Open Meeting Laws 3d Ann Taylor Schwing
Open Meeting Laws 3d
Table of Contents
Foreword to the Second Edition
Preface to the Third Edition
Preface to the Second Edition
Preface to the First Edition
I. Introduction
§ 1.1 Introduction
II. Constitutional Principles
§ 2.1 Constitutional Principles
§ 2.2 A. First Amendment Free Speech and Press Rights
§ 2.4 B. First Amendment Right to Assemble and Petition for Redress
§ 2.6 C. Due Process
§ 2.8 D. State Constitutional Principles
§ 2.10 1. State Affirmative Open Meeting Guarantees
§ 2.12 2. State Rights to Assemble and Petition for Redress
§ 2.14 3. State Rights to Free Speech and Free Press
§ 2.16 4. State Constitutional Notice Requirements
§ 2.18 5. Other State Constitutional Provisions
§ 2.20 E. The Constitutionality of Open Meeting Laws
III. Public Policy and Statutory Interpretation
§ 3.1 Public Policy and Statutory Interpretation
§ 3.2 A. Statutory Declarations of Public Policy
§ 3.5 B. Court Interpretation of Open Meeting Laws
§ 3.6 1. In General
§ 3.8 2. In Relation to Amendments of the Open Meeting Laws
§ 3.10 3. In Relation to Rules Imposing Open Meeting Requirements
§ 3.12 4. In Relation to Other Laws Within the State
§ 3.14 a. Generally
§ 3.16 b. Local and Specialized Open Meeting Requirements
§ 3.18 c. State Open Record Acts
§ 3.20 d. Conflict of Interest Statutes and Principles
§ 3.22 5. In Relation to Similar Laws in Other Jurisdictions
§ 3.24 a. Open Meeting Laws in Other States
§ 3.26 b. Federal Open Meeting Laws
§ 3.28 C. Extent of the Application of Open Meeting Laws
§ 3.30 D. State Officials' Duty to Distribute Open Meeting Laws or Train
IV. Entities Subject to Open Meeting Laws
§ 4.1 Entities Subject to Open Meeting Laws
§ 4.4 A. The Federal Government and Multi-Member Federal Agencies
§ 4.6 B. The State and Statewide Public Entities
§ 4.8 1. State Commissions
§ 4.10 2. State Educational Institutions
§ 4.12 3. State Professional Licensing Bodies
§ 4.14 4. State Boards and Authorities
§ 4.16 5. Other State Entities
§ 4.20 C. Districts and Other Regional Public Entities
§ 4.22 D. Political Subdivisions of the State
§ 4.24 E. Local Public Entities
§ 4.26 1. Cities and Towns
§ 4.28 2. Counties, Boroughs and Parishes
§ 4.30 3. Local Commissions
§ 4.32 4. Local Boards
§ 4.34 5. Other Local Public Bodies
§ 4.36 F. Committees and Other Subordinate Public Bodies
§ 4.38 1. Committees That Are Not Subordinate Bodies
§ 4.40 2. Committees That Are Subordinate Bodies
§ 4.42 3. Factors in the Application of Open Meeting Laws to Committees
§ 4.44 4. The Special Problem of Advisory Committees
§ 4.48 G. Single Person Public Bodies
§ 4.50 H. Public Bodies Typically Not Subject to Open Meeting Laws
§ 4.52 1. Courts, Judicial Bodies and Quasi-Judicial Bodies
§ 4.54 a. The Courts and Judiciary
§ 4.56 b. Courts as Administrative or Rule-Making Bodies
§ 4.58 c. Courts as Licensing and Disciplinary Bodies
§ 4.60 d. Grand Juries
§ 4.62 e. Petit Juries
§ 4.64 f. Judicial Nominating Commissions
§ 4.66 g. Judicial Disciplinary Commissions
§ 4.68 h. Probation and Parole Boards
§ 4.69 i. Quasi-Judicial Bodies Generally
§ 4.70 j. Quasi-Judicial Bodies Excepting Disciplinary Bodies
§ 4.71 k. Quasi-Judicial Bodies: Disciplinary Bodies
§ 4.72 l. Mediation and Arbitration Bodies and Settlement
§ 4.74 m. Coroner's Inquests
§ 4.80 2. State Legislative Bodies
§ 4.82 3. Committees of the State Legislatures
§ 4.84 4. Political Parties
§ 4.86 5. Political Party Caucuses
§ 4.90 6. The President, Governor and Cabinet
§ 4.94 7. Other Public Bodies Often Excepted from Open Meeting Laws
§ 4.96 8. Interstate and Multi-State Public Bodies
§ 4.100 I. Private Entities
§ 4.102 1. Private Entities Receiving Public Funds
§ 4.103 2. Private Entities Soliciting Donations to Public Institutions
§ 4.104 3. Private Entities with Public Officers
§ 4.106 4. Private Entities Providing Health Care
§ 4.108 5. Private Entities Providing Utility Services
§ 4.110 6. Private Entities Under Contract with Public Bodies
§ 4.111 7. Private Entities Providing Services to Public Bodies
§ 4.112 8. Private Entities Composed of Public Bodies
§ 4.114 9. Homeowner Associations
§ 4.120 10. Other Private Entities
V. Mechanical Details of Open Meeting Laws
§ 5.1 Mechanical Details of Open Meeting Laws
§ 5.4 A. Notice Requirements
§ 5.6 1. Who Must Give Notice
§ 5.8 2. Who Must Receive Notice
§ 5.10 3. The Timing of Notice for Regular Meetings
§ 5.12 a. Reasonable Notice Requirements
§ 5.14 b. Notice As Prescribed by Each Public Body
§ 5.16 c. Statutorily Prescribed Notice Periods
§ 5.18 4. The Timing of Notice for Special Meetings
§ 5.20 5. Timing and Character of Notice for Meetings on Special Subjects
§ 5.22 6. The Timing of Notice for Emergency Meetings
§ 5.24 7. The Timing of Notice for Executive Sessions
§ 5.26 8. Posting and Filing Requirements
§ 5.27 9. Internet Posting and E-Mail Publication Requirements
§ 5.28 10. Media Publication Requirements
§ 5.30 11. Requirements to Provide Notice Pursuant to Requests
§ 5.32 12. The Content of the Notice
§ 5.34 13. Agendas
§ 5.36 a. Meetings for Which an Agenda Is Required
§ 5.38 b. Distribution of the Agenda
§ 5.40 b. The Content of the Agenda
§ 5.42 d. Consideration of Off-Agenda Items
§ 5.44 14. Notice for Adjourned, Continued and Reconvened Meetings
§ 5.50 B. Preparation and Availability of Minutes
§ 5.52 1. The Character and Content of Minutes Generally
§ 5.54 2. When Minutes Are Required
§ 5.56 3. Minutes of Executive Sessions
§ 5.58 4. Availability and Examination of Minutes
§ 5.60 5. Retention of Minutes
§ 5.62 6. Responsibility for Taking and Correction of Minutes
§ 5.70 C. Location, Size, Accessibility and Characteristics of the Meeting Room
§ 5.72 1. The Geographic Location of the Meeting
§ 5.74 2. Public or Private Character of the Meeting Place
§ 5.76 3. Size and Other Characteristics of the Meeting Place
§ 5.80 D. Sound and Language Requirements for the Meeting
§ 5.84 E. Selection of Meeting Times
§ 5.86 F. Use of Recording Devices by the Public Body, Public and Media
§ 5.90 G. Entitlement to Attend Open Meetings
§ 5.94 H. Public Participation and Open Microphone Time
§ 5.96 I. Regulation and Control of Public Access
VI. Meetings, Quorums, Deliberations and Voting
§ 6.1 Meetings, Quorums, Deliberations and Voting
§ 6.4 A. The Public Business That Invokes Application of the Law
§ 6.6 B. The Requirement of Open Meetings
§ 6.8 C. The Definition of a "Meeting"
§ 6.10 1. Is Formal or Binding Action Necessary for a "Meeting"?
§ 6.12 a. Deliberation States
§ 6.14 b. Former Action States
§ 6.16 2. Is a Quorum Necessary for a "Meeting"?
§ 6.18 a. Quorum States
§ 6.20 b. Non-Quorum States
§ 6.22 c. States Not Expressly Employing a Quorum as the Test
§ 6.24 3. Is Physical Presence Necessary for a "Meeting"?
§ 6.26 4. Occurrence of a Violation Is Not Dependent on a "Meeting"
§ 6.30 D. Collegial Bodies and Serial Meetings
§ 6.32 1. The Collegial Character of Public Bodies
§ 6.34 2. Serial Communications
§ 6.36 a. Serial Communications in Person
§ 6.37 b. Serial Communications Through an Intermediary
§ 6.38 c. Serial Written, Telephonic or Electronic Communications
§ 6.40 d. Statutory Prohibitions Against Serial Communications
§ 6.42 3. Prohibitions Against Telephonic Meetings
§ 6.44 4. Generally Permissible Telephone and Videoconference Meetings
§ 6.45 5. Restricted Use of Telephone and Videoconference
§ 6.46 6. E-Mail and Similar Communications
§ 6.47 7. Websites, Blogs, Bulletin Boards and the Like
§ 6.48 E. Seminars, Training and Work Sessions and Retreats
§ 6.50 F. Pre-Meeting Meetings
§ 6.52 G. Informal Meetings and Secret Meetings
§ 6.54 H. Breaks and Recesses During the Course of Meetings
§ 6.55 I. Post-Meeting Meetings
§ 6.56 J. Prearranged Meetings
§ 6.60 K. Voting
§ 6.62 1. Secret Ballots
§ 6.64 2. Voting in Executive Session
§ 6.65 3. Requirements for Recording the Votes
§ 6.66 4. Proxy Voting
§ 6.68 5. Polling and Other Forms of Concealed Voting
§ 6.70 L. What Is Typically Not a "Meeting"
§ 6.72 1. Solitary Actions of Individuals
§ 6.74 2. Interaction with and Among Staff and Action by Staff
§ 6.76 3. Administrative and Ministerial Matters
§ 6.78 4. Inspections
§ 6.80 5. Individual Interaction with Third Parties
§ 6.82 6. Attendance at Conferences, Speeches and Other Events
§ 6.84 7. Preparation of Decisions and Other Documents
§ 6.86 8. Communication of Meeting Notices, Agenda Items, Decisions and the Like
§ 6.88 9. Social Gatherings and Chance Meetings
§ 6.89 10. Mediations, Settlement Conferences, Negotiations and the Like
§ 6.90 11. Other Interactions and Communications
VII. Executive Sessions
§ 7.1 Executive Sessions
§ 7.4 A. What Is an Executive Session
§ 7.6 B. The Procedure to Recess to Executive Session
§ 7.8 C. Limitation of Discussion to Matters Identified in the Motion
§ 7.9 D. Post-Recess Certification
§ 7.10 E. The Confidentiality of Executive Sessions
§ 7.11 F. Civil Discovery of Executive Session Communications
§ 7.12 G. Who May Attend Executive Sessions
§ 7.14 H. Permissible Use of Executive Sessions
§ 7.16 1. Matters Affecting an Individual's Reputation or Privacy
§ 7.18 a. Reputation
§ 7.20 b. Personal Privacy
§ 7.22 c. Matters Relating to Patients and Welfare Recipients
§ 7.24 d. Matters Relating to Individual Students
§ 7.26 e. Matters Relating to Examinations
§ 7.28 f. Matters Relating to Professional Licensees
§ 7.30 g. Matters Relating to Peer Review and Similar Activities
§ 7.32 h. Matters Relating to Individual Taxpayers
§ 7.40 2. Personnel Matters
§ 7.42 a. Interviews and Hiring Decisions
§ 7.44 b. Performance Reviews, Discipline and Termination
§ 7.46 c. Limitation to Specific Individuals
§ 7.48 d. Limitation to Employees Excluding Officers or Officials
§ 7.50 e. Other Limits on the Exception
§ 7.54 3. Employer-Employee Negotiations and Collective Bargaining
§ 7.60 4. Attorney-Client Communications
§ 7.62 a. General Principles
§ 7.64 b. Attorney-Client Privileged Communications
§ 7.66 c. Litigation Communications
§ 7.68 d. Contract Negotiation Communications
§ 7.70 e. States Not Excepting Attorney-Client Communications
§ 7.72 5. Quasi-Judicial Deliberations
§ 7.74 6. Financial Matters
§ 7.76 7. Purchase and Sale Decisions
§ 7.78 8. Trade Secrets and Industry Expansion
§ 7.80 9. Gifts and Awards
§ 7.82 10. Emergency Communications and Security Issues
§ 7.84 a. Natural Disasters, Health and Public Safety
§ 7.88 b. Internal Security, Police Investigations and the Like
§ 7.90 c. Military and National Security Issues
§ 7.92 11. Matters Required by Law to Be Confidential
§ 7.94 a. Matters Protected by Constitutional Privacy Rights
§ 7.96 b. Matters Protected Under Public Records Laws
§ 7.98 c. Confidential Matters Otherwise Provided by Law
§ 7.100 12. Training and Self-Evaluation by the Public Body
§ 7.102 13. Other Matters
VIII. Remedies for Violations of Open Meeting Laws
§ 8.1 Remedies for Violations of Open Meeting Laws
§ 8.2 A. Open Meeting Ombudsmen and Commissions
§ 8.3 B. Attorney General Enforcement and Interpretation
§ 8.4 C. Mandatory Administrative Remedies in Advance of Litigation
§ 8.5 D. Mediation of Possible Open Meeting Violations
§ 8.6 E. The Prima Facie Cause of Action
§ 8.8 F. Who Has Standing to Sue
§ 8.10 1. The Attorney General or District Attorney
§ 8.12 2. The Public Body in Question and Its Members
§ 8.14 3. Members of the Public
§ 8.16 4. The News Media
§ 8.18 5. Who Lacks Standing to Sue
§ 8.20 G. Who May Be Sued
§ 8.22 1. The Public Entity
§ 8.24 2. Members of the Public Body in Question
§ 8.26 3. Elected or Appointed Members Who Have Not Begun to Serve
§ 8.28 4. Third-Party Participants
§ 8.30 H. Intervention
§ 8.32 I. Appearance of Amicus Curiae
§ 8.34 J. Scienter
§ 8.40 K. Burden of Proof
§ 8.50 L. Available Remedies
§ 8.52 1. Injunctive Relief
§ 8.53 2. Required Preparation or Opening of Minutes and the Like
§ 8.54 3. Declaratory Relief
§ 8.56 4. Mandamus, Prohibition and Other Extraordinary Writs
§ 8.58 5. Civil Penalties
§ 8.59 6. Damages
§ 8.60 7. Criminal Monetary Penalties and Imprisonment
§ 8.61 8. Mandatory Training
§ 8.62 9. Invalidation of Action Illegally Taken
§ 8.63 10. Veto
§ 8.64 11. Forfeiture of Office or Future Public Office
§ 8.66 12. Contempt of Court
§ 8.68 13. Discipline of Attorneys Who Participate in a Violation
§ 8.70 14. Civil Rights Actions
§ 8.72 15. Unavailable Remedies
§ 8.80 M. Calendar Precedence
§ 8.82 N. Concurrent Causes of Action
§ 8.84 1. Conflict of Interest Violations
§ 8.86 2. Violation of Specialized Laws Governing Particular Meetings
§ 8.88 3. Violation of Public Record Statutes
§ 8.90 4. Civil or Criminal Conspiracy
§ 8.92 5. Private Rights of Action Under State Constitutions
§ 8.94 6. Retaliation for Exercise of Rights Under Open Meeting Laws
IX. Cures for Violations of Open Meeting Laws
§ 9.1 Cures for Violations of Open Meeting Laws
§ 9.4 A. Ratification by the Public Entity
§ 9.6 1. Ratification Following Notice Violations
§ 9.8 2. Ratification Following Illegal Meetings or Votes
§ 9.10 3. Statutes Expressly Addressing Ratification
§ 9.11 4. Requirements for Ratification
§ 9.12 B. Vote of the People
§ 9.14 C. Attendance at the Meeting Despite Lack of Notice
§ 9.16 D. Nunc Pro Tunc Orders and Reformation of Minutes
X. Defenses to Actions Under Open Meeting Laws
§ 10.1 Defenses to Actions Under Open Meeting Laws
§ 10.4 A. Statute of Limitations
§ 10.6 1. Accrual at the Time of Violation
§ 10.8 2. Accrual upon Discovery of the Violation
§ 10.10 3. Accrual When the Action Is Made Public
§ 10.12 4. Other Accrual Rules
§ 10.14 5. Waiver of the Statute of Limitations
§ 10.16 6. Tolling of the Statute of Limitations
§ 10.20 B. Laches
§ 10.22 C. Unclean Hands
§ 10.24 D. Mootness
§ 10.26 E. Immunity for Those Who Report Violations and Immunity from Service of Process
§ 10.30 F. Defenses Dependent on Circumstances or a Particular State Statute
§ 10.32 1. Substantial Compliance
§ 10.34 2. Advice of Counsel
§ 10.36 3. Failure to Make Demand or to Exhaust Remedies
§ 10.38 4. Waiver and Estoppel
§ 10.40 5. Nonparticipation in the Violation
§ 10.42 6. Nonjusticiability
§ 10.44 7. Harmless or De Minimis Violation
§ 10.46 8. Res Judicata or Collateral Estoppel
§ 10.50 G. Attempted Defenses That Typically or Always Fail
§ 10.52 1. Unconstitutionality
§ 10.54 2. Inconvenience or Embarrassment
§ 10.56 3. Claimed Lack of Awareness or Understanding of the Law
§ 10.58 4. Good Faith
§ 10.60 5. No Violation in Connection with a "Real" Meeting
§ 10.62 6. Discriminatory or Selective Prosecution
§ 10.64 7. Notice Was Given in the Media or Generally Known
§ 10.65 8. Expected Quorum Actually Did Not Attend
§ 10.66 9. Bad or Vexatious Motive for Suit on Plaintiff's Part
§ 10.68 10. Compliance with Other Law or with Robert's Rules of Order
§ 10.70 11. Lack of Pattern or Practice of Past Violations
§ 10.72 12. Absolute Legislative Immunity or Privilege
§ 10.74 13. Qualified Immunity
§ 10.76 14. Privileges Other Than Attorney-Client Privilege
§ 10.78 15. Private Contract Authorized Executive Session
§ 10.80 16. Law Applies Only After Bylaws Are Adopted
XI. The Process of Open Meeting Litigation
§ 11.1 The Process of Open Meeting Litigation
§ 11.4 A. Pleadings
§ 11.6 B. Venue and Jurisdiction
§ 11.8 C. Discovery
§ 11.10 D. Motions Practice
§ 11.12 E. Jury or Court Trial
§ 11.14 1. Evidence
§ 11.16 2. Evidence: Proof of Violation by Inference
§ 11.18 3. Evidence: In Camera Review
§ 11.20 4. Evidence: Judicial Notice
§ 11.24 5. Trial on Stipulated Facts
§ 11.26 6. Jury Instructions
§ 11.28 7. Sua Sponte Assertion of the Open Meeting Law
§ 11.30 F. Settlement
§ 11.32 G. Judgment
§ 11.34 H. Appeal
XII. Attorney Fees, Defense and Reimbursement
§ 12.1 Attorney Fees, Defense and Reimbursement
§ 12.4 A. Public Interest Litigation/Private Attorneys General
§ 12.6 B. Partial Fee Awards and Denial of Fee Awards
§ 12.8 C. Attorney Fee Awards in Favor of the Defendant
§ 12.10 D. Pro Se Litigants
§ 12.12 E. Costs
§ 12.14 F. Defense and Reimbursement by Public Entity for Its Members
Appendix
Open Meeting Law Manuals, Related Documents and Websites
Tables
Table of Statutes
Table of Cases
Table of Attorney General Opinions
Ombuds and Compliance Board Documents
Official Documents
Other State Official Documents
National Official Documents
Uniform Acts and Model Laws and Rules
Table of Secondary Authorities
Treatises and Books
Articles
Annotations
Notes and Comments
Newspapers and Magazines
Index