Madison City Council members are emailing or texting colleagues, lobbyists, staff and others during public meetings, raising questions about whether the state's Open Meetings Law has kept pace with changing technology.
The unseen flow of electronic communications — from the snarky and playful to real-time conversations on key matters before the council, including millions of dollars in public funds for redevelopment of the Edgewater Hotel or Overture Center — is revealed in records obtained by the State Journal under the state Open Records Law.
A review of 7,656 emails and hundreds of texts exchanged during council meetings from April 2010 through 2011 suggest awareness of the state Open Meetings Law, and no apparent violations of it.
But the records lay bare a previously unknown level of private communications at council meetings and suggest similar exchanges likely occur in other governmental bodies across Wisconsin, including the state Legislature. The records don't include comments made on social media such as Facebook, which present their own challenges to open government.
Some see emails and texts as an efficient way to manage council duties, and because the records are public, as more transparent than council members and lobbyists whispering in the corners of the council chambers.
Others see it as disrespectful to those attending meetings or watching on TV, flouting the spirit of the Open Meetings Law, and a slap at open government.
Several council members — including some who email and text the most — and City Attorney Michael May said the city should consider tighter rules.
The state would also benefit from such a review, others said.
Attorney Robert Dreps, an expert in the state's Open Meetings and Records laws, said evolving technology presents challenges to good government and that the public would benefit from more clarity on a host of issues, from a prohibition on elected officials doing public business on personal electronic devices to rules for what's appropriate in meetings.
"It would be beneficial to explicitly address this in the statutes," Dreps said.
The issue is vexing not only for the Madison City Council but for small and large governments across the country.
"This is a problem that's popping up everywhere," said Mark Caramanica, freedom of information director for the Reporters Committee for Freedom of the Press in Arlington, Va.
Violating spirit of the law
The city attorney and state attorney general discourage use of electronic communications between council members during meetings.
The spirit of the Open Meetings Law is to do business in the public eye, but the letter of the law is less clear.
State law bans the use of email and instant messaging to create a quorum capable of making decisions on government business, according to the attorney general. The city prohibits council members from electronic communication with each other during meetings on agenda items — unless the communication is saved as a public record and doesn't violate state law. City rules for keeping and accessing communications are so strong, assistant city attorney Roger Allen was honored by the Wisconsin Freedom of Information Council in 2009.
Still, no Wisconsin court has ruled whether the Open Meetings Law applies to the use of electronic communications in creating a quorum of a government body, experts said.
The result: Many council members have had conversations with colleagues — never reaching an illegal quorum — and with lobbyists, staff, constituents and others, sometimes as the subject of the exchanges was before the council, the records show. That was especially true with text messages.
Most emails dealt with schedules, information sharing and constituent questions, and a large volume were sent unsolicited to council members from the outside.
"It would be impossible to do our jobs efficiently as alders in 2012 without using electronic forms of communication," said council president Shiva Bidar-Sielaff, who emails and sends texts during meetings, knowing records are kept.
But others send few or no emails or texts.
"I think it's disrespectful to my colleagues and the public to be doing something other than listening and participating in the issue at hand," said Ald. Paul Skidmore, 9th District, who doesn't bring a computer to meetings.
The city didn't release 46 emails deemed personal and 138 protected as drafts, legal advice, spam or duplicates. Six council members provided the city attorney with texts — one member withholding 217 of them as personal. Eleven members said they had no texts, and three didn't respond.
Started with the Solomon case
The State Journal sought the communications after learning Ald. Brian Solomon, 10th District, exchanged emails with assistant city clerk Elena Berg largely not about city business during council meetings. The exchanges were part of a public record related to Berg's sexual assault and harassment claims against Solomon, claims that weren't prosecuted or substantiated by the city.
The city's recent release of emails and texts include messages about ordering pizza at late-night meetings or going out for drinks afterward, counting votes on hot issues, and desperate exchanges between council members, lobbyists and the public during debate over a narrowly failed effort on Nov. 15, 2011, to preserve $16 million in city assistance for the $98 million Edgewater project.
On that night, developer Robert Dunn, Downtown Madison Inc. President Susan Schmitz and others lobbied council members by text for the funding as deliberations unfolded.
Bidar-Sielaff pleaded by text with Ald. Lisa Subeck, 1st District, a swing vote, to support the $16 million — even though Bidar-Sielaff later cast her vote against the assistance due to opposition in her district. Subeck voted no, too.
Dreps, who has represented the State Journal in records cases, said it was unfortunate that some council members exchanged texts about the Edgewater decision but didn't debate the matter publicly.
"It's not fair to say they didn't have a debate, it's just that some of them had one in private," he said.
At other times, exchanges revealed personal animosities.
Ald. Chris Schmidt, 11th District, who befriended Berg during her conflict with Solomon, texted her about Solomon during the height of their tensions on Nov. 16, 2010, saying: "Ego. Arrogance. Want to destroy, must behave...It's hard."
Both Schmidt and Solomon voiced regret for communications exchanged with Berg and said they're supportive of examining city rules.
Mayor Paul Soglin, who leads meetings, on rare occasion sends brief messages through his phone.
"I would refrain from communicating with anyone on any subject before the council, other than a very procedural thing," Soglin said. "When you text and email, it's out there forever. Good government suggests we stay away from anything that could be questioned."
Electronic communication during Edgewater debate
Some of the Madison City Council's busiest electronic communication traffic came during deliberations on keeping $16 million in tax incremental financing (TIF) support for the $98 million Edgewater Hotel project, which began on the evening of Nov. 15, 2011. Here are some of the text exchanges involving Alds. Shiva Bidar-Sielaff, Chris Schmidt, Lisa Subeck, Bridget Maniaci, Steve King, and Mark Clear; Edgewater developer Robert Dunn; and Downtown Madison, Inc. President Susan Schmitz. The council heard testimony and asked questions of staff and the public but did not debate amongst themselves before the vote. The $16 million in funding failed on a 10-10 tie with the vote after midnight.
6:48 p.m. Bidar-Sielaff to Schmitz: "You need to convince Lisap."
6:55 p.m. Schmitz to Bidar-Sielaff: "Other suggestions?"
6:56 p.m. Bidar-Sielaff to Schmitz: "Weir, Johnson."
8:06 p.m. Schmitz to Subeck: "I know we already talked but this is a REALLY big deal! I hope u guys can figure this out! Thanks!
Just please don't let this slip through our fingers. Thanks."
8:24 p.m. Bidar-Sielaff to Clear: "Can't you convince Weier?"
8:25 p.m. Clear to Bidar-Sielaff: "Haven't had any luck so far. Jobs jobs jobs!"
8:26 p.m. Bidar-Sielaff to Clear: "Keep trying. She represents blue collar union members!"
8:26 p.m. Clear to Bidar-Sielaff: "Yup."
8:44 p.m. King to Bidar-Sielaff: "No matter what you have to do I'll still love you in the morning!
8:46 p.m. Bidar-Sielaff to King: "Thank you, Steve. I truly feel like crying. I do want the project to happen but can't get to the TIF yes given my district."
8:46 p.m. King to Bidar-Sielaff: "You are the best!!!"
9:01 p.m. Bidar-Sielaff to Maniaci: "Lisa still a no??"
9:01 p.m. Bidar-Sielaff to Schmidt: "I just want to cry."
9:04 p.m. Bidar-Sielaff to Subeck: "Still a no?"
9:07 p.m. Schmidt to Bidar-Sielaff: "It will be all right. The worst case scenario for you is not as bad as you fear, and you'll have backup from me and others.
9:08 p.m. Bidar-Sielaff to Schmidt: "What is the worst case scenario?"
9:22 p.m. Schmidt to Bidar-Sielaff: "The cadre goes after you for awhile, but runs out of steam over the next 18 months and your basic awesomeness prevails and you get no opponent."
9:25 p.m. Bidar-Sielaff to Schmitz: "Did u talk to Bob?"
9:27 p.m. Schmitz to Bidar-Sielaff: "yes."
9:28 p.m. Dunn to Shiva Bidar-Sielaff: "Help!!!"
9:32 p.m. Bidar-Sielaff to Dunn: "I can't always carry it all on my shoulders. I have really done nothing but help…"
9:44 p.m. Schmitz to Subeck: "None of this 'smells' right. R there promises being made? I have never had such a bad feeling about peoples' intentions and that is hard 4 me 2 swallow. This could be so harmful to the city & its process. Thanks."
Subeck to Schmitz: "Not that I know of."
Schmitz to Subeck: "All the major organizations, the hospitals, UW, the letters — this will not work well 4 getting things done in the future. I can't believe how frustrated and sad I feel for our city. :("
9:58 p.m. Maniaci to Bidar-Sielaff: "Presumably."
9:58 p.m. Maniaci to Bidar-Sielaff: "Not getting much out of her."
10:06 p.m. Bidar-Sielaff to Subeck: "Please help me now!"
10:36 p.m. Schmitz to Subeck: "Sorry u r in this spot. This is about an agreement with the city that was made by the Council — not by the Mayor."
11:15 p.m. King to Bidar-Sielaff: "I am kind of regretting my support of Lisa."
11:17 p.m. King to Bidar-Sielaff: "She didn't even consult me about the other southwest side amendments."
11:18 p.m. Bidar-Sielaff to King: ":-(("