Attorney: Teton County elected officials’ text messaging is ‘concerning’
Attorney: Teton County elected officials’ text messaging is ‘concerning’
By Billy Arnold
Jackson Hole News&Guide
Via Wyoming News Exchange
JACKSON — Teton County commissioners have been texting with each other, town councilors and members of the public during meetings about northern South Park — a digital behavior worrisome to some commissioners and a Wyoming lawyer specializing in citizen access to government.
The News&Guide submitted a public records request in late August seeking correspondence to and from members of the Teton County Board of County Commissioners over email, text messages and social media accounts during meetings about the area the Gill and Lockhart families hope to develop for housing.
The request spanned meetings from May to August, and revealed that, on occasion, Gill family representatives had communicated digitally with commissioners during meetings.
The paper trail also revealed a culture of texting among county commissioners, as well as between commissioners and town councilors during meetings with the Jackson Town Council.
Some elected officials see that as problematic.
“It should be concerning,” Commission Chair Natalia D. Macker said.
Others say it’s just part of the process.
“There’s always been some sort of a dialogue behind the scenes that happens,” Commissioner Mark Barron said. “I don’t think any of that has had any effect on the public process.”
Cheyenne attorney Bruce Moats specializes in protecting public access to government and has represented the Jackson Hole News&Guide in cases regarding open meetings and public records.
Moats said texts sent between members of the County Commission and Town Council could be a “violation of the spirit, if not the letter,” of the Wyoming Public Meetings Act.
First passed in 1973, the law ensures that the government conducts its business in an open and transparent manner. The act applies whenever a quorum, or a majority of the members of an elected board, is present, digitally or in person. The law prohibits meetings from being “conducted by electronic means or any other form of communication that does not permit the public to hear, read or otherwise discern meeting discussion contemporaneously.”
That’s the part of the law that has Moats concerned about elected officials’ digital habits.
“They’re not supposed to hold a meeting via electronic communications if the public is not able to hear or observe the discussion,” he said. “The fact that they’re having a discussion, an electronic discussion — then the people aren’t able to observe that.”
The Gills’ representatives have privately communicated with members of the county commission during meetings in July and August. The bulk of text messages unearthed in the News&Guide’s records request came during an Aug. 24 voucher meeting when the commission was discussing a request for proposals for a consultant for the forthcoming neighborhood planning process.
Planning staff had coded the neighborhood planning process as a zoning map amendment. Gill spokeswoman Liz Brimmer and attorney Amberley Baker said in an interview that they texted commissioners because they were questioning whether planning staff had started that process.
“That’s a huge deal, and it requires notice,” Baker said. “We better be texting, going ‘Are we going to get to make public comment? What is this?’”
Planning Director Chris Neubecker said planners had not filed a zoning map amendment, and instead were using the “ZMA” coding Brimmer and Baker were concerned about to track the neighborhood planning process. Later in the meeting, planners changed the coding to “MISC,” which is generally used to track miscellaneous projects.
Neubecker reiterated that in an interview.
“It wasn’t a zoning map amendment,” he said. “We felt that the ZMA was the closest type of project for the plan, it didn’t necessarily mean that we’re proposing a rezoning ... just for the purpose of tracking the project in the computer, it needed to be assigned some type of number.”
Baker, Brimmer, planning consultant Susan Johnson and Nikki Gill got up at the meeting to express their thoughts about the zoning map amendment publicly. But texts from Baker, Brimmer and Johnson weren’t just about the zoning map amendment.
At a July meeting Baker sent information about the AR-TC zone — the zone the Gill family is pursuing in a rezone application — in a text to Commissioner Macker, who did not respond during the meeting.
During the Aug. 24 meeting, Johnson sent Commissioner Greg Epstein questions that, among other things, asked what aspects of the neighborhood plan would be discussed. Epstein gave a two-word response.
Aside from zoning map amendment-related concerns, Baker also suggested to Epstein that the commission include a St. John’s Health representative on the neighborhood planning steering committee. Epstein did not respond during the meeting. In a separate exchange with Epstein and Commissioner Mark Barron, Brimmer made a comment about somebody having an “agenda to protect infill.” Barron responded: “agreed.”
The News&Guide asked Brimmer and Baker why they chose to ask those questions and make those suggestions over text during a public meeting rather than through public comment.
“Communications are allowed, period,” Brimmer said. “And citizens have a right to communicate with elected officials, period. It is our right as citizens when government staff has not only a microphone but potentially their thumbs on the scales of a decision.”
Moats said the texts were “concerning”: “People who are trying to lobby, speak to a public body — they’re trying to affect their neighbors’ business and they should do it aboveboard.”
Moats acknowledged that you could make the argument that talking with a commissioner outside of a public meeting is kosher.
“What’s the difference here?” he asked, rhetorically.
Texting, he suggested, opens the door to having those conversations not just outside but privately during meetings, when a quorum is assembled publicly.
“There does seem to be a difference when it’s during the actual meeting when all of a governing body is assembled,” Moats said. “That’s when the decisions are actually being made.”
He also drew a line between elected officials receiving a message versus engaging in a back-and-forth text exchange during a meeting, finding the latter more questionable.
“That violates to me the spirit of the open meeting act,” Moats said.
Barron and Epstein did not engage in actual discussions with the Gill representatives during meetings, only offering one- or two-word answers, if any at all. Barron said he didn’t see his responses as a violation of Wyoming’s open meetings law, and Epstein said he didn’t see those exchanges as any different from an exchange that might happen during an interlude.
“I don’t think that that’s any different than if we took a five-minute break and one of them running outside or chasing me down and saying, ‘Hey, what about this, or this?’” Epstein said. “That can happen. So I don’t look at it as we’re running a meeting behind the scenes.”
Epstein said the Gills’ representatives have contacted him outside of meetings, but he argued communicating with them was no different than another member of the public.
“There’s no tricky business, nothing sneaky going on,” he said. “While I was getting information potentially from representatives from the Gills, I’m also getting emails and information from the [Jackson Hole Conservation Alliance] and my having conversations with neighbors in Cottonwood ... it’s all about getting a well-rounded perspective to make final decisions.”
Texts between the Gills and others like Jackson Hole Chamber of Commerce President and CEO Anna Olson, who let Epstein know she agreed with a point he raised during a meeting, were a small portion of the private messages the News&Guide received in its public records request.
On the whole, the request revealed that commissioners text each other during meetings and, when the Jackson Town Council is present, town councilors.
No text the News&Guide received in its request involved a quorum of either the Town Council or County Commission.
Instead the texts were primarily between two elected officials.
Some were related to technical issues, like texts between Commissioners Macker and Mark Newcomb when he was having difficulty logging into a virtual July meeting. But many were related to the matters at hand, including messages in which commissioners let each other know that they planned or wanted to make a specific motion. Some also discussed the finer points of language in a draft update to the 2012 Jackson/Teton County Comprehensive Plan about northern South Park.
At other times the commissioners and town councilors texted each other to express frustration with the conversations about the area, which dragged out over months, often resulting in heated exchanges between the two boards — and occasionally members of the same board.
“I can’t hear well enough to make an informed decision,” Commissioner Luther Propst texted Councilor Jonathan Schechter during a May 4 meeting. “This is frustrating.”
“Very much so,” Schechter replied. “It’s too damned piecemeal for my tastes.”
The fact that those conversations happened during public meetings where quorums of both boards were present concerned Moats because the public couldn’t see conversations about public business. Expressing opinions about the matter at hand and massaging policy, Moats said, “should be part of the discussion.”
Moats compared texting during a meeting to passing a note.
“In the old days if they were up there and passed a note .... that would sure raise everybody’s eyebrows,” the attorney said. “This is the same thing. It’s just much easier to do, and to do it without anybody really knowing it until you make the public records request.
“It’s meeting discussion, and so people ought to be able to observe that contemporaneously,” Moats added, tying his point back to Wyoming’s open meetings law.
But, legality aside, the attorney said the texting raises another question.
“Why do it that way?” he asked. “Why not let the public hear your discussion?”
Commissioners Barron and Epstein said they didn’t see much of a problem with the texting. Epstein maintained that he felt it was no different than talking with another commissioner during a five-minute break, and Barron said he felt that everything was “happening in the meeting.”
“Everything that is happening in the public meeting is happening in the dialogue, which is very public, and in the motions that are being made, formulated in the back and forth,” Barron said.
Epstein also said that some texts sent are just “snarky bulls--t,” like one he sent to Macker referring to Mayor Pete Muldoon as “King Pete.”
But Commissioners Macker and Newcomb said the board may have been too loose with their digital behavior.
Commissioner Luther Propst did not return requests for comment.
Macker said the prevalence of texting could be in part due to changing meeting formats.
“Technology is changing. Communication tools are changing,” she said, pointing to the COVID-19 pandemic, which has driven meetings into the virtual world. “I think the virtual meetings have created a context where it probably happens more because people are sitting with their devices.”
Newcomb acknowledged that he had texted councilors and commissioners during meetings.
“I’m realizing that that does probably violate the spirit of the open meetings law and that we probably shouldn’t do it,” Newcomb said. “And I don’t think I have any excuse necessarily for doing it other than that there are some items that I’m just very, very passionate about.”
Newcomb said the recent conversations about northern South Park have been frustrating, and that he used texts to try to move the discussion forward. He discussed language in the draft comp plan update with Commissioner Propst over text during a May meeting about the plan.
“Lately, I have felt like a lot of times we’re spinning our wheels in very frustrating ways,” he said in an interview. “I think I’ve let that get the best of me.”
Newcomb said he thought most of the discussions he’s had over text have come out during public meetings in the form of a motion or the like. But he said that some may not have.
Commissioners should talk about having a texting policy, Newcomb said, and possibly incorporate new policy into one of the board’s meeting standards. The idea, in his mind, is to avoid a slippery slope where digital conversations stay private more often than not.
Moats warned that citizens can’t fairly judge the performance of their elected officials if the public can’t see how they’re making a decision. What’s more, private text messages could mean that not all elected officials have access to the same information when making a decision, he said.
Difficult conversations are part of government, but history has shown that democracy leads to the best decisions when everybody’s involved, Moats said.
“Democracy can be tough,” he said. “It may not be the most efficient — the most efficient is a dictatorship.”