Open Meetings Laws, 2d

This exhaustive treatise on Open Meeting laws in general discusses their application to nonprofit corporations in detail.

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§ 4.100.H. Private Entities

Purely private entities are typically not within the scope of open meeting acts. Private entities that work for or with a government are not necessarily subject to the open meeting law by virtue of that relationship. Nonprofit corporations organized to support or assist governmental entities are typically not subject to open meeting laws. Special circumstances may arise, however, if the private entity is receiving public funds and acting as a governmental agency or has been delegated decision-making power by a public body. A public entity that is subject to the open meeting act cannot escape the obligations imposed by the act by changing its name through an incorporation with little other change. The absence of a specific reference to corporations in the definition of the entities subject to the law does not necessarily mean that they cannot be subject to the law.

Although none is determinative standing alone as a general rule, relevant factors that may be considered in determining whether private entities should be subject to open meeting law requirements include:

* the manner in which the entity was created and the public or private character of the person(s) who created it,
* the manner in which the members of the governing body of the private entity are selected, the presence of members of a public body as members of the governing body of the private entity, and whether public members constitute a majority on the private governing body,
* the character of the powers exercised by the public entity in relation to traditional governmental powers,
* whether the functions performed by the private entity would otherwise be performed by a public body, or were performed by the public body before the creation of the private entity,
* whether the activities of the private entity are carried out on public property,
* the extent to which public entities may control the entity in question and the extent to which the entity is autonomous,
* whether the entity is subject to government audits or otherwise has its business procedures supervised by a governmental body,
* • whether the entity is a nonprofit or a for profit entity,
* • whether the entity is exempt from the obligation to pay taxes for reasons other than incorporation as a nonprofit corporation,
* the governmental and private sources of its funding, their character and amount, whether public and private funds are commingled, and the reason for the payment to the private entity,
* whether the private entity would continue to exist and function if its relationship with the public body terminated,
* whether the private entity would be deemed an arm of the state under the Eleventh Amendment or would be entitled to assert other governmental immunities,
* whether a contract or statute specifically identifies the corporation or other private entity as subject to the law, and
* a combination of these factors.

Even within a single state, interpretations vary as to the application of the open meeting law to private entities, and one can often find seemingly or actually inconsistent decisions that make difficult any effort to predict the result as to another entity. The specific criteria for determining whether a particular entity is public or private . . . depends on the specific statutory purposes for which the determination is being made. Thus it is possible for the same entity to be public for one statutory purpose and private for another."

Open Meeting Laws 2d, § 4.100. (Footnotes omitted.)

Copyright 2006

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