Manager as the CEO.

This column is for informational purposes only, and is not intended as legal advice.

 

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