A few years ago, a British Columbia Ombudsperson’s report expressed concerns about a somewhat common practice of municipal councils and boards.

A portion of the report addressed commonly held public perceptions that too many decisions are made away from duly constituted and properly advertised public meetings. The Ombudsperson’s report raised the question of: ‘What is a Meeting?’

From a purely technical angle, the issue of ‘What is a meeting’ can boil down to a legal question: If a citizen formally challenged the validity of a decision, on the grounds that it was substantially made away from an advertised open meeting, might a judge be persuaded to invalidate this decision?

Given that I am not licensed to practice law, I am not qualified to address the above legal question. However, I will address the core issues from a practical perspective, by applying tests of reasonableness and common sense, and by relying on a few pragmatic yet powerful principles. The key question I will address is: What levels of interaction away from an advertised open meeting could be reasonably perceived as constituting ‘an unadvertised meeting’ and should therefore be avoided?

Let me start with the basic requirement. With the exception of confidential items (which are dealt with during closed meetings), public bodies are required to make their decisions during duly advertised open meetings. This principle seems to suggest that board or council decisions should not be materially advanced or arrived at while away from a duly constituted and properly advertised open meeting. The open meeting requirement is intended to promote honest, transparent and accountable government, and to build public trust. Under it, the community is provided with notices of meeting agendas, and citizens are thereby able to make informed decisions on whether to attend and observe the proceedings. They can also request to speak to the public body, as per the procedures that govern public comment periods.

Next, let me introduce a practical tool that can help you assess whether an informed citizen might reasonably perceive a certain gathering to be an unadvertised meeting. The tool I propose is that elected officials function as though they are always under the public microscope (whether they are at an open meeting or not). With this tool in mind, the question is: Suppose some reasonably informed and principled citizens were able to zoom in through the public microscope and fully listen to a conversation that occurs away from an open meeting. Might they reasonably perceive that this conversation is substantially advancing specific decisions? If so, might they reasonably perceive that any debate at a subsequent advertised open meeting would be a meaningless exercise, amounting to tokenism?

With the ‘public microscope’ as a tool, let us examine five examples of unadvertised gatherings of elected officials.

Example 1: A significant number of members of a public board (a quorum or more) are observed at a bar, engaged in a lively conversation. The imaginary public microscope zooms in and picks up a heated discussion about contentious current issues, with strong views expressed in favor of and against certain specific proposals. Would the observing citizen reasonably conclude that this gathering is, in effect, a meeting of which the public was not duly notified, and which may therefore constitute a breach of the open meeting requirement? I believe a reasonably informed citizen would reply in the affirmative.

Example 2: A few members of a public board (less than a quorum) meet in private. The public microscope zooms in and the listener picks up a plot to achieve majority support for a motion that one of the participants plans to originate. The public microscope then follows each participant home, and zooms in on each of them making phone calls or sending emails to board members outside the small group, successfully lobbying enough of them to vote yes, and subsequently achieving the passage of the desired motions (at the next open meeting). Would the observing citizen reasonably conclude that the decision making process was substantially advanced, that the small initial gathering and the subsequent lobbying were, in effect, ‘an unadvertised meeting’, and that this may have breached at least the spirit of the open meeting requirement? I believe a reasonably informed citizen would respond in the affirmative, and the fact that less than a quorum was involved in the initial plan would have no bearing on this assessment.

Example 3: A public board attends a community reception, where the achievements of remarkable citizens are celebrated. Would this in itself constitute an unadvertised meeting? I believe a reasonably informed citizen would say no, as long as the elected members avoid conversations that substantially advance the board’s decision making processes. The same citizen might also suggest that, wherever practical, board members should not be seated or standing in a configuration that resembles a meeting, for the sake of better optics, and also for the sake of diminishing any temptation to engage in substantive debates.
Example 4: A public board attends an in-house workshop on meeting procedures. Zooming in, the public microscope picks up conversations about tools that can help make meetings more focused, inclusive, and efficient, and picks up no substantive references to specific board issues. Would a reasonably informed citizen conclude that this is an unadvertised meeting? I believe the reply would be in the negative, but also that public trust would be further earned if the Chair reminded everyone (at least once, at the start of the session) of the open meeting requirement and of the need to avoid substantive debates.

Example 5: A public board holds a working session, where complex emerging issues are explained for the first time. The private and informal setting makes it safe for members to ask ‘silly questions’ and upgrade their understanding of the issues without fear of being embarrassed in a public meeting. The session is only for education, and no specific decision making options are materially advanced. Would a reasonably informed citizen, looking through the public microscope, conclude that this gathering is an unadvertised meeting? This is a grey area. The answer might be no, as long as the Chair makes it very clear at the start of the session that it is strictly for education purposes, and that no debate of specific decision-making options would be permitted. Conversely, the same reasonably informed citizen might wonder why such a working session could not be publicly announced, thereby enabling the very interested and curious citizens to sit in the back of the room and listen. What is there to hide?

As I indicated, I am not qualified to offer legal advice. However, I believe that the open meeting requirement, besides being a legal issue, is substantially an issue of reasonableness and common sense. I wish it were possible to quantify, codify or legislate common sense, but I don’t think it is. The role of a public body is complex, and it is rarely possible to enter certain facts into a computer and find clear yes/no answers (as in ‘Yes, this was a breach of the open meeting requirement’ or ‘No, it wasn’t’).

Frankly, I sometimes worry about public bodies becoming too focused on the things they want to prevent (such as a formal challenge to the validity of a decision), and thereby potentially eroding their capacity to focus on the things they want to create (strong and fully informed decisions, with an abundance of honesty, integrity, transparency, reasonableness, and meaningful efforts to listen to and learn from the public). The quest for a perfect process may be well intended, but an absolutely flawless process is unlikely to occur. Indeed, an insistence on absolute perfection can have the side effects of boosting anxiety and inadvertently impeding or suppressing a logical and sensible flow of ideas and knowledge, which is essential to good decision making.

I am inspired by these words from Robert’s Rules of Order Newly Revised (11th edition, page 449): “any presiding officer will do well to bear in mind that no rules can take the place of tact and common sense…” In an environment where public trust is abundant, and where the governing body is honest and open and non-secretive (except for confidential matters), the likelihood that minor infractions would attract a formal challenge tends to diminish. Conversely, in an environment where trust is scarce, even small technical infractions can lead to a formal challenge. Who ‘wins’ in such cases is less significant than the amount of public resources that they consume and the resulting loss of capacity. So, your sustained investments in doing excellent work, building community, and earning public trust are likely to deliver great benefits.

Written by Eli Mina (elimina.com)

Eli Mina, M.Sc., P.R.P. is a Vancouver-based Board effectiveness consultant and Registered Parliamentarian. Since 1984, Eli has advised his clients on building better decision making bodies, dealing with disputes and dysfunctions, planning and running better meetings, demystifying the rules of order, and minute taking standards. Eli’s clients come from local government, native organizations, educational institutions, credit unions, and the non-profit sector. Eli is the author of five books on meetings and shared decision making. Eli is one of several parliamentarians and consultants that BCSTA works with as needs arise.