Open Meeting Laws Primer
Open meeting laws are statutory provisions enacted by most states and territories, providing a mandate that certain proceedings of governmental or public bodies and entities include a procedure for any and all interested persons to observe, participate in, and contribute to… meetings and other proceedings in person . Open meeting laws further usually provide for notice to be given to the general and affected public regarding the time, date and place of all meetings and proceedings subject to these rules. No vote or formal action may be taken in any meeting or proceeding by an entity subject to open meeting laws except in a meeting or proceeding that provides notice as just described. The underlying intent of open meeting laws is to provide for inclusive governmental transparency.
Open Meeting Laws: Key Provisions
Each of the states that require open meetings for governmental bodies have certain threshold provisions in their statutes regarding what types of bodies fall within the scope of the laws and what types of meetings must be open. These different provisions will be addressed first.
Scope of coverage. While all of the states treat elected boards and commissions as falling within the intent of their respective open meeting laws, there are differences with respect to other types of bodies. All states subject state administrative agencies to their open meeting laws and most states include state and local boards and commissions. Some states cover certain public or quasi-state corporations, like universities. There a number of states that include authorities as well. Some of the states include in their open meeting laws a very general provision based on the premise that the intent of their laws is to cover whatever amounts to a public deliberation or decision-making body. These states provide for their act to apply to any public deliberative body or other governmental agency.
Scope of coverage, part two. Despite state statutory provisions to the contrary, government agencies regularly run up against open meeting law issues, primarily when they are in the process of making policy decisions. This happens for two reasons. First, during that process the particular appointed or elected body may not yet be considering a particular matter, making an action less than "final." Thus, the rationale for it being a "final" action may be grounded more on the argument that it is an amount of agency action that is intended to become "final" later as opposed to it being a final action in its own right. Typically this occurs through one or more informal or advisory bodies and nearly always involves the work of administrative staff, usually on the promise that they will become "formal" if the trend of the resulting effort is sufficiently positive or otherwise deemed to justify the effort. The second reason is even in cases where the agency action in question does involve a final decision by a state agency, the state law requiring openness does not include the deliberations of the body or collective agency making that final decision. In either case, the provisions of law requiring open meetings throughout the policy decision-making process could be employed to require an open process. In either case as well, there are broader arguments to be made with respect to an agency’s own rules and regulations requiring an open process.
Open meeting requirements are implemented through a number of mechanisms, including:
Notice. Notice requirements under open meeting laws vary. For example, some states require notice only if a quorum is present. A number of other states follow a rule of reason that allows for the nature of a body and the type of meeting to determine what type of notice is required. One state requires posting, once a week for two weeks before the meeting, while another has no notice requirements whatsoever. While there is virtually no state that does not include a notice requirement at least for some meetings, notice generally is required only infrequently.
Public accessibility. Most open meeting laws provide that routine meetings need not be held on evenings or weekends or at otherwise inconvenient times and places and that public bodies are not required to hold a meeting that is scheduled to be held on a day when there is a "major" national holiday. Otherwise, public bodies are typically required to meets in a physically accessible location and to provide for either tape-recorded or some form of transcript of a meeting. Most do not require minutes to be taken.
Recording protocol. With respect to open meeting procedures, some states allow audio recordings of meetings, while others allow video, but not audio. A few states only allow written minutes.
Who is Bound by Open Meeting Laws?
All states have Open Meeting Law (OML) requirements governing the manner in which public business is conducted and requires that citizens be given an opportunity to observe the business during a meeting. However, not every governmental body or organization is subject to OML provisions. As a general matter, official entities of the states, their political subdivisions and their public authorities are generally covered by OML.
Federal entities and agencies typically are not subject to OML; however, the Freedom of Information Act (FOIA) may apply to them. A useful distinction between OML and FOIA is that OML regulations typically address the conduct of meetings, while FOIA addresses the accessibility of public documents and information held by public bodies.
"Official Bodies": A local government entity will be covered by OML provisions if it fits within the definition of an "official body." Many of these terms tend to overlap. For example, a "commission" may be defined as a "board," a "board" may be defined as a "council," and a "council" may be defined as a "committee." The following is a brief discussion of those terms most commonly found in state statutes:
"Commission": A "commission" is typically defined as a group of members who are appointed to serve for a limited period of time. While the terms "board," "commission," and "committee" are often used interchangeably, it is important to consider the enabling statute creating the board in question in order to interpret its powers correctly.
"Board": A "board" may be defined as a "body" that is appointed to carry out the administration of an act. In most cases, a board is invested with various powers and has certain legislative or administrative functions.
"Committee": A "committee" is defined as a subdivision of a body that is appointed to perform some planned function. A committee is similar to a board or a council, but typically has a more limited jurisdiction.
"Task Force": An appointed "task force" is a temporary group of advisors who do not have any binding power or authority. There is a clear distinction between an advisory board and an official body since the members of an advisory body are not elected, are not charged with governmental authority, and are not required to follow OML.
"De Facto Entity": A "de facto" entity may exist when an "official body" has been unlawfully dissolved but continues to function. Courts have held that a de facto entity continues to exist after a dissolution until a final order for its dissolution is issued by a court.
"Local Public Body": A "local public body" is defined as a "quasi-sport governmental body" created to perform certain functions, such as regulating a specific sector or process.
"Political Subdivision": A "political subdivision" is a government body that is responsible for a specific function, such as taxation.
"Authority": An "authority" may be defined as a commission, board or other body that is created with special purpose. For example, an "authority" may be established to develop or manage a public utility.
"Agency": An "agency" is typically defined as a, "public and quasi-public corporation, board, commission, department, authority, public trust or other separate entity of the state or of any local government agency."
Exceptions to Open Meeting Laws
In addition to the open meeting requirements for public bodies, there are also several exceptions to the open meeting laws. The most common of these is for executive sessions, or what some refer to as "closed sessions." These sessions are permitted under all three PA laws (PMA, Sunshine Act, FOIA). Importantly, executive sessions must be held pursuant to a "motion duly adopted at a public meeting" in order to be lawful, and their purpose must be specified in open session. In other words, a public body cannot go into an executive session unless it has publicly adopted a motion that identifies the topics to be discussed in the executive session. Further, while a public body can vote in executive session to accept the resignation of any member of the public body (so long as the resignation is not due to formal charges) or to postpone action on a case if sufficient information is not available, the acceptance of specific resignations or postponements of specific actions must also be made publicly.
Executive sessions are generally limited to matters "that affect the general public or large segments of the general public." For example, executive sessions cannot be used to avoid discussion about widely-known topics. Courts have specifically held that a public body may not go into executive session to discuss a potential new school building project that has been covered extensively by the media because that would shield a major topic from public view for no apparent public benefit. Instead, the Court found that such a discussion should be open so long as there was not a reasonable expectation of widespread safety concerns. In some cases, the Court noted, construction projects can be shrouded due to safety concerns, such as when there is "a reasonable expectation that there will be specific threats of actual predation."
Another limitation to going into executive session is that a public body may not go into executive session to discuss the same subject matter that was the subject of a prior executive session without providing public notice of that additional discussion. For example, a public body could go into an executive session in May to discuss personnel matters, then the public body could go into an executive session in June to provide the staff with their annual evaluations, but the public body could not go into an additional executive session in June to continue to discuss personnel matters without announcing to the public that the executive session was considering personnel matters, again.
Moreover, while there is no limit on how many times a public body can go into executive session to discuss a single topic, a public body could not go into executive session more frequently than is reasonable to advise the public of general issues related to an upcoming event. For example, a public body could not go into executive session twice a month for three months to reach an agreement with a sports stadium.
Under the PMA, executive sessions can be called to consider quasi-judicial activities (e.g., Zoning Board of Appeals meetings) and litigation (i.e., after a formal complaint has been filed), provided that the lawsuit relates to the authority of a public body, or the rights of the public body as an entity (e.g., a divorce suit filed against the chairperson of a township board does not qualify as something that can be discussed in executive session under the PMA). The PMA also allows executive sessions to be called to discuss real estate matters relating to the purchase or lease of real property to include terms or conditions that are conditioned upon approval by the body, unless it is a price-need only.
Under the Sunshine Act, executive sessions are limited to the following topics: (1) matters involving the employment, appointment, or evaluation of an executive official, which includes authority over compensation; (2) strategy sessions relating to matters that are presently the subject of litigation whenever identifiable litigation is pending before a court or administrative body, or with regard to matters in which identifiable complaints have been filed, with the exception of union negotiations; (3) discussion of termination of Board members for wrongdoing (note: this is a somewhat unusual exception, since Pennsylvania’s Department of Education, Commonwealth Court, and Supreme Court have each held that such a discussion is not permitted under the Board member removal statute); (4) matters involving the selection of a representative to collect or calculate the cost of a tax; (5) matters involving the investigation of an individual employee or agency (involving a law enforcement investigation authorized by a criminal justice agency that is conducted according to the law, and which is not related to a civil service probe into alleged misconduct of an officer); (6) discussion of personnel matters which usually consist of hiring, considering salary, discipline, etc.; (7) matters involving hospital staff privileges, and peer review committees, c) complaints against public officials and employees; and (8) matters involving quasi-judicial activities of a local agency or quasi-adjucinary functions where a specific action is required by law.
Open Meeting Laws Violations and Penalties
Failing to comply with open meeting laws can lead to severe legal and administrative consequences for governmental bodies and their officials. At best, a governmental body or official may be found to have acted in violation of the open meeting laws, in which case its actions may be deemed voidable on contract grounds and a public agency could even be found liable for attorney’s fees incurred by participants in the litigation or a fine.
However, the more severe consequences may be criminal in nature. In California, for example, not only are individual public officials who violate the law subject to misdemeanor criminal penalties, including fines up to $1,000, imprisonment not to exceed six months, or both, but the governmental body may even be subject to paying civil penalties of up to $2,500 for each violation. California Government Code section 54959.
In addition to other potential penalties, in Illinois, a public official is guilty of a Class A misdemeanor if he is found to have: (i) "knowingly caused a public body to conduct a closed meeting or Hide Refer to N. next meeting in violation of the Open Meetings Act," or (ii) "intentionally failed to itemize a subject in the agenda or notice of a regular meeting that could reasonably be expected to inform those present that the public might wish to appear before the public body in order to address a matter [within the jurisdiction of the public body]." Illinois 5 ILCS 120/4. The portion of the Illinois Open Meetings Act that governs closed meetings also explicitly authorizes courts to impose "a civil penalty of the amount of $5,000 upon any person found to have wilfully failed to comply with [the Open Meetings Act]."
Authorities disagree regarding whether the unlawful action by a public official must be intentional or whether it is subject to strict liability. In California, for example, it has been held that "criminal liability for individual members of a legislative body is not dependent on intent, knowledge, or good faith." Ardon v City of Los Angeles, 52 Cal 4th 241 (2011). In contrast, in Washington, a trial court dismissed an action against the mayor and city council members accused of violating the Open Public Meetings Act, concluding, among other things, that intentional misconduct was required under the statute. Instead, the trial court read the Open Public Meetings Act as requiring that a public official act in the "capacity of an official representing a governmental body" in order to be liable under the Act. Smith v Clarke County, 2009 WL 2493279, *1 (Wash App 2009).
Open Meeting Law: Examples in Practice
The strong enforcement mechanisms behind open meeting laws produce a significant number of cases. In recent years, they have also produced several noteworthy cases that have challenged how some agencies approach transparency and the right of the people to observe the workings of their government.
The Concerned Citizens of Seguin v. Texas Commission on Environmental Quality
A recent Seventh Circuit case shows that even a privately-owned airport must comply with the open meeting laws. Concerned Citizens of Seguin, Inc. v. Texas Comm’n on Environmental Quality, 572 S.W.3d 130 (Tex. App.—Austin 2018, no pet.). In this case, air pollution control advocates asked the Commission’s Blue Ribbon Panel on Air Quality to hold public hearings on plans to construct a major industrial and transportation hub in a residential community. The Commissioner refused claiming it would be ineffective. The Court determined that the Commission is an extension of the state and therefore must adhere to open meeting statutes. It also held that open meetings would have promoted discussion of the "contradiction between air quality and economic development."
City of Dallas v. Dallas Morning News P’Ship, L.L.P.
The Dallas Morning News sued the City of Dallas for open meeting law violations when the mayor called a meeting to receive advice from a law firm regarding a lawsuit by an officer who sued the police department for race discrimination. Honoring the request of certain council members, the mayor issued a notice of a closed session where the council would meet with outside counsel. However, according to the minutes, the council only discussed a lawsuit between the city and a company over a breach of contract. The Court ruled that "the mere fact that a public body employs outside counsel does not shield the public body’s attorney-client communications from public disclosure, nor is the presumption against secret laws altered by the involvement of outside counsel."
Ibarra v. United States
A case from the Fourth Circuit demonstrates that Sunshine week can have far reaching effects. On March 14, 2008 , two members of the House of Representatives sustained injuries during a U.S. Military embargo enforcement operation on the U.S.-Mexico border. The two members were deliberately driving in a designated Corridor when they were pulled over by the Border Patrol (an agency of the Department of Homeland Security) and found to have been transporting a red light bar and night vision goggles. These two items were prohibited from being transported over the border into Mexico without a license or permit and resulted in felony charges being brought against the two representatives. The 4th Circuit noted that the incident was kept confidential for over four years, until a member of the public came forward with recordings of the initial stop. At that point, the names of the two members were revealed and the Justice Department wrote a letter to the Speaker of the House stating that "In our estimation, a proper legal proceeding, if any, is a civil action in the United States District Court." As a result, the case was closed and the DOJ managed to keep the non-publicly available for nearly a decade.
Citizens for Transparency v. Council on American Islamic Relations
The Council on American Islamic Relations (CAIR) hosted the Democrat National Committee’s annual Leadership Retreat at the Omni Shoreham Hotel, Washington D.C. on July 31, 2018. During that same week, the Council of American Islamic Relations (CAIR) also adopted a resolution banning the participation and donations of antisemites, white nationalists, and Islamophobes at its facilities, thereby facilitating an unusual dispute over the right of the California Republican Party to use CAIR’s 600 S. 15th St., Suite C, in Anaheim, California. Three days later, Republican members of the Orange County Board of Directors filed a complaint against CAIR, complaining that CAIR was violating the state’s Brown Act. The complaint alleged that CAIR rented their facility to Republican Party members and did not allow the Board of Directors to participate in the activities held there. The Board of Directors requested that CAIR provide the written records of their rent payments along with their internal policies and procedures and asked to remain anonymous. CAIR responded that they would put the requested documents on their website for all to see. They then offered to speak to the Board of Directors if they would disclose their identity.
Open Meeting Laws: Compliance Tips
In the United States, all states and the federal government have some form of open meeting law (perhaps even more than one), as do many local governments. Given the potential for criminal and civil penalties — and, even if you are not criminally prosecuted or perhaps otherwise sanctioned, the reputational risk — public officials should take the requirements seriously. As with complying with the federal Wiretap Act and the Stored Communications Act, complying with open meeting laws is complicated (especially since most government bodies are subject to more than one set of open meeting laws) and fraught with traps. But there are some general tips that can be helpful: A better option may be to limit communications to in-person meetings or phone calls rather than email or other messaging systems. With a meeting, it is easier to keep track of who was present — and, with the requirement to provide notice of the meeting and publish minutes, are able to memorialize the decision-making process — than with an email chain or even a group text. You can go one step further and establish a policy/protocol for your in-person and phone meetings to ensure that all deliberations are conducted in compliance with the various open meeting laws that apply.
If there are multiple channels of communication (e.g., phone, email, in-person meetings) involving one or more quorum groups, there is a higher risk that representatives from the public will think the "back and forth" of the various communication channels is an official "meeting." If you must conduct business via email or other electronic means, limit the groups and set up the mailing lists in such a way that it is clear they are not "quorum groups." For example, by limiting the recipients of an email to less than a quorum for a public body (or, if necessary, less than a quorum of different public bodies), you can reduce the risk of an inadvertent open meeting violation.
If communications need to occur one-on-one, make sure it is explicit to the other party that the communication will not be protected by any attorney-client or other privilege.
If you are a member of two or more public bodies, special care should be taken to avoid decision-making "in parallel" across the various bodies to the extent that doing so is not allowed by the various open meeting laws that apply to each body.
Beyond these tips, we encourage you to review the open meeting laws that pertain to your particular government entity.
Open Meeting Laws Updates
While a slowing real estate market has put the brakes on much of the new development that drove the industry for the past several years, that doesn’t mean the issues that affect it have slowed down. If anything, they may be picking up. The following is a summary of recent cases, to which you should pay careful attention:
1. Digital Meetings
With the recent explosion of technology comes new questions about the law and how it applies to digital meetings. For example, may the governing body of a community conduct its meetings using telephone or video conferencing technology? The answer is a resounding yes: under Florida’s Sunshine Law, it is not illegal to meet by telephonic or electronic media, as long as the public is afforded the opportunity to participate. There are significant circumstances and requirements surrounding digital meetings, however. First, as stated in the above case, the media must allow for participation by the public. For instance if the meeting is held using Skype, the public should also have access to Skype and the ability to communicate in the same manner as the Board. Similarly, if the Board holds its meeting by telephone, anyone wishing to participate must be provided a phone number at which they may call in and remote in to the meeting with the ability to simply listen in, or to speak, with a two-way conversation available. Second, the Sunshine Law requires the meetings be open and noticed to the public. This means that the public should know the time and place of the meeting at least 24 hours in advance. Notice of a telephonic or electronic meeting must include an invitation for the public to participate. It is important to note that the requirements of notice also apply to any telephonic or electronic Board meeting outside of regular meeting times. The best way to ensure compliance is to institute a policy governing the use of such technologies. Third, and of particular importance in the context of developing properties, is that the usual 60-day Circuit Court notice requirement (to challenge any action taken at a properly noticed public meeting) is modified for telephonic or electronic meetings. The 60-day window begins the day after the meeting; not the date the minutes are made available to the public, which may not happen until after the 60 days have run out. Therefore, it is imperative that the minutes from any digital meeting be made available to the public immediately, especially in relation to any development decisions. Finally, keep in mind that while members of a board may participate by telephonic or electronic media, they are required to be physically present at the meeting location if they are participating in the meeting such that their presence is audible to the public at the designated location.
2. Sunshine Law and Online Surveys
Specific to communities, administration and compliance with the Sunshine Law are extremely important to keeping disputes from developing and unnecessary costs from being incurred to address them. A Ninth Circuit Court of Appeal case, Friends of River Palm v. Upper East Coast Regional Water Control Districts, reminds us of the basic concept of wanting government transparency (i.e., local government dating back to 1868). Questionably, the district court addressed a local water committee attempting to conduct its business via email and with no minutes, nor the opportunity for comments to be made. In its analysis, the Court of Appeal basically tossed out all of the committee’s decisions, noting that they had violated the Sunshine Law. The Court indicated that because "decisions" were made in these emails and no opportunity for public comments was provided, the committee should not have committed itself to positions or actions. Therefore, associations’ use of any online surveys or even emails to get information about their owners could be a violation of the openness over which our forefathers fought. What this case tells us is that while email and the internet are important tools in this day and age, they will not suffice for conducting business and making decisions.
3. Common Interest Communities May Not Ban All Apartment Residents
Although zoning and property values are considerations in this case, Ventana Lakes Condo. Ass’n, Inc. v. Millien, it is an interesting read for communities. The association had adopted and implemented a rule that banned all residents of apartments in its community from being able to reside in this community. The Court of Appeals ruled that the rule "was not reasonably related to the operation and governance of the community as required by the Act." The Court went on to clarify that although a community can prohibit apartment dwellers altogether like in Homeowners of Tides Condo. Ass’n., Inc. v. Schiffman, 760 So. 2d 1050, 1051 (Fla. 3d Dist. App. 2000), it did not mean that they were required to do so. There are several factors in this case which may have played into the court’s decision. It is important to remember that the board has a fiduciary duty to act in the best interest of the community. This probably includes allowing rental units and apartment-dwelling owners to reside in the community.
4. Conflicts between Bank and Associations?
Sometimes we see bank and homeowners’ association fights involve fees, costs of collection and the general issues regarding disposition of foreclosed-upon properties. However, the United States District Court for the Southern District of Florida recently analyzed a dispute over the right of first refusal; not something that is often seen in this market. While prior courts have given what appears to cover the requirements of a right of first refusal (the right of first refusal under the State’s statute which allows an association to acquire a unit before any other purchase offer can be accepted), new language in a mortgage contract changed the usual course and would have resulted in a significant windfall to the association, much to the detriment of the bank. The contract required the association to disclose any lease before entering into the mortgage contract, which essentially gave the association a right of preemption which was not typically found in the legal language for a right of first refusal. That bank argued (and the Court agreed) that this new language in the contract did not comport with the statutory requirements of the right of first refusal and, therefore, the bank had the right to proceed with its sale. Associations should be aware of these types of disclosures in mortgage contracts and should always consult with legal counsel to make sure association rights do not interfere with rights of lenders.
Open Meeting Laws Resources
For those interested in diving deeper into the nuances of open meeting laws , the following resources may prove useful:
Transparency International – Transparency in Government
Official’s Guide to Open Government Transparence.org
U.S. Department of Justice (DOJ) – A Citizen’s Guide to Open Government
DOJ – Sunshine in Government Initiative
U.S. National Archives – Federal Records Act
U.S. National Archives – Federal Register (searchable via calendar)
State of Alabama – Alabama Open Meetings Law
State of Connecticut – Connecticut Freedom of Information Commission
State of Florida – Sunshine Law
State of Georgia – Georgia Open Meetings Act (Georgia Open Records and Open Meetings)
State of Illinois – Illinois Public Access Counselor
State of Iowa – Iowa Open Meetings Council
State of New Jersey – Government Records Council
State of New Hampshire – Right-to-Know Law
State of Oklahoma – Oklahoma Open Meeting Act
State of South Carolina – South Carolina Freedom of Information Act
State of Wisconsin – Open Meetings Law
Canadian Access to Information Act
A Guide to Online Public Records and Government Websites, US Public Interest Research Group (2013).