Open Meetings Laws, 2d

For those interested in the application of state open-meetings laws to higher education, the most pertinent and valuable sections of Schwing’s volume are pages 59-69, which detail open-meetings provisions governing state educational institutions, particularly colleges and universities.

Regents, Show Us the Sausage, A primer on open meetings laws,
Damon Hodge, Las Vegas Weekly, Feb 5-11, 2005.

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The text of pages 56-69 appears below without footnotes. A .pdf file of the section is available.

§ 4.10 2. State Educational Institutions

State boards of education are often within the scope of the open meeting laws. Universities, colleges and other state educational institutions of various sorts are frequently subject to open meeting laws. State educational institutions have been the subject of a disproportionate amount of open meeting act litigation.

Open meeting laws and court and attorney general opinions have identified the following state educational entities that may be required to obey the open meeting laws:
• the governing bodies of public institutions of higher learning,
• departments within a university,
• search committees for new deans, teachers and the like,
• the admissions committee of such an institution,
• other committees,
• the faculty, acting as a collegial body. Tenure hearings may or may not be required to be open, either by including or excluding the tenure hearing specifically, by including or excluding the body that conducts the hearings or by deeming tenure hearings to be within the exception permitting executive sessions for personnel matters.
• athletic associations and councils,
• nonprofit corporations operating for the benefit of a public university or college or the public schools,
• student government associations and organizations, and
• other associations, committees and entities that are associated with or part of public universities and schools.
Application of open meeting laws to schools often presents a tension between the public interest in open government and the privacy rights of particular students and teachers whose individual circumstances are at issue. This tension has been addressed in most states by permitting executive sessions when the public body considers individuals whose privacy interests would be affected by public discussion.

“The burden of adjudicating guilt and consequent imposition of a civil penalty or license revocation can be very serious, as in the present case. This burden of deliberation can be unwisely intensified and inhibited if thrust into the public eye with every step in the deliberative process potentially etched in news print or taped for display on the evening television news.” Della Serra v. Borough of Mountainside, 196 N.J.Super. 6, 481 A.2d 547, 551 (1984).

§ 4.12 3. State Professional Licensing Bodies

The licensing and governing bodies of various professions may be subject to open meeting requirements. Among these are the agencies that license and regulate the medical and dental professions, accountants, and a wide variety of other regulated professions and businesses. Regulation of attorneys raises special concerns of separation of powers, altering the usual application of open meeting laws in some states.

Proceedings before these bodies may address specific individuals, granting and revoking licenses and imposing discipline, or may concern the profession as a whole. Imposition of open meeting requirements to proceedings relating to the profession as a whole is particularly appropriate so that the public may be aware of and involved in the adoption and revision of standards and rules governing regulated professions. Proceedings that concern individuals present more difficult questions because of the tension between the public’s right to know and the individual’s right of privacy. States may resolve this tension by excepting initial investigatory proceedings, by excepting disciplinary proceedings as quasi-judicial proceedings, or by permitting executive sessions for part or all of the disciplinary proceedings affecting licensed professionals.

“‘Public body’ means any state or local legislative or governing body, including a board, commission, committee, subcommittee, authority, or council, which is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function, or a lessee thereof performing an essential public purpose and function pursuant to the lease agreement.” Mich.Comp.Laws Ann. § 15.262(a) (West 1994).

§ 4.14 4. State Boards and Authorities

Like commissions, state boards of various kinds are very likely to be subject to open meeting requirements. These include, for example, state retirement boards, state alcoholic beverage control boards and commissions, state advisory boards on drug programs, state boards of corrections and state boards concerned with financial matters.

The same general application of the open meeting laws is true for various state and regional entities such as a port authority, airport authority, solid waste authority, housing authority, and the like. The Nebraska open meeting law applies to the Nebraska Investment Finance Authority and other entities that have the power and authority to issue bonds and to borrow and expend public money under the definition of public bodies as “instrumentalities exercising essentially public functions.”

“‘Public body’ includes (i) any multimember board, commission, or committee appointed by the Governor or the chief executive authority of a political subdivision of the State if the entity includes in its membership at least 2 individuals not employed by the State or a political subdivision of the State; and (ii) The Maryland School for the Blind.” Md.Ann.Code State Gov’t § 10-502(h)(2) (1998 Supp.).

§ 4.16 5. Other State Entities

A variety of other state public bodies have been found subject to the open meeting laws, including departments of state government, insurance regulatory bodies, insurance guaranty associations, captive insurance corporations and the like and public trusts. For example, Alaska’s open meeting law applies to the Alaska Seafood Marketing Institute, the Alaska Permanent Fund Corporation, the Council on Domestic Violence, and the Alaska Energy Center. The Arizona law applies to the Arizona International Development Authority. The Delaware statute applies to the Governor's Council on Equal Employment Opportunity. The Minnesota Agricultural Utilization Research Institute is governed by the open meeting law, excepting the provisions governing financial information, business plans, trade secrets and the like. The Nebraska statute applies to the Excellence In Education Council appointed to assist and advise the Governor in awarding incentive grants from the Education Innovation Fund. New York’s open meeting law applies to the board of directors of the New York State Thoroughbred Breeding and Development Fund Corporation.

“‘Public body’ means village, town, and city governing authorities; parish governing authorities; school boards and boards of levee and port commissioners; boards of publicly operated utilities; planning, zoning, and airport commissions; and any other state, parish, municipal, or special district boards, commissions, or authorities, and those of any political subdivision thereof, where such body possesses policy making, advisory, or administrative functions, including any committee or subcommittee of any of these bodies enumerated in this paragraph.” La.Rev.Stat.Ann. tit. 42, § 4.2(A)(2) (West 1990).

Open Meeting Laws 2d, § 4.10 2. (Footnotes omitted.)

Copyright 2006