I had an interesting discussion today with a reporter about a county commission's actions. Between two budget meetings, the commissioners apparently had decided to take a chunk of funds for an expenditure out of the county emergency fund.
Questioned by the clerk as to when that decision was made, the commissioners indicated there had been no formal meeting at which that decision was made. Finally someone suggested that the county attorney had called each of them individually and discussed the issue.
Now, let's just stop with those facts. In this case, it was clear a consensus had already been reached when the commissioners came together and acted without any in-meeting discussion to amend the budget in that fashion. Decisions like that are not simply a product of osmosis. Even the commissioners acknowledged that there had been discussion, albeit with the county's attorney who apparently had engaged in a series of what some have at times referred to as "round-robin" calls. Others (I'm thinking of Jay Nixon while he was serving as the State's Attorney General) have called this a "wagon-wheel" decision-making action. Regardless of what terms are used, it involves a third party calling the individual members of the public body, conveying to each what the others are thinking and continuing these calls until a consensus is reached.
This is not an action that gets you a free pass under the sunshine law. If you go back to a discussion by the Western District Court of Appeals some time ago, while considering a series of meetings of fewer than a quorum of members of a public body in an effort to keep from getting a quorum together, the Court said "In such closed meetings with less than a quorum, deliberations could be conducted and votes taken with a public meeting then being held to ratify publicly that which had already been done in private. This would violate the spirit of our Sunshine Law...."
Regardless of whether it's a meeting of small groups or one-on-one calls with someone who passes the information on among all the other members and facilitates arriving at a consensus without the formality of a meeting, it's still illegal and courts won't give a public body's members a pass just because they manage to discuss a hot issue in a way that the public cannot participate. Playing games like this is still illegal.