1.  Establishing and Managing Use of an Online Message Board

2. Jerikay (JK) Gayle City of Austin Assistant City Attorney, Senior 512. 974. 6485 jerikay.gayle@austintexas.gov

4.  Question: Do we have a quorum on the forum?  Answer: Mmeh. Fugetaboutit. What’s it to ya? Who cares anymore? Not us government lawyers.

8.  Way back when: Roman Forum – public square of the city; center of legislative and business affairs; and the principal place of assembly.  Heretofore: Governing bodies could only meet in a properly posted meeting under the Texas Open Meetings Act.

9.  Now: TOMA was amended in 2013 to allow a governmental body to own one online message board on which members of the body can communicate between and outside of meetings without violating TOMA.

10.  What it is: Statutes (enacted to benefit the public rather than governing bodies) that mandate open public access to all non- excepted meetings of governmental bodies.  Where it is: Codified in the Texas Government Code, Chapter 551.

11.  What it says: Requires that every meeting of a subject body, with certain narrow enumerated exceptions, be open to the public, and posted with notice of time, place, and subject matter of items to be discussed, and memorialized with a record.

13. A verbal exchange among a quorum of the body … ▪ “verbal” also means “non-verbal” texts or emails or interactions [courts and AG]. … or between a member of the public, or staff, and a quorum of the body … … during which at least one member of the body is participating in a deliberation of public business over which the body has had, has, or will have control.

16. ▪ the smallest number of members required to conduct business ▪ a simple majority of the members of a governing body

19.  Determining a quorum is not as simple as just counting heads.  Members don’t have to all be in the same room at the same time to ultimately constitute a quorum.  “Safe” numbers can meet, but then can’t subsequently bring others into the conversation.  Forwarding or copying all members on emails can constitute a quorum.

22.  H.B. 2414 (effective date June 14, 2013)  S.B. 1297 (effective date September 1, 2013)  Codified at Government Code § 551.006:

23. (a) A communication or exchange of information between members of a governmental body about public business or public policy over which the governmental body has supervision or control does not constitute a meeting or deliberation for purposes of this chapter if: the communication is in writing; the writing is posted to an online message board … that is viewable and searchable by the public; and the communication is displayed in real time … on the online message board … for no less than 30 days after the communication is first posted.

24.  Governing body may have only one message board, and must own or control it.  Message board must be prominently displayed on primary web page, and be no more than one click away from primary web page.  Message board may be used only by members of the governmental body or staff members of the body who have received specific authorization from a member of the governmental body.

25.  Name and title of the poster must accompany the communication.  Any posting taken down after 30 days must be maintained for 6 years, and is subject to the Public Information Act.  Governmental body may not vote or take any action that is required to be taken at a meeting under TOMA.  No posting is to be construed to be an action of the governmental body.

26.  To allow previously-prohibited communication by and among members between traditional posted meetings (online);  To encourage enlarged discussion to facilitate more informed decisions;  To maintain the public’s right to have open access to fully transparent information.

27. Sept 2013 City passed Resolution 20130926-073Resolution 20130926-073 Oct 2013 – March 2014 Requirements Gathering & Research April – May 2014 Implementation & Configuration June – July 2014 Testing & Launch Training for Council Offices July 2014 – Present Ongoing Support & Administration Archiving of Inactive Topics

28. 

34. Total number of views: 165,800+ Total number of topic threads + replies: 549 Total number of users: 45 Council Member Accounts: 11 Current topic threads: 233 Staff Member Accounts: 28

35.  “The message board has become a critical and essential way for our council to communicate with each other. It is the only way for a majority of the council to communicate outside of a publicly posted meeting, and there is a great need for a forum for such communications.” Mayor Steve Adler  “It has given us the opportunity to advance issues and draft language in advance of meetings which saves time, making us more efficient and leading us to better and more developed results.” Mayor Steve Adler

36. “Now they can have those discussions on the Internet and you get to watch what happened.” - David Escamilla

37.  Begin with a basic but well-supported online forum tool that: meets all requirements; has wide adoption; is relatively easy to acquire and configure; doesn’t cost much ($228 per year + purchase and renewal of domain).

38.  Have your IT folks figure out how many people will be dedicated to this project, and how many will be dedicated to support and maintenance.  Consider what will happen if your hosted solution becomes unavailable, and determine how you will capture the records.  Do not leap into the quagmire of monitoring or reviewing the content of other websites that are linked to from posts; no fixing broken links.

39.  Create a “Terms and Conditions” form for requesting that an account be set up, which should include sign-off by the individual member and by the presiding member.  Create a “User Guide” … and train on it.

41.  Do not allow any user to have any capacity whatsoever to edit or delete any communication after it has been posted. This prohibition should include attachments as well.  Posts are subject to records retention and are obtainable under the Public Information Act.

42.  Allow users the ability to create new topics or threads.  Allow users the ability to comment on a thread or reply to another user’s comment in a thread.  Configure so that new topics or replies move a thread to the top of the list.  Do not allow users to send private messages to other users through the message board website.

43.  Disable all the bells and whistles and neat features on the message board, lest your members be accused of polling or voting.

44. YOU ARE NOW FREE TO MOVE ABOUT THE CABIN.

45. Jerikay (JK) Gayle City of Austin Assistant City Attorney, Senior 512. 974. 6485 jerikay.gayle@austintexas.gov