City Council Study Session Agenda and Packet 2016 01 12

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Therefore, if the e -mails involve 3 or more Council or committee members and "discuss pending legislation or other public business" or are part of the policy making process, then the entire panoply of requirements in § 402, including public notice, minutes, and open records requirements, will apply to such communications under the terms of the statute. As a reminder, e -mails should never be used to discuss the substantive aspects of a quasi - judicial matter, as those discussions should take place only during the quasi - judicial hearing. 2. The likelihood that e -mail communications will be deemed to be a "meeting" under the CML increase substantially if a mechanism such as instant messaging is used. The OML defines a "meeting" as "any kind of gathering, convened to discuss public business, in person, by telephone, electronically, or by other means of communication." C.R.S. § 24 -6 -402 (1)(b). This definition is likely to encompass instant messaging, particularly in light of its real time nature and back - and -forth discussion. Instant messaging falls under the definition of "electronic mail," with all the attendant consequences noted above. Although the OML does not define "electronic mail," the closely related Open Records Act does. "Electronic mail" is: An electronic message that is transmitted between two or more computers or electronic terminals, whether or not the message is converted to hard copy format after receipt and whether or not the message is viewed upon transmission or stored for later retrieval. "Electronic mail" includes electronic messages that are transmitted through a local, regional, or global computer network. C.R.S. § 24 -72 -202 (1.2). Some municipal attorneys have taken the position that because a meeting is described as a "gathering ", this implies that in the e -ail setting the communications must occur in a chat room format or otherwise be very contemporaneous in order to constitute a "meeting." Although no appellate case has addressed this issue directly, one of the improper meetings in the Colorado Off Highway Vehicle Coalition case was an email exchange, suggesting that it may be deemed a meeting even if it does not occur in a chat room or similar setting. Accordingly, the more prudent course is to not use e-mails to discuss items that are part of the Council's policy- making process. These limitations and requirements of the OML should be kept in mind when discussing public matters via e -mail. Attached to this handout is a very useful memo from Sam Light summarizing the "do's" and "don'ts" of using e-mail. Sam's guidelines should be followed by elected, as well as appointed officials. Page 17 of 26