Public Meetings And Private Texts Don’t Mix

A Peek Inside the Process

As a registered lobbyist I am prohibited from walking onto or sitting on the floor of either chamber of Virginia’s legislature while in session, and can get no closer than the desk at the front door or the benches in gallery.  If I wish to speak to a member during session the custom is to send in a business card and ask that legislator to step out to the hallway for a chat.

I might provide an answer to a question they raised on the floor, offer a draft of some amending language, ask for a copy of something they have or ask them why they cast that last bonehead vote (well, I’d be more polite.)  If I ask them to the door just to discuss trivia they will not come next time I ask.

But wait!  That was the rule in the dark ages!  Now all I have to do to communicate with members at the height of floor debate (or committee debate) is email them on their laptops, now present and open on every desk, or even better text their personal cell phone.  The downside is there is a chance they will miss it or ignore me (a good chance, normally, which is why I still use the hallway chat), but the upside is the message may remain in the ether and never be subject to the Freedom of Information Act.

The huge holes in the Virginia’s public meetings and public records law caused by the new communications options were highlighted in a FOI Advisory Council debate Tuesday covered by Graham Moomaw of the Times-Dispatch.  The case at hand involved local officers texting among themselves during a public meeting and hearing from a member not in attendance (but not plugged in by phone as provided by law).  You can compare it to middle school kids passing notes and giggling, but sometimes the real decisions are being made in total secrecy with the public cut out.  This is a way to meet in executive session on matters that could not be the subject of a proper executive session.

Missing from the story was the discussion of how this has also changed lobbying.  The original intent of that quaint rule about lobbyists on the floor has been blown to pieces for several years now, and direct lobbyist communication is probably continuous all session long.  Amendments and votes are discussed directly, and bill language is parsed or changed.  It would make fascinating reading.  We will never get to read any of it.

Communication on Facebook and Twitter and other platforms is also common but I suspect are considered far less secure.  Most people work on the assumption that texts to private phones are FOIA-proof unless somebody chooses to leak or forward them.  Apparently the advice given during the meeting was that is correct unless and until the rules are changed.

So change them.  The law should prohibit electronic communications during legislative sessions or other public meetings about issues on the calendar.  Absent that (and it would hard to ban all communication) open the messages to full FOIA disclosure.  It would be fine with me to prohibit any communication with lobbyists during meetings on those electronic platforms, or to subject those to FOIA.  It would not be fine with many of the other lobbyists.

Open meetings means open meetings.  If you have something to say to a colleague, speak into the mic or go find a corner and have that conversation quietly face to face (knowing all of us in the room can see it happening). If the trends continue, it is possible to imagine a meeting where all the real debate goes on with no spoken discussion at all, and the outcome is swayed by a last-minute text from a lobbyist which will never be made public.  I bet it happens already.

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8 responses to “Public Meetings And Private Texts Don’t Mix”

  1. They should have FB and other social media watched because elected officials will use it to get around FOIA also.

  2. LarrytheG Avatar

    Well communication is fungible as they say right? I’m not sure if there is any practical way to control or regulate any and all forms of communication with legislators. they’ll find a way to talk. they might have to use an aide to communicate maybe that’s what they already do but I just don’t see how you can stop completely what’s going on now it’s really a joke.

    1. Steve Haner Avatar
      Steve Haner

      Most of these process rules depend on self-policing by the members and only work if the consensus is there that the rule makes sense. It would be easy to adopt and enforce a rule against using texting or email to carry on a discussion privately during the actual open meeting, effectively turning it into an illegal executive session. It would be harder to shut down silent communication with the audience or lobbyists, and sometimes it is the office holder who starts the conversation, but I think it worth talking about. We can draw a line soon or wait for those silent meetings where the officials are just texting back and forth and saying nothing.

  3. LarrytheG Avatar

    I think some folks would want all communications noted.. including all txts…

    I thought that for Federal – all txts were also considered official communications – no?

    Yes.. I know there is a gigantic loophole between using your .gov account and your private account (which is essentially a private server maintained by an ISP rather than govt-maintained server.

  4. musingsfromjanus Avatar

    An excellent and I suspect prescient piece. I hope you will keep pressing this one.

  5. TooManyTaxes Avatar

    Virginia should adopt the federal government’s ex parte rules for contacting the agency on a matter under consideration. The substance of the contact with a legislator (I’d add an executive branch official in a policy-making position as well) must be reduced to writing and filed with the agency, in the case of the FCC, online. It’s all available for the public. A lobbyist communicates with Delegate A or Senator B and the public knows about it and the subject matter of the contact. The provision of specific language for an amendment, for example, would have to be disclosed.

  6. djrippert Avatar

    When I used to go to meetings at the Pentagon I often had to take all my devices with communications capabilities (I usually carry three) and put them in a locker outside the suite of offices where the meeting was held. If I forgot an alarm would sound as soon as I walked through the door to the office suite. I think the same approach would be appropriate for official meetings. Of course some of our esteemed legislators would be without their ability to stream Hee Haw reruns for a while but I think that’s a price worth paying.

  7. CrazyJD Avatar

    I’m thinking about a recent conversation on this blog about the use of police body cameras and the extra work caused by the massive amount of footage created. What is the impact of the proposals on this blog and elsewhere of retaining all this mostly useless information? How does anything get done when you have to get up from the dias, march over to the corner after you signal your colleague, and stand there and have a conversation, then march back to the dias. I don’t see anything wrong with trying to work a compromise with a guy on the other side of the aisle by text. Hell, there seems little enough dialogue between the sides as it is. Why would I have any dialogue if everything I say to the guy across the aisle is open to everyone? I don’t think I’m eager to be primaried for talking with the “enemy”

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