WARD 5 COUNCIL  member Chuck Warpehoski, in violation of Council rules and, perhaps, Michigan’s Open Meetings Act law, has used email and Twitter on multiple occasions during the months of November and December during open meetings. At the December 2, 2013 meeting, he used his private Twitter account to forward photos of documents contained in the Council’s packet to a small group of followers, as well as  individuals who follow the Ann Arbor City Council meetings using live Tweeting and the hashtag #a2council.

At the December 2, 2013 Council meeting, Ward 1 Council member Sabra Briere also violated Council rules concerning electronic communications. Briere sits on the Council Rules Committee, and helped craft Council Rule  #8 which states: “During Council meetings, members shall not send electronic communication to persons other than City Staff; provided however, that members may send draft motions, resolutions, and amendments to all members. Members shall not respond to member-distributed draft language via electronic communication. All draft language sent by electronic communication during Council meetings shall be read into the record prior to discussion by Council.”

Ward 1 Council member Sumi Kailasapathy has a Twitter account, but never Tweets during public meetings. She was succinct in her comments: “We have Council rules and we need to abide by them.” She then pointed out that City Council had gone through an “email fiasco” in 2009 and concluded by saying, “I think using Twitter during meetings violates Council Rule #8.”

Ward 2 Council member Sally Hart Petersen has a Twitter account with 98 followers. Petersen, like Kailasapathy, does not Tweet or email during Council meetings.

She first posited that Warpehoski had stepped away from the Council table to send his emails/Tweets. However, this was not the case, as Warpehoski’s December 2nd Tweets are time-stamped 7:25 p.m., 7:26 p.m. and 7:30 p.m., during the Council meeting when the city’s CFO was discussing the 2012 audit report.

Council member Petersen commented via email: “Unless it’s an emergency or otherwise urgent situation…no one should be communicating electronically to anyone except City Staff and Council during the time between the Call to Order and Adjournment of the meeting, inclusive of breaks.”

Petersen also pointed out that: “Not having a Council Rule that specifically addresses electronic communications during breaks exposes us to the same e-mail debacle that created the need for much of the content  of Rule #8. I expect the Council Rules committee will take this on.”

Members of the media, including Ann Arbor News reporter Ryan Stanton, as well as Mary Morgan, Publisher of The AnnArborChronicle.com, listened in, as it were, on Warpehoski’s Tweets and participated in discussions, as well. At 11:08 p.m. Briere initiated a Twitter conversation with AnnArborChronicle.com Publisher Mary Morgan. The time-stamp of the Council member’s Tweet reveals Briere was using Twitter while Council was debating the establishment of a tax abatement district.

Before sending private emails during November Council meetings, Warpehoski announced to Council colleagues that he was “breaking Council rules.” Council members are required to ask colleagues to set aside Council rules and vote on the request.

During none of the times Warpehoski and Briere violated Council Rule #8 did the Council members follow this procedure. Neither Briere or Warpehoski asked to have Council rules set aside prior to their repeated uses of Twitter during the December 2nd Council meeting.

Rule #8 was adopted by Council members (including Briere) in 2010 in response to a 2009 Open Meetings Act lawsuit triggered by private emails sent by Council members to each other, as well as to members of the public during open meetings. The former Ann Arbor News revealed that Council members had been rigging votes, insulting the public and scripting debates via email.

After the Open Meetings Act lawsuit was settled, Council members revised Council rules, including Rule #8.

The use of social media, including Twitter, has gotten elected officials into legal hot water. In the 2013 City of Champaign v. Lisa Madigan decision, a unanimous panel of Illinois’s fourth district appellate court held that a municipality is required to disclose electronic communications between aldermen during a city council meeting if those texts, tweets, or emails were about city business.

Using a personal electronic device, as Warpehoski did to photograph Council documents for distribution to his 204 Twitter followers, was an act viewed by the Illinois appellate court members as a way: “to subvert the Open Meetings Act and [Freedom of Information Act (FOIA)] requirements simply by communicating about city business during a city council meeting on a personal electronic device.”

To be clear, on Twitter Council member Warpehoski shared non-privileged documents and information. Without a FOIA request, it’s not possible for the public to know what Warpehoski shared in the private emails he sent.

While it’s obvious Warpehoski understood he broke Council rules in sending private emails, it’s not clear he understood he was also breaking Council rules, and perhaps the state’s Open Meetings Act laws, by sending photos of Council documents to a small group of individuals via Twitter.

Council members Sumi Kailasapathy, Sabra Briere, Sally Hart Petersen, Chuck, Warpehoski and Jack Eaton have Twitter accounts. Eaton’s Twitter account is private (followers must be approved by the Council member), and he does not Tweet. Rather, Eaton uses his Twitter account to follow those who use the social media site.

When The Ann Arbor Independent asked Council members Warpehoski and Briere about their use of Twitter during the December 2nd  Council meeting, they did not respond to a request for comment.