Open Meeting Laws 3d Ann Taylor Schwing
Entities Subject to Open Meeting Laws
WARNING: The following text is provided without footnotes just for general illustration. You must not rely on it. It is not legal advice. Every state's open meeting law is different and subject to change. Information provided here is no substitute for legal advice from a lawyer licensed in your state. Footnotes are omitted from this excerpt from Open Meeting Laws 3d.
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Factors in the Application of Open Meeting Laws to Committees |
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Private Entities Soliciting Donations to Public Institutions |
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§ 4.1 Entities Subject to Open Meeting Laws
Open meeting laws apply principally to public, collegial, deliberative bodies, that is, multi-member bodies that meet as a group for deliberation and decision making. A key consideration in determining whether an entity is subject to the law is the public nature of the work it does. Additional considerations include the extent to which the entity is supported by public funds and the extent to which the entity has the power to bind the State or a political subdivision of the State. As a general rule, a public body cannot escape open meeting requirements by delegating duties or powers to other entities or persons. Open meeting laws may be applied to private entities when necessary to further the public policies of the open meeting laws, but entities that work for or contract with the government are not necessarily subject to open meeting laws.
Any itemization of the particular entities held subject to or exempt from the open meeting laws is necessarily misleading because entities in different States with the same name may exercise significantly different powers. Even when the names, jurisdiction and duties are the same, different open meeting laws apply different tests to define the entities within or without their scope. Unless the open meeting law specifically identifies particular entities subject to its requirements by name, its language may be drafted or interpreted broadly or narrowly to include or exclude specific entities. As a general rule, States liberally interpret their statutes to include all multi-member public entities that are not clearly excluded. The following sections gather and organize the various authorities relevant to many state and local public entities with as much information on the nature and jurisdiction of the entities as reasonably practical. No determination may be made as to a particular entity without careful examination of the applicable open meeting law and the specific law and facts governing the jurisdiction and operation of the entity itself.
Open meeting laws follow several patterns in identifying the bodies subject to their requirements. Virtually all States list at least some of the bodies subject to the law by category or general description, such as all political subdivisions, all boards of education, all special districts. States may define bodies subject to the law by the manner of their creation, applying the law to all bodies created by the constitution or laws of the State or all bodies created by or pursuant to state or local statute, executive order, ordinance, resolution or legislative act in the legislative or executive branch of government. Manner of creation may be critical to the determination, especially as to whether committees and advisory bodies are subject to the open meeting law. Still other States identify the bodies subject to the law by their receipt or disbursement of public funds. Another frequent defining characteristic is the governmental or public nature of the powers and duties of the body. The nature of the powers granted to the body may be the critical factor as certain laws are applied only to governing bodies, or policy-making bodies, and advisory bodies may be expressly or impliedly excluded or included by the statutes. The manner in which members of the public body are selected, elected or appointed is a determining factor for some public bodies.
Many States employ several of these methods of defining the bodies required to comply with the open meeting law either in overlapping or alternative formulations of the definition. For example, Nevada requires both that the entity “(1) owe its existence to and have some relationship with a state or local government; (2) be organized to act in an administrative, advisory, executive or legislative capacity; and (3) must perform a government function” and that it (4) “must expend or disburse or be supported in whole or in part by tax revenue, or advise or make recommendations to any entity which expends or disburses or is supported in whole or in part by tax revenue.” Moreover, in a provision added in June 2011, the entity musty have been created by the Nevada Constitution or a Nevada statute, a city charter or a city ordinance filed or recorded as required by applicable law, the Nevada Administrative Code, a resolution or other formal designation by a body created by a Nevada statute or a local ordinance, an executive order issued by the Governor; or a resolution or action by the governing body of a Nevada political subdivision. No one element is sufficient alone. Similarly, Texas has five prerequisites: “(1) the body must be an entity within the executive or legislative department of the state; (2) the entity must be under the control of one or more elected or appointed members; (3) the meeting must involve formal action or deliberation between a quorum of members; (4) the discussion or action must involve public business or public policy; and (5) the entity must have supervision or control over that public business or policy.”
Most States apply a single open meeting law generally to both state and local entities. California has adopted two and, until July 2010, Massachusetts had three open meeting laws, each tailored to some degree to the state and local entities subject to the particular statutes. Many States also have specialized statutes imposing additional or different requirements on particular public bodies. The interaction between these statutes and the generally applicable open meeting law varies from State to State. Finally, local jurisdictions may enact local open meeting laws that are consistent with state law, imposing additional or more specific requirements.
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§ 4.4 A. The Federal Government and Multi-Member Federal Agencies
The Government in the Sunshine Act applies to an “agency” within the meaning of the term as defined in the Freedom of Information Act that is headed by a collegial body of two or more individuals, a majority of whom were appointed by the President with the advice and consent of the Senate, and any subdivision of such an agency formally authorized to act or delegated authority to act on behalf of the agency. The Act was intended to ensure that “the public is entitled to the fullest practicable information regarding the decisionmaking processes of the Federal Government.” It defines the term “meeting” to mean “the deliberations of at least the number of individual agency members required to take action on behalf of the agency where such deliberations determine or result in the joint conduct or disposition of official agency business” excepting certain excepted deliberations. Absent an exception, the Act requires that “every portion of every meeting of an agency shall be open to public observation,” applying at any time that members jointly conduct or dispose of agency business and whenever the agency takes formal action.
The Government in the Sunshine Act is complimented by the 1972 Federal Advisory Committee Act (“FACA”) which requires that “[e]ach advisory committee meeting shall be open to the public.” The term “advisory committee” refers to a multi-member body and is defined to mean
any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof . . .
(A) established by statute or reorganization plan, or
(B) established or utilized by the President, or
(C) established or utilized by one or more agencies,
in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government.
Substantial litigation over the meaning of “established or utilized” has resulted finally in a relatively narrow or stringent interpretation of the requirement. As summarized in a 2010 decision, the government “establishes” an advisory committee when the government directly forms it; the government “utilizes” a privately formed advisory committee when agency officials exercise actual management or control over that committee, and, even if formed by a non-government entity, an advisory committee still falls under FACA if the organization forming it is “quasi-public,” meaning that it is technically private but created or permeated by the federal government. The term “advisory committee” does not include any advisory committee if the act of Congress establishing it expressly provides otherwise, and the term expressly excludes:
• any advisory committee established or utilized by the Central Intelligence Agency or the Federal Reserve System;
• any advisory committee established or utilized by the Office of the Director of National Intelligence, “if the Director of National Intelligence determines that for reasons of national security such advisory committee cannot comply with the requirements of this Act”;
• “any committee that is composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government”;
• “any committee that is created by the National Academy of Sciences or the National Academy of Public Administration.” This exception arose after the Department of Health and Human Services was held to have violated FACA when it “utilized” a guide that a National Academy of Sciences committee created on the care and use of laboratory animals, although the Department had not itself established the committee. Congress amended FACA specifically to exclude committees of the National Academy of Public Administration and the National Academy of Sciences. As a result, federal agencies can take advantage of the convening services of National Academy of Public Administration as an alternative to using FACA-chartered committees. In addition, the General Services Administration issued regulations to clarify that the term “utilized” in FACA “does not have its ordinary meaning. A committee that is not established by the Federal Government is utilized within the meaning of the Act when the president or a Federal office or agency exercises actual management or control over its operation.”
• any local civic group whose primary function is that of rendering a public service with respect to a Federal program, or any State or local committee, council, board, commission, or similar group established to advise or make recommendations to State or local officials or agencies;
• any committee established by the judicial branch;
• “[a]ny committee or group created by non-Federal entities (such as a contractor or private organization), provided that these committees or groups are not actually managed or controlled by the executive branch”; and
• “[a]ny committee established to perform primarily operational as opposed to advisory functions. Operational functions are those specifically authorized by statute or Presidential directive, such as making or implementing Government decisions or policy.”
Federal agencies can also create technical advisory committees through permits or licenses that are outside FACA, provided the committees advise the permittee or licensee, not the federal agency itself.
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§ 4.6 B. The State and Statewide Public Entities
A few States apply their open meeting laws to the State itself or, more often, to statewide agencies and entities.
Although States sometimes identify at least some of the public bodies subject to the open meeting law by name or specific description, the most common approach is a more generalized definition. For example, Alaska broadly extends its statute to “[a]ll meetings of a governmental body of a public entity of the state,” defining a “governmental body” to mean
an assembly, council, board, commission, committee, or other similar body of a public entity with the authority to establish policies or make decisions for the public entity or with the authority to advise or make recommendations to the public entity; “governmental body” includes the members of a subcommittee or other subordinate unit of a governmental body if the subordinate unit consists of two or more members.
Alaska defines a “public entity” to mean “an entity of the state or of a political subdivision of the state including an agency, a board or commission, the University of Alaska, a public authority or corporation, a municipality, a school district, and other governmental units of the state or a political subdivision of the state.”
Delaware defines a “public body” to mean,
unless specifically excluded, any regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State, including, but not limited to, any board, bureau, commission, department, agency, committee, ad hoc committee, special committee, temporary committee, advisory board and committee, subcommittee, legislative committee, association, group, panel, council or any other entity or body established by an act of the General Assembly of the State, or established by any body established by the General Assembly of the State, or appointed by any body or public official of the State or otherwise empowered by any state governmental entity, which:
(1) Is supported in whole or in part by any public funds; or
(2) Expends or disburses any public funds, including grants, gifts or other similar disbursals and distributions; or
(3) Is impliedly or specifically charged by any other public official, body, or agency to advise or to make reports, investigations or recommendations.
Kansas has a broad definition, applying its open meeting law to
all legislative and administrative bodies and agencies of the state and political and taxing subdivisions thereof, including boards, commissions, authorities, councils, committees, subcommittees and other subordinate groups thereof, receiving or expending and supported in whole or in part by public funds . . . [and] task forces, advisory committees or subcommittees of advisory committees created pursuant to a governor’s executive order.
New Mexico applies its law to “any public body except the legislature and the courts.” New York identifies “any entity, for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or a committee or subcommittee or other similar body of such public body.” Definitions such as these sweep virtually all public bodies into the scope of the open meeting laws.
A complicating consideration in some States is the fact that an entity may occasionally be a state agency for one purpose but not for another purpose. As a result, the status of a given body is not necessarily or finally determined for purposes of the open meeting law by precedents in other areas of the law.
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§ 4.8 1. State Commissions
State commissions are uniformly subjected to open meeting laws as a general matter, although specific named commissions may be excepted on an individual basis in particular States. Only New York and Tennessee fail to refer expressly to state commissions by name in their identification of public bodies subject to the open meeting law, but state commissions unquestionably satisfy the New York and Tennessee definitions of the bodies subject to their open meeting laws. Absent a specific statutory definition, a “commission” is a public body officially appointed and empowered to perform certain acts or exercise specific jurisdiction of a public nature.
Relatively little litigation has occurred concerning the application of open meeting laws to state commissions. Many commissions were required to meet publicly prior to enactment of the open meeting laws or did so by tradition.
For illustration, specific commissions that have been subjected to the open meeting requirements include
• civil rights commissions, and other commissions charged with protecting the rights of individuals,
• public service and public utilities commissions,
• commissions charged with supervision of public works,
• tax commissions,
• corporation and commerce commissions,
• state ethics commissions and similar bodies,
• and multiple other examples.
A commission cannot avoid application of the open meeting law on the ground that it is only an interim commission.
State lottery, racing or gaming commissions are typically subject to the open meeting laws. The fact that much of the work of a commission must occur in closed session, as may be the case with lottery and gaming commissions, for example, does not justify an implied exemption from the application of the law as to other meetings or subjects. Some States have adopted additional provisions for closed sessions tailored to needs of their lottery and gaming commissions.
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§ 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. In some States, the state university may enjoy special constitutional status that sets the university apart from ordinary schools or other educational institutions in the State. As a result, the open meeting law may not apply with full force or at all to the state university. States may also have specific statutes governing meetings of the regents and similar governing bodies of universities in addition to or in lieu of application of the general open meeting law. One can speculate as to the reasons, but 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 or may not be required to obey open meeting laws and requirements:
• governing bodies of public institutions of higher learning, such as boards of regents and boards of trustees,
• departments within a university,
• admissions committees of public institutions of higher learning,
• 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,
• student government associations and organizations in some States or circumstances, but not others,
• nonprofit corporations or foundations operating for the benefit of a public university or college or the public schools, and
• other associations, committees and entities that are associated with or part of public universities and schools.
Substantial litigation has occurred over application of open meeting laws to search committees for university presidents, deans, chancellors and similar leaders. As reflected in these lawsuits, application of open meeting laws to public schools at any level often presents a tension between the public interest in open government and the privacy rights of particular students and teachers and other individuals whose personal information and specific circumstances may be at issue. This tension has been addressed in most States by permitting executive sessions when the public body considers specific individuals whose privacy interests would be affected by public discussion.
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§ 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,
• attorneys, although regulation of attorneys raises special concerns of separation of powers, altering the usual application of open meeting laws in some States,
• accountants, and
• a wide variety of other regulated professions and businesses.
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 specific individuals present more difficult questions because of the tension between the public’s right to know and individual rights of privacy. Typically, individual proceedings involve not only the specific licensee but also individuals raising complaints or offering information. Their privacy rights are significant, and they may not come forward without some measure of confidentiality. 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.
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§ 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 boards of education
• state alcoholic beverage control boards and commissions,
• state regulatory and advisory boards on health care, drug programs, and workers’ compensation,
• state boards of corrections and
• state boards concerned with taxes and financial matters.
In addition to enacting generally applicable provisions, States may provide that identified state boards are expressly required to comply with the open meeting law. Even state boards with limited focus find themselves subject to the law. The Alabama Aviation Hall of Fame, for example, is included because it is a public agency of the State with a multi-member governing board. The Wisconsin Government Accountability Board is included.
The same general application of the open meeting laws is true for various state and regional entities such as a
• port authority,
• airport authority,
• water and/or sewer authority,
• solid waste authority,
• medical facility authority,
• housing authority,
• redevelopment 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.” Sometimes an authority has some attributes of a private entity but may still be deemed a public body for purposes of the open meeting law.
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§ 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
• an emergency hiring council, and
• public trusts or any entity created by a public trust, including any committee or subcommittee composed of any of the members of a public trust.
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 Delaware statute applies to the Governor’s Council on Equal Employment Opportunity. Louisiana’s open meeting law applies to the Research Park Corporation and its wholly owned subsidiary, Research Park Corporation and Louisiana Technology Park, L.L.C. The Minnesota Agricultural Utilization Research Institute is governed by the open meeting law, excepting “financial information, business plans, income and expense projections, customer lists, market and feasibility studies, and trade secret information.” 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. Virginia includes the Virginia Birth-Related Neurological Injury Compensation Program and its board of directors.
Federal law may require state public bodies to satisfy open meeting requirements in some instances. State Workforce Investment Boards or Councils, for example, are required by federal law to
make available to the public, on a regular basis through open meetings, information regarding the activities of the State board, including information regarding the State plan prior to submission of the plan, information regarding membership, and, on request, minutes of formal meetings of the State board.
This federal law does not prescribe the character and scope of its open meeting requirement, leaving a question whether to look to federal open meeting requirements or to state law.
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§ 4.20 C. Districts and Other Regional Public Entities
Open meeting laws apply to a wide variety of regional governmental entities which may be specifically identified or simply identified as all districts or all special purpose districts. Similar public bodies may be included in open meeting laws without specifically using the term “district.” Idaho, for example, encompasses “any regional board, commission, department or authority created by or pursuant to statute.” Similarly, in North Carolina, a telephone membership corporation is a public agency subject to the open meeting law. The Arizona early childhood development and health board and regional partnership councils are public agencies subject to the open meeting law.
The terms “district” and “special district” may not be defined in the open meeting law and vary in meaning from State to State, but they are generally understood to refer to a “ ‘limited governmental structure created to bypass normal borrowing limitations, to insulate certain activities from traditional political influence, to allocate functions to entities reflecting particular expertise, to provide services in otherwise unincorporated areas, or to accomplish a primarily local benefit or improvement.’ ” Among the specifically identified regional public bodies commonly subjected to open meeting requirements are
• school districts,
• rural water districts, water authorities, water commissions, water conservancy districts,
• natural resource districts,
• sanitary districts,
• levee districts, drainage districts, watershed districts, and irrigation districts,
• rural fire protection districts and rural ambulance service districts,
• hospital districts and other districts charged with health-related responsibilities,
• senior citizen service districts,
• recreation districts, and park districts, and
• development, improvement and conservation districts.
Open meeting laws typically apply to public bodies formed by two or more local public bodies to serve a public purpose that the local public bodies could have fulfilled individually. These public bodies often operate in an expanded region serving their parent entities and may be known as joint powers agencies in California or agencies created by a 28E agreement in Iowa. Montana requires open meetings “of associations that are composed of public or governmental bodies . . . and that regulate the rights, duties, or privileges of any individual.” Open meeting laws may apply to a preliminary committee or similar body established even informally by several public bodies to explore whether to form a regional entity.
Other variously named regional public entities subject to open meeting law requirements include
• redevelopment agencies,
• community and industrial development authorities,
• regional planning commissions,
• transportation authorities,
• regional councils, and other regional bodies, and
• drug task forces and other task forces.
Differing treatment may be appropriate for an occasional entity. The Southern Minnesota Municipal Power Agency (“SMMPA”) is a municipal corporation and a political subdivision of the State, but the enabling legislation for SMMPA provided that the agency may exercise all powers “which might be exercised by a natural person or a private corporation in connection with similar property and affairs.” A private corporation is not normally required to comply with the open meeting law, and SMMPA is engaged in the activities of a private utility, so this statutory language may reasonably be interpreted to mean that SMMPA is not subject to the open meeting law.
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§ 4.22 D. Political Subdivisions of the State
Absent state constitutional provisions to the contrary, state legislatures have plenary constitutional power to regulate the activities of the political subdivisions of the State and may require that meetings of the governing bodies of political subdivisions be public. A significant majority of the States expressly apply their open meeting laws to all political subdivisions in the State. Although varying to some degree from State to State, the term “political subdivision” typically means “all political subdivisions of this state, including without limitation all counties, cities and towns, school districts and special districts.” The key attribute of a political subdivision is its authority to perform governmental functions.
For example, Hawaii applies its open meeting law to all political subdivisions of the State, expressly empowering each political subdivision to impose more stringent requirements relating to the openness of meetings. Indiana applies its law to “[a]ny county, township, school corporation, city, town, political subdivision, or other entity, by whatever name designated, exercising in a limited geographical area the executive, administrative, or legislative power of the state or a delegated local governmental power.” Missouri applies its law to any legislative, administrative or governmental entity created by order or ordinance of any political subdivision of the State. New Hampshire broadly defines the entities subject to its open meeting law to include: “Any legislative body, governing body, board, commission, committee, agency, or authority of any county, town, municipal corporation, school district, school administrative unit, chartered public school, or other political subdivision, or any committee, subcommittee, or subordinate body thereof, or advisory committee thereto.” This definition expands the earlier New Hampshire definition: “Any board, commission, agency or authority, of any county, town, municipal corporation, school district, or other political subdivision, or any committee, subcommittee or subordinate body thereof, or advisory committee thereto.” Moreover, New Hampshire adds coverage for “[a]ny corporation that has as its sole member the state of New Hampshire, any county, town, municipal corporation, school district, school administrative unit, village district, or other political subdivision, and that is determined by the Internal Revenue Service to be a tax exempt organization pursuant to section 501(c)(3) of the Internal Revenue Code.”
The remaining States typically sweep political subdivisions within the scope of their open meeting laws through the use of different terminology. Alabama identifies:
All boards, bodies, and commissions of [state] political subdivisions or municipalities which expend or appropriate public funds; all multimember governing bodies of departments, agencies, institutions, and instrumentalities of . . . political subdivisions or municipalities, including, without limitation, all corporations and other instrumentalities whose governing boards are comprised of a majority of members who are appointed or elected by the state or its political subdivisions, counties or municipalities . . . .
Illinois includes
all legislative, executive, administrative or advisory bodies of the State, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or commissions of the State, and any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue.
Massachusetts applies its open meeting requirements to “a multiple-member board, commission, committee or subcommittee within the executive or legislative branch or within any county, district, city, region or town, however created, elected, appointed or otherwise constituted, established to serve a public purpose.” Minnesota itemizes a number of local bodies and then applies its law also to any “other public body.” Nevada applies its statute to “[a]ny administrative, advisory, executive or legislative body of . . . a local government consisting of at least two persons which expends or disburses or is supported in whole or in part by tax revenue or which advises or makes recommendations to any entity which expends or disburses or is supported in whole or in part by tax revenue” created by the Nevada Constitution or a Nevada statute, a city charter or a city ordinance filed or recorded as required by applicable law, the Nevada Administrative Code, a resolution or other formal designation by a body created by a Nevada statute or a local ordinance, an executive order issued by the Governor; or a resolution or action by the governing body of a Nevada political subdivision. The New York open meeting law applies to “any entity, for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof, or for a public corporation . . . or a committee or subcommittee or similar body of such public body.” Oklahoma applies its law to
the governing bodies of all municipalities located within this state, boards of county commissioners of the counties in this state, boards of public and higher education in this state and all boards, bureaus, commissions, agencies, trusteeships, authorities, councils, committees, public trusts or any entity created by a public trust, including any committee or subcommittee composed of any of the members of a public trust or other legal entity receiving funds from the Rural Economic Action Plan Fund as authorized by Section 2007 of Title 62 of the Oklahoma Statutes, task forces or study groups in this state supported in whole or in part by public funds or entrusted with the expending of public funds, or administering public property, and shall include all committees or subcommittees of any public body.
Oregon identifies “any regional council, county, city or district, or any municipal or public corporation, or any board, department, commission, council, bureau, committee, or subcommittee or advisory group or any other agency thereof.” Tennessee applies its law to every governing body, which is defined to include the members of a public body with the authority to make decisions for or recommendations to a public body on policy or administration.
Like some other States, Maryland applies its open meeting law to public entities created by the constitution, statutes, county or municipal charters, ordinances, rules, resolutions, bylaws, or executive orders. The open meeting laws in these States will apply to political subdivisions depending on the manner of their creation and the specific language of the relevant statutes.
Although the term “political subdivision” is broadly encompassing of many regional and local public bodies, it is not limitless. Typically a single person is not a political subdivision. For example in Colorado, the term “political subdivision of the state” is defined to include “any county, city, city and county, town, home rule city, home rule county, home rule city and county, school district, special district, local improvement district, special improvement district, or service district.” The open meeting law applies to “any board, committee, commission, authority, or other advisory, policy-making, rule-making, or formally constituted body of any political subdivision of the state and any public or private entity to which a political subdivision, or an official thereof, has delegated a governmental decision-making function.” A citizens advisory board appointed by an elected district attorney fell outside the open meeting law because a district attorney is not a political subdivision of the state or a state public body or otherwise within the law.
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§ 4.24 E. Local Public Entities
There are compelling justifications for liberal application of the open meeting laws to local public entities. Local bodies may have the most significant day-to-day impact on the lives of their citizens and may be the most subject to the influence of public opinion. The smaller geography of the local public body makes attendance at open meetings a realistic possibility for all the persons governed by the body, unlike state bodies that are meaningfully accessible only to those who live near the meeting location or those who are unusually interested in a matter before the body and able to travel. Some States provide for greater rights of public participation in meetings of local public bodies.
Colorado’s open meeting law originally applied only to statewide public bodies but was amended in 1991 to extend to local public bodies. Florida’s constitution requires that meetings of “any collegial public body of a county, municipality, school district, or special district, at which official acts are to be taken or at which public business of such body is to be transacted or discussed, shall be open and noticed to the public.”
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§ 4.26 1. Cities and Towns
Open meeting laws typically apply to cities and towns and similar local political subdivisions within the State or to their governing bodies. Application of open meeting requirements to such local public entities is especially significant because these entities operate in the same locale as the citizens they serve, making citizen participation in government readily available to the public. As a result, cities, towns, and municipalities, however they may be denominated in a particular State, are especially appropriate public entities to be subjected to the requirements of the relevant open meeting act.
Cities may impose their own open meeting requirements by ordinance, so long as the requirements are more stringent, more detailed, or equivalent to the applicable state law. Hawaii expressly so provides, but no express authorization is necessarily required. Absent an exception in the state law, cities could not enact a local ordinance requiring less openness, less notice or other diminishment of open meeting requirements in the state law. Examples of cities with open meeting ordinances include
• Tucson, Arizona, enacted in 1999,
• San Francisco, California, enacted in 1998,
• Dover, Delaware,
• New Orleans, Louisiana, enacted in 2009, and
• Akron, Ohio, enacted as part of the home rule city charter before 1965.
Alternatively, open meeting requirements may be imposed on cities in special acts of the state legislature. For example, the City of Montgomery, Alabama follows the mayor-council form of government governed by a 1973 Act of the legislature ratified in a special election. The Act vests power in the council, requires “regular public meetings of the council” and provides: “ ‘No resolution, by-law or ordinance . . . appropriating any money for any purpose . . . shall be enacted except at a regular public meeting of said council or an adjournment thereof.’ ”
Home rule cities may be expressly made subject to the generally applicable open meeting law in the State. Home rule cities in other States may escape the application of the state open meeting requirements only to be subjected to charter requirements for open meetings. The Ohio Constitution, Article 18, section 3 has been held to provide that charter cities are not subject to the open meeting law., but the charters of Ohio charter cities contain open meeting requirements of their own that may be more strict than those in the state open meeting law. In other States, home rule charter cities and other political subdivisions remain subject to the state open meeting law.
In States that hold town meetings as a form of town government, the open meeting law may or may not apply to the annual town meeting. In Wisconsin, for example, the annual town meeting is not a governmental body if it is held on first Tuesday in April. In Massachusetts, the term “meeting” expressly excludes a town meeting even if a quorum of a public body is in attendance. In Oklahoma, town meetings shall comply with the open meeting law if any business other than election of the mayor will occur. In Nebraska, when the electors come together at the annual meeting to exercise the powers granted to them by statute, they become a governing body of a political subdivision and are thus a public body subject to the notice, agenda and other requirements of the open meeting law.
By definition, of course, the town meeting is open to the public or the inhabitants of the town or the registered voters in the town, and advance notice of the meetings is required, whether by the open meeting law, constitution, or other law. Town meetings are largely a northeastern phenomena, although small towns in Montana and Nebraska may adopt the town meeting form of government. Town meetings are a form of direct democracy in which all the qualified inhabitants meet, deliberate, act and vote as individuals in the exercise of their corporate powers, with each qualified inhabitant having the right to discuss and vote on every question
presented.
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§ 4.28 2. Counties, Boroughs and Parishes
Like municipalities, counties, boroughs, and parishes or their governing bodies are typically subject to the open meeting laws. Statutes that do not expressly identify these public entities as subject to their open meeting laws include them within the political subdivisions that are subject to the law.
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§ 4.30 3. Local Commissions
Many States impose their open meeting laws on all local commissions. Among the specific types of commissions commonly subjected to open meeting requirements are
• local planning and building commissions,
• annexation study commissions
• county convention and visitor commissions or tourism commissions,
• hospital and safety commissions,
• public works commissions,
• local civil rights commissions,
• county election commissions, and
• local civil service commissions.
The broad sweep of the open meeting laws does not extend to the Denver Election Commission, created by constitutional grant of power under the charter of Denver which is a home rule city, because the legislature cannot divest a home rule city of its plenary power to deal with municipal elections.
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§ 4.32 4. Local Boards
Many States apply their open meeting laws to all local boards. A “board” is commonly understood to be a group of persons organized under the authority of law to exercise certain jurisdiction, have oversight or control over certain matters, or to discharge certain functions of a managerial, representative or fiduciary character.
Boards that control zoning decisions are or have been frequently subject to open meeting requirements, including zoning hearing boards, boards of zoning appeals and an airport zoning board of appeals. Similarly, various local taxing entities such as a county excise board, a board of assessment appeals, and a board of estimate and apportionment are likely to be subject to the open meeting law.
At least one court has observed that the policy of the open meeting laws is particularly applicable to schools. Certainly, the open meeting laws apply generally to school districts, public school boards and boards of education. The open meeting laws also apply to a school improvement council, a school board sex education policy task force, the representative council of Michigan High School Athletic Association, building leadership teams created by a school district, charter schools and other organizations closely related to the public schools. School advisory councils that perform functions as directed by school boards in Florida, including assistance in preparation of budgets and preparation and evaluation of school improvement plans are subject to open meeting requirements.
Other boards that have been found subject to the open meeting law requirements include
• local boards of health, hospital boards, and local health councils,
• local retirement boards,
• boards of public utilities,
• county equalization boards,
• county concealed weapons licensing boards,
• sheriff’s merit boards and similar boards having jurisdiction over police and firefighters
• boards of sewer or parking authorities, and
• other boards.
States that limit the application of their open meeting laws to public bodies that have policy making power or otherwise limit the application of the law to specifically identified types of bodies may find that certain boards fall outside the application of their laws. For example, a citizen review board created to advise the mayor of Omaha fell outside the Nebraska statute because the board was only empowered to make a recommendation to the mayor regarding proper disposition of citizens’ complaints before it; it reported to the mayor rather than to the City Council and contained no members of the Omaha City Council; it was clearly neither the “governing body” of the City of Omaha nor an advisory committee to that governing body, nor an independent board or commission.
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§ 4.34 5. Other Local Public Bodies
Other local public bodies can occasionally be found that do not fall into the categories already discussed.
Hawaii applies its open meeting law to “neighborhood boards overseen by a neighborhood commission of the city and county of Honolulu, and such other neighborhood boards as may be created in other counties and overseen by a county-based commission.” Special provisions govern notice, proceedings with and without a quorum, attendance at informational meetings and communications among board members and action on unanticipated events.
Indiana defines the term “public agency” to include
Any entity which is subject to either:
(A) budget review by either the department of local government finance or the governing body of a county, city, town, township, or school corporation; or
(B) audit by the state board of accounts that is required by statute, rule, or regulation.
In addition, Indiana includes in its definition “[a]ny building corporation of a political subdivision of the state of Indiana that issues bonds for the purpose of constructing public facilities.”
Local medical authorities in Michigan that comprise and govern the statewide emergency medical services system are subject to the open meeting law.
Nebraska law provides that vacancies in the board of county commissioners shall be filled by the county clerk, county attorney, and county treasurer, without providing any particular procedure for the appointment process. The Nebraska Attorney General has ruled that the three designated individuals constitute a “subunit” or “other body” subject to the open meeting law, finding this conclusion supported by the very breadth of the listing of entities subject to the open meeting law, the broad and liberal construction given to the law, and the provision in the law that “ ‘nothing in this section [pertaining to closed sessions] shall permit a closed meeting for discussion of the appointment or election of a new member to any public body.’ ”
Also in Nebraska, county agricultural societies, organized under the Nebraska statutes, are subject to the public meetings statute, in part, because they have the right to receive funds from the public revenue, as is a county hospital authority created under the Hospital Authorities Act as a “public corporation and body politic” with broad powers to sue and be sued, to purchase and hold property of every kind, to purchase, construct and operate hospitals within the territorial limits of the hospital authority and to issue bonds under the Act.
The ethics review board of the city of Las Vegas is a public body, required to hold open meetings to consider the application of a local ethics code to the past conduct of an elected city councilperson. A trust in furtherance of public functions is subject to the Oklahoma open meeting law.
A collection of public officials who meet together is not necessarily a public body, even if they meet on a regular basis. For example, in North Dakota, a mayor, who was a member of the city council, scheduled regular department head meetings for the mornings of the regular city council meetings. The department head meetings were held to discuss issues that had arisen in each department and develop possible solutions to be presented at the city council meeting. No business was conducted at the department heads’ meetings, and the department heads were not delegated any authority by the city council. The Attorney General ruled that these meetings were not subject to the open meeting law. Similarly, in Mississippi, the Lauderdale County Council of Government was formed in 1985 as a voluntary association of officials seeking innovative solutions to public matters composed of the mayors and city council members of Meridian and Marion, the supervisors of Lauderdale County, the state legislative delegation from Lauderdale County, members of Congress from the third Congressional District and two Senators. The Mississippi Attorney General concluded that this organization could meet in closed session without violating the open meeting law but that its constituent members would have to take care not to violate the law.
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§ 4.36 F. Committees and Other Subordinate Public Bodies
The term “committee” is inconsistently used in various States to refer to a group of individuals charged with particular responsibility that may or may not be a subordinate body of another entity. A “committee” is “ ‘a person or a group of persons elected or appointed to perform some service or function, as to investigate, report on, or act upon a particular matter’ ” or “ ‘[a] subordinate group to which a deliberative assembly or other organization refers business for consideration, investigation, oversight, or action.’ ”
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§ 4.38 1. Committees That Are Not Subordinate Bodies
Committees, when that term is not used to refer to subordinate entities, are typically subject to open meeting acts in the same manner as boards or commissions.
Several States apply their open meeting laws to a committee of the State.
A public entity subject to an open meeting requirement cannot escape the requirement by resolving itself into a committee of the whole. A “committee of the whole” generally refers to a committee composed of all the members of the public body, rather than a committee composed of some lesser number, but the term may be used when a public body meets, discovers that it lacks a quorum and seeks to make use of the failed meeting for information gathering. The term has been a euphemism used to avoid compliance with open meeting laws in some States.
Tennessee provides that a governing body remains a governing body for purposes of the open meeting act “notwithstanding the fact that such governing body may have designated itself as a negotiation committee for collective bargaining purposes.”
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§ 4.40 2. Committees That Are Subordinate Bodies
Committees and their subcommittees, in the sense of subordinate entities of the foregoing public entities, are also expressly subjected to the requirements of open meeting laws in many statutes. Committees are subject to the law in other States even though their open meeting laws do not specifically identify committees as within their scope.
Any alternative to subjecting subentities of an entity to the open meeting act requirements either as a general matter or when the subentities exercise decision-making power would permit a public entity to avoid compliance with the law by transferring consideration and determination of certain subjects to a subentity. Thus, even though the statute was silent on the subject of committees, the Arkansas Supreme Court observed that both a committee and the board that created the committee dealt with the problems that confronted the institution they represented, with the committee typically delving more deeply into the problem than the board itself. Board members may form their conclusions at the committee meeting with no particular discussion of the issue at the board meeting so that, if excluded from the committee meeting, the public might have no opportunity to observe or be heard on the issue. Finding it “incongruous that a parent body cannot go into executive session (except for personnel matters) but its component parts (the committees) which actually investigate the complaints, and act on those complaints by making recommendations to the board, are at liberty to bar the public from their deliberations,” the court ruled that a public meeting occurs subject to the open meeting requirements when a committee meets for the transaction of business. As the court reasoned: “Surely a part (of a board) is not possessed of a prerogative greater than the whole.”
The difficulties of relying on the law of different States to determine whether a particular type of committee is subject to open meeting requirements are illustrated by consideration of the university committees established in conformity with the federal Animal Welfare Act to oversee compliance with standards governing use and treatment of animals in research facilities. In Massachusetts and New York, these committees are not required to follow open meeting requirements as their deliberations do not constitute “meetings.” The committees are not deemed to be considering public policy matters to arrive at decisions on any public business of the State, which is the test prescribed by the Massachusetts and New York statutes. Virginia found the committee not subject to the law because it was not “an organization having an independent status which is charged by law with the governance of, or responsibility for, some discrete public agency.” The committee is not subject to the Louisiana public records law because it was created under federal law and was not accountable to the state university. The same committees in Vermont are subject to the open meeting law because they are appointed to serve an advisory or administrative function.
Another illustration appears in conflicting decisions as to a citizen’s planning committee appointed by the town council to act in an advisory capacity in working with the planning consultant that has been held subject to open meeting requirements in Florida, but not under a former California statute.
Florida distinguishes most committees that are subject to its open meeting law from purely fact-finding subordinate committees that are excepted from the law. As one court explained:
The Discharge of Firearms Review Committee is a three-person panel made up of the deputy chiefs of the Administration, Field Operations, and Criminal Investigation divisions. The committee makes factual findings, which it then passes on to the chief. In short, the committee is nothing more than a meeting of staff members who serve in a fact-finding, advisory capacity to the chief. The Government-in-the-Sunshine Law is not applicable to meetings of staffers serving in this function.
Excepting such committees has the same effect as deeming investigation as not constituting a meeting. If the committee has any role in the decision, even ranking options or making recommendations, the exception does not apply.
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§ 4.42 3. Factors in the Application of Open Meeting Laws to Committees
The open meeting laws themselves sometimes identify specific prerequisites to the application of their requirements to committees. When interpreting the statutes, courts and attorneys general have identified other characteristics that influenced their decisions in favor of or against the application of open meeting requirements to particular committees. Relevant considerations in the inclusion or exclusion of the committee from the obligation to comply with the open meeting requirements include
• whether the committee is in the executive, legislative or judicial branch of government. Committees in the judicial branch are significantly less likely to be subject to open meeting requirements.
• whether the committee is empowered to exercise traditional governmental powers such as the power to tax, to take by eminent domain or to regulate conduct coercively.
• whether and the extent to which the parent entity has delegated policy-making or decision-making power to the committee. This factor looks to whether there has been a delegation, not to the manner in which the delegation was exercised. States vary in the extent to which public bodies are permitted to delegate and, if so, the manner in which they may do so.
• the extent to which the subordinate entity exercises actual or de facto decision-making authority or conversely performs purely advisory, administrative or ministerial tasks or acts in a purely fact-finding capacity. Most or all activities that involve selection of a few from the many, as in winnowing through candidates to finalists, will involve decision making rather than ministerial activity unless the delegation is remarkably precise and denies discretion to the subordinate body. As a result, disputes will arise as to application of this terminology.
• whether the parent entity itself is a public body subject to the open meeting law.
• whether the committee is composed exclusively of members of the public body, includes at least a quorum of the parent public entity, includes a substantial number of the members of the parent body, includes a mixture of members of the public body and other individuals, is comprised only of staff members of the public body, or is composed entirely of persons who are not members of the public body. Whether the open meeting act applies to a committee that is composed of individuals who are not members of the public body in issue who merely investigate and advise the public body on designated matters in a nonbinding manner may depend on the specific language of the open meeting statute or on the interpretation given the statute in the particular State. In Georgia and Oklahoma, such a committee is excepted from the open meeting act. In Arizona, Florida, South Carolina and Wisconsin, however, such a committee is subject to the law.
• who appoints or selects the members of the committee.
• whether the committee’s members have executive authority and experience.
• whether members of the public body who serve on the committee do so in their official capacity, which may be established by their receipt of per diem compensation for service on the committee, by their appointment to the committee by the public body or in another official manner, and by other indicia of official status.
• whether and the extent to which the committee is supported by public funds. Although a relevant consideration in all States, this element is particularly important when public support is part of the definition of a public body. Even in States that require support by public funds as an element of the definition of a public body, however, the open meeting law may be interpreted to require determination of the status of the committee by reference to that of its parent body, rather than by reference to its own characteristics.
• whether the meetings themselves are paid for with public funds or occur in public buildings.
• whether the committee was created by or is operating pursuant to statute, ordinance or other formal action or came into being informally. Creation by or pursuant to constitution, statute, ordinance or executive order is an express element of the definition of the bodies subject to the open meeting law in some States. Even if not an express element of the definition, the formal or informal manner of the committee’s creation may bear on the determination whether a particular committee should be subject to the law. A public body cannot avoid the application of the open meeting to its committees by inserting an intermediate body to create them.
• whether the committee has separate legal existence, as a corporation, limited liability company, partnership or the like.
• whether there is evidence that the committee was deliberately created to enable a public body to do public business in private.
• whether the committee is a permanent or long-lived entity, an ad hoc body that forms, performs a specific task and dissolves itself when the task is complete, or an ad hoc group with no defined membership or duration.
• the frequency of the committee meetings.
• whether a particular statute outside the open meeting law itself requires that the committee hold open meetings.
As a general rule, absent compulsion by a particular state definition of the public bodies subject to the law, none of these factors is determinative standing alone.
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§ 4.44 4. The Special Problem of Advisory Committees
“Advisory committees have long been recognized as special problems. . . . Each new arrangement must be examined anew and in its own context.” Advisory committees may be called task forces or working groups.
Some open meeting statutes apply only to “governing” bodies or bodies with decision-making power. Other statutes expressly extend to policy-making bodies. Still others expressly apply to advisory committees. Groups that have purely fact-finding, informational, recommendatory or advisory purposes with no decision-making power are thus excluded from the scope of some open meeting laws. Even in the face of such an exclusion, the open meeting law is not necessarily restricted to those entities with final, binding authority but may apply to those exercising de facto decision-making authority or those created and empowered to make recommendations. When the committee performs functions on behalf of a public body that affect members of the public, the committee may properly be subjected to the open meeting requirements. Moreover, a committee composed entirely or even partially of members of the parent body may be subject to the law even if its role is advisory, because each committee member could become committed as to matters on which foreseeable action would be taken by the parent, and the public would have no opportunity to be heard because the action of the parent body in a public meeting would be only an affirmation of the various secret committee meetings that had been held. Truly advisory committees may be excluded from required compliance with open meeting laws in some States. In each State, the extent to which the subordinate entity exercises actual or de facto decision-making authority or is limited to purely advisory, administrative or ministerial tasks is critical to the determination whether the open meeting law will apply.
In several States, judicial or attorney general interpretation of the open meeting law to exclude advisory committees has resulted in amendment of the law to include them.
Connecticut provides that public agencies may petition the Freedom of Information Commission before creating a committee that is to be composed entirely of individuals who are not members of the agency for a determination that the committee may be exempted from the application of one or more provisions of the open meeting law. The commission is empowered to grant such exemptions if it finds, based on reliable, probative and substantial evidence, that the public interest in the exemption clearly outweighs the public interest in applying the law to the proposed committee.
New Hampshire defines an advisory committee as
any committee, council, commission, or other like body whose primary purpose is to consider an issue or issues designated by the appointing authority so as to provide such authority with advice or recommendations concerning the formulation of any public policy or legislation that may be promoted, modified, or opposed by such authority.
The Federal Advisory Committee Act was enacted to control the establishment of advisory committees to the federal government and to assist the public to monitor their existence, activities and cost in order to reduce unnecessary expenditures. The Act defines an “advisory committee” as any committee, board, commission, council, conference, panel, task force, or other similar group or any subcommittee or subgroup thereof, that is established by statute or reorganization plan, established or utilized by the President, or established or utilized by one or more agencies to obtain advice or recommendations on matters of government policy for the President or an agency or officer of the federal government. A group is an advisory committee only if it renders advice or recommendations as a group, not as a collection of individuals. Advisory committees must have a clearly defined purpose, have a membership that is “fairly balanced in terms of the points of view represented and the functions to be performed,” and “not be inappropriately influenced by the appointing authority or by any special interest.” The term excludes the Advisory Commission on Intergovernmental Relations, the Commission on Government Procurement, any committee that is composed wholly of full-time officers or employees of the federal government, advisory committees established or utilized by the Central Intelligence Agency or the Federal Reserve System, local civic groups whose primary function is to render a public service with respect to a federal program, and state or local bodies established to advise or make recommendations to state or local officials or agencies. The term excludes committees created to give advice to persons other than the President or an agency or officer of the United States, such as a panel created to give advice to health care practitioners. Advisory committee meetings within the scope of the Act are required to be open to the public. Unless the President determines otherwise for reasons of national security, timely notice of all advisory committee meetings must be published in the Federal Register and additional notice must be given to ensure that interested persons are notified of meetings before they are held. Advisory committees terminate within two years unless they are renewed by the President or federal officer who created them before the two-year period expires or unless the Act of Congress that created them provided a different duration.
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§ 4.48 G. Single Person Public Bodies
Some States address the extent to which a single human can be a public entity or a governing body of a public entity subject to the open meeting act. In most jurisdictions that have addressed the issue, one individual alone is expressly insufficient to constitute a public body within the meaning of the open meeting law either as a general matter or as to specific public bodies.
Many States expressly eliminate single person public bodies by statute. For example, Arizona defines “public body” in part as including “all multimember governing bodies of departments, agencies, institutions and instrumentalities of the state or political subdivisions.” Idaho defines a “governing body” as “the members of any public agency which consists of two (2) or more members, with the authority to make decisions for or recommendations to a public agency regarding any matter.” The Idaho State Department of Agriculture headed by a single director is not a governing body. New Jersey provides that, to be covered by the open meeting law, “a public body must be organized by law and be collectively empowered as a multi-member voting body to spend public funds or affect persons’ rights . . . .” Tennessee defines a “governing body” as the “members of any public body which consists of two (2) or more members, with the authority to make decisions for or recommendations to a public body . . . .” Washington defines the term “governing body” as “the multimember board, commission, committee, council, or other policy or rule-making body of a public agency . . . .” The Wisconsin statute provides that a meeting is rebuttably presumed to be governed by the open meeting law if half of members of public body are present, a provision that is inconsistent with single person bodies. In many or all of these States, state agencies headed by a single person are subject to the state administrative procedure act which imposes some open meeting requirements for rule making and contested hearings.
The issue has not been expressly addressed in a number of States. The Alabama statute refers to boards, bodies, commissions and committees, all of which reasonably assume multiple members, and to “all multimember governing bodies of departments, agencies, institutions, and instrumentalities of the executive and legislative departments of the state or its political subdivisions or municipalities.” That specific reference to multimember bodies could support the argument that the more general references need not have multiple members. In Arkansas and Nebraska, the law applies to “governing bodies,” a phraseology that supports a requirement for multimembered bodies. The Georgia, Hawaii, Kentucky, Louisiana, Massachusetts, New Hampshire, New Mexico, Pennsylvania, South Carolina and Texas statutes apply to gatherings of a quorum of the members of the public body, which necessarily means the public body has multiple members. Similarly, the Illinois statute applies to gatherings of majority of quorum, or, for a five-member public body, a quorum, of the members, again requiring multiple members. The Maine open meeting law applies to the legislature, its committees and subcommittees composed of at least three individuals, boards, commissions, agencies and authorities, associations and corporations, all of which bodies are commonly understood to be composed of more than one member or governed by boards composed of more than a single member. Similar reasoning applies as to the Rhode Island and South Dakota statutes. Minnesota requires the “votes of the members” of public bodies to be recorded. The Vermont statute speaks of “a public body” but the minutes must include “[a]ll members of the public body present.”
Court and attorney general opinions frequently require that a public body contain more than a single member in order to fall within the scope of the open meeting law. A Colorado court held that a district attorney is not a political subdivision or a state public body, so a district attorney’s advisory board is not governed by the open meeting law. Florida court decisions do not apply its open meeting act unless there has been a meeting between two or more public officials, but attorney general opinions hold that a single individual who has been delegated decision-making authority on behalf of a board or commission is subject to the law. Michigan recognized the infeasibility of requiring an individual to deliberate in an open meeting and identified a variety of indications in the statutory language in holding that the open meeting act did not apply to individuals. The Michigan Supreme Court held that a public body cannot avoid the open meeting law by delegating responsibility to a one-member committee. Oklahoma holds that a single person is not a committee. The Wisconsin court concluded that “it would be absurd, if not impossible, to require an open meeting notice whenever a body of one would set out to contemplate a pending issue. We do not believe the legislature intended to require public soliloquies by single-member governmental bodies.” The court held that the open meetings law “is not meant to apply to single-member governmental bodies.” Section “19.82(2) speaks of a meeting of the members, plural, implying there must be at least two members of a governmental body.”
A small number of States take a different view and provide that a single person can be a public body subject to the open meeting law. Texas defines a “governmental body” as “a board, commission, department, committee, or agency within the executive or legislative branch of state government that is directed by one or more elected or appointed members.” The Texas open meeting requirement applies not only to meetings of a quorum of the members of a public body but also to meetings of a quorum of the members of a public body and any other person. A 1989 Connecticut appellate decision found it “clear from the definition of ‘public agency’ in General Statutes § 1-18a(a) [now 1-200(1)(a)] that a public agency may consist of one member only.” The term “meeting,” however, is defined in Connecticut as “any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency.”
Although the principal definitions of public governmental bodies in Missouri require multimember bodies, the definition of a “quasi-public governmental body” subject to the open meeting law applies to “any person, corporation or partnership organized or authorized to do business in this state [under specified laws], or unincorporated association meeting specified tests. The term “person” apparently refers to a single human person, as the remainder of the definition sets out the other types of persons normally recognized. The Missouri statute governs both public meetings and public records, and a single person can hold records even if a single person cannot hold a meeting.
Although the Kentucky statute refers to “meetings of a quorum of the members of any public agency,” the appellate court held that a proceeding before the mayor fell within the law because it defines “meetings” as “all gatherings of every kind” and defines “public agency” to mean “every state or local government board, commission and authority.”
Even if a State holds that a single person cannot be a public body as a general proposition, the State may apply the open meeting law to a single individual to whom a public body has delegated decision-making authority. The Florida Attorney General considered the issue in the context of meetings between the chair of a redevelopment agency and the applicant selected by the agency for the position of executive director, to negotiate an agreement of employment to be brought back to the agency’s governing body for final approval:
If the chairman of the community redevelopment agency is authorized only to explore various contract proposals with the selected applicant, with such proposals being related back to the governing body for consideration, the discussions between the chairman and the applicant are not subject to the Government in the Sunshine Law. If, however, the chairman has been delegated the authority to reject certain options from further consideration by the entire governing body, he is performing a decision-making function that must be conducted in the sunshine.
Alternatively, a delegation to a single individual may effectively remove the delegated subject matter or decision from the coverage of the open meeting law.
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§ 4.100 I. 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 by private persons 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, is performing a governmental function, was created by a public entity, and/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.
As the New Hampshire courts have emphasized: “ ‘Any general definition can be of only limited utility to a court confronted with one of the myriad organizational arrangements for getting the business of government done. The unavoidable fact is that each new arrangement must be examined anew and in its own context.’ ”
The Maryland courts explain the essential difference between a public and a private corporation:
“A public corporation is an instrumentality of the state, founded and owned by the state in the public interest, supported by public funds, and governed by managers deriving their authority from the state. Public institutions, such as state, county and city hospitals and asylums, are owned by the public and are devoted chiefly to public purposes. On the other hand, a corporation organized by permission of the Legislature, supported largely by voluntary contributions, and managed by officers and directors who are not representatives of the state or any political subdivision, is a private corporation, although engaged in charitable work or performing duties similar to those of public corporations.”
A quasi-public corporation occupies the middle ground between a public and a private corporation, generally having the functions of the former and the structure of the latter.
There is substantial variation among the States in the identification of private entities that may be subject to the open meeting laws. In some instances, the State may expressly provide that a particular named entity shall or shall not 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, the public or private character of the person(s) who created it, and whether it was created by a single individual or a multi-member body,
• 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,
• whether the private entity’s employees are public employees or enjoy public benefits such as participation in a public retirement system,
• the character of the powers exercised by the entity in relation to traditional governmental powers,
• the extent to which the entity sets policy,
• the purpose for which it was formed,
• 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,
• the degree of access that government bodies have to the private corporation’s records,
• whether the entity is nonprofit or for profit,
• 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 sets policy about and controls funds management for receipt, deposit, withdrawal, and expenditure of tax-derived funds,
• whether the private entity would continue to exist and function if its relationship with the public body terminated,
• the public or private identity of the owner of the entity’s assets if it dissolved,
• 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 the private entity is performing a governmental function effectively as the alter ego or delegate of the public body that created the private entity,
• whether a contract or statute specifically identifies the corporation or other private entity as subject to the law, and
• in the totality of the circumstances, a combination of these factors.
Connecticut applies its open meeting law to nonprofit development corporations and to “[a]ny person to the extent such person is deemed to be the functional equivalent of a public agency pursuant to law.” Its “functional equivalent” test derives from the federal test, applying a four-part test that examines (1) whether the entity performs a governmental function; (2) the level of its government funding; (3) the extent of government involvement or regulation; and (4) whether the entity was created by government. Oregon has adopted a six-part test that considers (1) the entity’s performance of governmental functions; (2) the presence of substantial government control over the entity’s day-to-day operations; (3) the authority of the entity to make and implement decisions; (4) the nature of the government’s financial involvement with the entity; (5) the existence of a government charter; and (6) the status of the entity’s employees. Florida uses a multi-part test:
(1) the level of public funding; (2) commingling of funds; (3) whether the activity is conducted on publicly owned property; (4) whether the services contracted for are an integral part of the public agency’s decision-making process; (5) whether the private entity is performing a governmental function; (6) the extent of the public agency’s involvement with, regulation of, or control over the private entity; (7) whether the private entity was created by the public agency; (8) whether the public agency has a substantial financial interest in the private entity; and (9) for whose benefit the private entity is functioning . . . (10) whether the private entity is merely providing services to the public agency or is standing in the shoes of the public agency.
North Dakota’s nine-part test is similar but identifies some issues differently:
Nine non-exclusive factors may be used to help determine whether a contractor is simply providing services to a public entity or is acting in place of or on behalf of the entity: 1) the level of public funding; 2) commingling of funds; 3) whether the activity was conducted on publicly owned property; 4) whether services contracted for are an integral part of the public agency’s chosen decision-making process; 5) whether the private entity is performing a governmental function or a function which the public agency otherwise would perform; 6) the extent of the public agency’s involvement with, regulation of, or control over the private entity; 7) whether the private entity was created by the public agency; 8) whether the public agency has a substantial financial interest in the private entity; and 9) for whose benefit the private entity is functioning.
An interesting analogy can be drawn between the analysis required for application of the open meeting law to a private entity and the analysis under the state action doctrine under which private actors with significant relations with government bodies are prohibited from infringing the constitutional rights of others.
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.”
Circumstances can change, and a determination that a particular private entity is subject to the open meeting law does not bind forever. Changes in key facts may result in a different determination in a future year.
State legislatures have typically not moved rapidly to amend the open meeting laws following court decisions finding that the existing laws did not extend to cover various private entities acting in partnership with public entities.
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§ 4.102 1. Private Entities Receiving Public Funds
A number of the States define the entities subject to their open meeting laws in part based on their receipt of public funds.
California defines the local bodies subject to its open meeting act to include a multimember body that governs a private corporation or entity that “[r]eceives funds from a local agency and the membership of whose governing body includes a member of the legislative body of the local agency appointed to that governing body as a full voting member by the legislative body of the local agency.” Moreover, if the member of the legislative body was a full voting member as of February 9, 1996, the multimember body remains subject to the open meeting requirements even if the member is changed to nonvoting status. The Kansas law applies to “all legislative and administrative bodies and agencies of the state and political and taxing subdivisions thereof, including boards, commissions, authorities, councils, committees, subcommittees and other subordinate groups thereof, receiving or expending and supported in whole or in part by public funds.” Oklahoma defines the entities subject to its act to include those “supported in whole or in part by public funds or entrusted with the expending of public funds, or administering public property,” a definition that includes some nongovernmental entities. The Arkansas statute provides that the term “public meetings” means and the open meeting law applies to all meetings, among others, of “all other . . . organizations in the State of Arkansas, except grand juries, supported wholly or in part by public funds or expending public funds.” Maine includes the “board of directors of a nonprofit, nonstock private corporation that provides statewide noncommercial public broadcasting services and any of its committees and subcommittees.” Virginia includes “other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds.”
Georgia includes in the entities subject to its open meeting law any “nonprofit organization to which there is a direct allocation of tax funds made by the governing authority of any agency as defined in this paragraph and which allocation constitutes more than 33 1/3 percent of the funds from all sources of such organization,” with the proviso that the law does not extend to hospitals, nursing homes, dispensers of pharmaceutical products or other persons providing medical or health services and receiving reimbursement from the State. Georgia excepts “a subagency or affiliate of such a nonprofit organization from or through which the allocation of tax funds is made.” Private industry councils created pursuant to the former Joint Training Partnership Act, were public bodies within the meaning of the Georgia open meeting law. Although their funding primarily derived from federal tax funds, the federal funds were allocated to the State which then allocated them to the various private industry councils, thereby creating a direct allocation of tax funds within the meaning of the open meeting law.
Indiana excepts certain providers of goods, services or other benefits from the definition of “public agency”:
(1) The provider receives public funds through an agreement with the state, a county, or a municipality that meets the following requirements:
(A) The agreement provides for the payment of fees to the entity in exchange for services, goods, or other benefits.
(B) The amount of fees received by the entity under the agreement is not based upon or does not involve a consideration of the tax revenues or receipts of the state, county, or municipality.
(C) The amount of the fees are negotiated by the entity and the state, county, or municipality.
(D) The state, county, or municipality is billed for fees by the entity for the services, goods, or other benefits actually provided by the entity.(2) The provider is not required by statute, rule, or regulation to be audited by the state board of accounts.
The North Dakota statute applies to “[o]rganizations or agencies supported in whole or in part by public funds, or expending public funds,” which is defined to mean:
an organization or agency in any form which has received public funds exceeding the fair market value of any goods or services given in exchange for the public funds, whether through grants, membership dues, fees, or any other payment. An exchange must be conclusively presumed to be for fair market value, and does not constitute support by public funds, when an organization or agency receives a benefit under any authorized economic development program.
South Carolina defines a public body to include “any organization. corporation. or agency supported in whole or in part by public funds or expending public funds,” a definition broad enough to encompass the Carolina Research and Development Foundation and the St. Johns Water Company. Receipt of loans from the federal government at below-market interest rates does not constitute support sufficient to make a private electric cooperative a public body.
Entities supported entirely by public funds are at least effectively public and fairly subjected to the requirements of open meeting laws. Entities supported “in part” by public funds are presumably also supported in part by private funds, perhaps largely supported by private funds, and may or may not be appropriately subjected to the full measure of open meeting act requirements.
The general rule is that the mere fact that the private entity receives public funds is not a sufficient basis for imposing open meeting act requirements. As one court explained:
an otherwise private organization is not “funded by or through state or local authority” merely because public moneys paid in exchange for goods provided or services rendered comprise a certain percentage of the organization’s revenue. Earned fees are simply not a grant, subsidy, or funding in any reasonable, common-sense construction of those synonymous words. Rather, it is clear that, in the FOIA, funded means something other than an exchange of services or goods for money, even if the source of money is a governmental entity.
Similarly, the fact that a state or local public body receives federal funds does not make it a federal agency for purposes of the federal open meeting law.
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§ 4.103 2. Private Entities Soliciting Donations to Public Institutions
In many States, private foundations and nonprofits solicit donations for the benefit of public institutions, often educational institutions. Nonprofit corporations or foundations operating for the benefit of a public university or college or, somewhat less frequently, the public schools generally are found to be public bodies with some frequency. Foundations that receive gifts and manage endowment funds for universities and similar bodies may be public bodies. Similarly, nonprofit corporations created by governing boards of state-supported institutions of higher education or a commission on higher education for the purpose of developing discoveries and technology resulting from science and technology research at state-supported institution of higher education.
In other States, nonprofits with these purposes and characteristics have been found not to be public bodies. The different result is more often due to the wording of the open meeting law than to differences in the nonprofit organizations themselves.
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§ 4.104 3. Private Entities with Public Officers
The presence of a city council member, county commissioner or similar official on the board of an entity alone is not sufficient ground to transform an otherwise private entity into a public entity subject to the open meeting act. For example, the Solano Economic Development Corporation is a private nonprofit corporation in California devoted to attracting new and diversified commerce and industry of Solano County. Nine of its 36 directors are appointed by but not necessarily from the city councils and board of supervisors in the area, and approximately 25 percent of its funding is contributed by public entities. The California open meeting act does not apply to this entity because the public officers who happen to serve on its board do not do so in their official capacity and no public functions have been delegated to the corporation. Similarly, Mississippi EdNet Institute, Inc., a nonprofit educational corporation was found not subject to the open meeting law even though the governor and attorney general served on its board ex officio and the other board members were appointed by the governor or governor and attorney general selected from persons in designated public employments.
A more difficult problem was posed by The Spirit of ‘76, Inc., a Kansas nonprofit corporation created by the executive director of a public body; the same individuals served on the board of directors for the corporation as on the board of the public body, and the two entities shared some staff members and the same meeting room. The Kansas Attorney General concluded that the corporation was not subject to the open meeting law but warned that,
when members of this corporation’s board are also members of the board for a public agency which is subject to the KOMA, the prearranged gatherings by a majority of a quorum of the public body are subject to the KOMA if the topic of discussion is the business or affairs of the public body. Because of the identical purposes served by both the private and public bodies, it is our opinion that many, if not all, of the discussions of the private body’s board will directly concern the business or affairs of the public body. Therefore, prearranged gatherings by a majority of a quorum of the body for the purpose of discussing such matters must be conducted pursuant to the KOMA.
The Alabama law applies to “all corporations and other instrumentalities whose governing boards are comprised of a majority of members who are appointed or elected by the state,” but Alabama excepts “[v]oluntary membership associations comprised of public employees, counties, municipalities, or their instrumentalities which have not been delegated any legislative or executive functions by the Legislature or Governor.” Similarly, Arizona’s law applies to “all corporations and other instrumentalities whose boards of directors are appointed or elected by the state or political subdivision.”
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§ 4.106 4. Private Entities Providing Health Care
Actually or nominally private entities that provide health care present sometimes difficult questions of application of the open meeting laws, both in whether the laws apply at all and, if so, how the laws apply. Some States except private entities or nonprofit entities providing health services or operating hospitals from the generally applicable open meeting law but impose substantially similar requirements in specialized statutes. Other States include specific provisions in their open meeting laws to address particular needs of hospitals and health care providers. Publicly owned hospitals and health care facilities are outside this analysis.
By the nature of their activities, many private entities that provide health care receive substantial funding from governmental sources. One major component of the funding may be provided in payment for goods and services so that the simple fact of funding cannot justify imposition of open meeting requirements. When the entities operate as the delegates of the local government to provide health care, performing delegated public obligations, they are fairly held subject to the open meeting law that would govern the public body if it performed the obligations directly.
Arkansas open meeting requirements apply to nonprofit medical centers that operate county hospitals and receive public funds because these nonprofits engage in activities of public concern and carry on work intertwined with that of government bodies.
As amended in 1993, the California open meeting law applies to certain hospital lessees that exercise any material authority of a public body delegated to the lessee by the public body. A private nonprofit public benefit corporation operating hospitals under a 30-year lease from a hospital district is not subject to the open meeting act. The fact that a county hospital has joined a consortium of private hospitals does not subject the consortium itself to the open meeting law.
In a series of court and attorney general opinions, Florida initially held private nonprofit corporations operating hospitals under lease from public hospital districts were subject to the open meeting law. The Florida Attorney General held in 1991 that the Indian River Memorial Hospital, Inc., operating a hospital under a lease from the Indian River County Hospital District providing that the corporation would comply with the Sunshine and Public Records Laws when engaged in the operation and management of the hospital was subject to the laws when engaged in operation and management of the hospital but was not subject to the laws when conducting business as a private organization unrelated to the lease and not acting on behalf of, or at the direction of, the hospital district. The Attorney General considered the same corporation again in 1998, ruling that intervening court decisions had broadened the test to focus “on whether the private entity is merely providing services to the public agency or is standing in the shoes of the public agency,” quoting an appellate decision:
If one merely undertakes to provide material–such as police cars, fire trucks, or computers–or agrees to provide services–such as legal services, accounting services, or other professional services–for the public body to use in performing its obligations, then there is little likelihood that such contractor’s business operation or business records will come under the open meetings or public records requirements. On the other hand, if one contracts to relieve a public body from the operation of a public obligation–such as operating a jail or providing fire protection–and uses the same facilities or equipment acquired by public funds previously used by the public body then the privatization of such venture to the extent that it can avoid public scrutiny would appear to be extremely difficult, regardless of the legal skills lawyers applied to the task.
The Attorney General also held the Sunshine Law applied to Board of Directors meetings of the Big Sun Healthcare Systems, Inc., a not-for-profit corporation that had entered into an agreement with the Marion County Hospital District to manage and operate the district hospital facilities, in part because seven of the fifteen members of the corporation’s board were members of the district board and selected the remaining eight members and the corporation’s articles of incorporation required compliance with the law. In 1998, Florida enacted a special statute to address confidentiality of records and meetings of corporations that lease public hospitals or other public health care facilities, exempting these private corporations if they meet at least three of the five following criteria:
(1) The public lessor that owns the public hospital or other public health care facility was not the incorporator of the private corporation that leases the public hospital or other health care facility.
(2) The public lessor and the private lessee do not commingle any of their funds in any account maintained by either of them, other than the payment of the rent and administrative fees or the transfer of funds pursuant to subsection (2).
(3) Except as otherwise provided by law, the private lessee is not allowed to participate, except as a member of the public, in the decisionmaking process of the public lessor.
(4) The lease agreement does not expressly require the lessee to comply with the requirements of §§ 119.07(1) and 286.011.
(5) The public lessor is not entitled to receive any revenues from the lessee, except for rental or administrative fees due under the lease, and the lessor is not responsible for the debts or other obligations of the lessee.
This statute has been held constitutional.
Georgia excepts from the private entities subject to its open meeting law “hospitals, nursing homes, dispensers of pharmaceutical products, or any other type of organization, person, or firm furnishing medical or health services to a citizen for which they receive reimbursement from the state whether directly or indirectly.” Nevertheless, the Georgia Court of Appeals has held that nonprofit hospital corporations that have contractually agreed to operate public hospital authority assets for the public good, obligating themselves to be the vehicle through which the public hospital authority carried out its official responsibilities, are properly held subject to the open meeting law.
A committee of health providers assisting the Kansas department of social and rehabilitation services in implementing a drug utilization review program for patients receiving medical assistance under Medicaid is subject to the Kansas open meetings act. The committee was appointed pursuant to a Kansas statute and receives public funds through the department. The contract between the department and the Kansas Pharmacy Foundation, a nonprofit organization under contract with the department to administer the Medicaid program, does not insulate the committee from the applicability of the law because the department maintained ultimate authority to control the program. The Kansas statute also provides that the “Sunflower Foundation: Health Care for Kansas, established pursuant to the settlement agreement entered into by the attorney general in the action filed by Blue Cross and Blue Shield of Kansas, Inc., . . . case no. 97CV608, shall be and is hereby deemed to be a public body and shall be subject to the open meetings law.”
Maryland excepts the governing body of a hospital as defined in section 19-301 of the Health-General Article, namely, an institution that has a medical staff of at least five physicians, maintains facilities for two or more unrelated persons, and admits patients for overnight care.
The board of Hennepin Healthcare System, Inc., in Minnesota is subject to the open meeting law but may close all or part of a board meeting to discuss competitive data or consider strategic, business, planning, or operational issues that could cause current or future competitive disadvantage to the corporation or the entities, facilities, and operations for which it is responsible if disclosed. Meetings of committees of the board of directors may, at the discretion of the board, be closed to the public, and the open meeting law “does not apply to a subsidiary, joint venture, association, or partnership of the corporation unless such entity has been organized to assume management of the corporation.” The corporation is required to hold the following open meetings: “(1) an annual public meeting to report on the affairs of the corporation and the goals for the future, including a report on the health services plan specified [by law]; (2) meetings of the corporation held during the development and implementation phase of the health services plan for the purpose of informing the public and receiving public comment; and (3) that portion of a meeting at which the board of the corporation approves the annual budget prior to submission to the county board for approval.”
Mississippi excepts “[p]ublic and private hospital staffs, public and private hospital boards and committees thereof” from the provisions of its open meeting law.
North Carolina applies its open meeting law to the governing boards of public hospitals and to the governing boards of nonprofit corporations to which a hospital facility has been sold and their parents and subsidiaries.
Peer review proceedings at health care facilities typically either are excepted from the definition of the meetings subject to open meeting requirements or are authorized to be conducted in executive sessions.
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§ 4.108 5. Private Entities Providing Utility Services
A few States have applied their open meeting laws to public utilities that are owned, controlled or operated by public bodies.
Georgia imposes open meeting requirements on public utilities in connection with their use of eminent domain powers. Texas applies its law to nonprofit corporations organized under a particular law that provide a water supply or wastewater service or both and exempt from ad valorem taxation under Texas law. Washington provides that its open meeting law applies to “[a]ny policy group whose membership includes representatives of publicly owned utilities formed by or pursuant to the laws of this state when meeting together as or on behalf of participants who have contracted for the output of generating plants being planned or built by an operating agency.”
A cooperative electric corporation that receives no public funds and is not involved in direct governmental functions is not subject to the open meeting act under some statutes. Minnesota provides that regular and special meetings of electric cooperative boards “must be open to all members of the cooperative” with reasonable prior notice but boards may close a meeting or a portion of a meeting based on a written determination that a closed meeting is necessary to discuss (1) personnel matters, compensation issues, labor negotiations, billing and credit information, or an issue that may tend to prejudice an individual’s reputation; (2) threatened or pending litigation, issues subject to an attorney-client privilege, or other legal information, the knowledge of which may adversely affect the cooperative’s legal position; or (3) information that, if discussed in open meeting, would impair the cooperative’s competitive or financial position, reveal proprietary information or interfere with a business opportunity for substantial financial improvement of the cooperative that, if generally known, would likely jeopardize the opportunity itself.
In other circumstances, private utilities companies are generally not deemed to be public bodies under open meeting laws.
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§ 4.110 6. Private Entities Under Contract with Public Bodies
When the private entity is under contract with a public entity to do the work of the public entity, the open meeting act requirements may be applied to that extent or the open meeting act requirements may not apply, depending on the particular statute and the facts of the particular case. Contracts between private entities and public bodies and the payment of public funds to the private entities do not transform the private entities into public bodies for purposes of the open meeting law when the contracts are arm’s length transactions for goods and services or when the funds are invested in the private entity. As one court observed, there is a major distinction between contracting to provide material or services to the public body or in place of the public body; the former will rarely subject the corporation to open meeting and public records requirements while the latter frequently will do so.
Wholly aside from the provisions of the open meeting law, the contract between a public body and a private entity may itself require that the private entity comply with the provisions of the open meeting law. In such a case, the contract forms the source of the obligation to comply with the open meeting law. Enforcement of the open meeting requirement in these cases may be limited to the contracting parties or may be available to nonparties on a third party beneficiary theory, depending on the law of the particular State. Interstate compacts may require compliance with open meeting laws according to the terms of the compact.
Missouri includes in its definition of the public governmental bodies subject to the open meeting law quasi-public governmental bodies that are defined as persons, corporations or partnerships organized or authorized to do business in Missouri or unincorporated associations that perform a public function or have as their “primary purpose to enter into contracts with public governmental bodies, or to engage primarily in activities carried out pursuant to an agreement or agreements with public governmental bodies.” Thus, an area agency on aging that is a nonprofit corporation is a quasi-public governmental body subject to the law.
An entity that is not subject to a state’s open meeting law in the first instance may become subject to the law as a matter of contract. Public entities entering into contracts with private entities may require, as a condition to the contract, that the private entity comply with the open meeting requirements as though it were bound to them as a matter of law.
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§ 4.111 7. Private Entities Providing Services to Public Bodies
In some circumstances, private entities may perform some services for the public body in their geographic area. One example arises if an architectural review committee for a homeowners association performs a prerequisite step in the review process for obtaining a building permit or other government entitlement pursuant to county ordinance. In this circumstance, the committee is acting under delegated government power and performing services for the public body and must, in doing so, comply with open meeting requirements if the open meeting statute is broad enough to encompass the situation. When the actual public function is performed by the private entity, then the open meeting requirements typically follow.
As one example of a nonprofit found subject to the open meeting law, the Florida Attorney General noted that a community land trust,
the Delray Beach Community Land Trust, Inc., has contracted with the city to accomplish the city’s responsibilities to provide affordable housing for certain households. The trust also reviews and screens applicant files for those who wish to participate in the city’s affordable housing program and so acts as an integral part of the city’s decision-making process in determining applicant eligibility [although] the City maintains its authority to approve or deny individual applicant files for any applicant requesting subsidy assistance from the city. The Delray Beach Community Land Trust, Inc., conducts its activities from city office space for which it pays nothing and the city provides the trust with an office supplies appropriation. Substantial funding of the activities of the trust are received through the City of Delray Beach and the local community redevelopment agency.
In West Virginia, state institutions of higher education are authorized to enter into contractual relationships with nonprofit corporations organized solely to support research at that institution and to provide evaluation, development, patenting, management and marketing services for inventions of its faculty, staff and students, subject to the requirement that the meetings of the directors of the corporation comply with the open meeting law. Similarly, the Colorado law applies to a nonprofit corporation incorporated by a governing board of a state-supported institution of higher education or Colorado Commission on Higher Education to develop discoveries and technology resulting from science and technology research at the state-supported institution.
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§ 4.112 8. Private Entities Composed of Public Bodies
Public bodies and their public officers and employees may join together to form private organizations that are typically not subject to the open meeting laws. Examples of national organizations include the International Municipal Lawyers Association, the former National Institute of Municipal Law Officers, the National League of Cities and the Council of State Governments.
As a general rule, regional organizations composed of public bodies are similarly not subject to the open meeting laws of any of the States in which they operate or from which they draw their members. Such organizations may also be formed on a statewide basis, such as the Florida Association of Counties and the Florida League of Cities, and again are not normally subject to the open meeting requirements.
Such organizations as the National Collegiate Athletic Association and regional athletic associations of public and private schools are often outside the scope of the open meeting laws. As these bodies include both public and private bodies as members, they can often mount stronger arguments against the application of open meeting laws than can private organizations composed exclusively of public bodies.
Alabama excepts “[v]oluntary membership associations comprised of public employees, counties, municipalities, or their instrumentalities which have not been delegated any legislative or executive functions by the Legislature or Governor.” Maine extends its open meeting law to the transaction of any functions affecting any or all citizens of the State by the “full membership meetings of any association, the membership of which is composed exclusively of counties, municipalities, school administrative units or other political or administrative subdivisions; of boards, commissions, agencies or authorities of any such subdivisions; or of any combination of any of these entities.” Montana applies its open meeting law to meetings of associations that are composed of public or governmental bodies that regulate the rights, duties or privileges of any individual.
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§ 4.114 9. Homeowner Associations
Homeowner associations present open meeting issues because they typically do not fall within the definition of a public body in the state open meeting law, yet they operate as mini-governments in the subdivision or development over which they have jurisdiction. States could have elected to address homeowner associations within their open meeting laws; Florida affirmatively did not do so. Other States have adopted specific statutes to impose open meeting requirements on homeowner associations with terms tailored to the special nature of these associations. Finally, States may subject homeowner associations to open meeting laws when the associations are acting on behalf of or in place of a public entity, but not otherwise.
In Arizona, homeowner associations are required to open their board and association meetings to all the members of the association, excepting the portions of the meetings relating to legal advice, pending or contemplated litigation, employment-related matters, and “[p]ersonal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association.” Meetings must be held in Arizona, and the association must meet at least once a year. At least 10 and no more than 50 days notice of meetings must be provided to all members unless the articles of incorporation and bylaws provide otherwise. Similar provisions govern condominium and timeshare associations. The California Common Interest Development Open Meeting Act entitles any member of an association to attend meetings of the board of directors, except for executive sessions to consider litigation, matters relating to the formation of contracts with third parties, member discipline, personnel matters, or to meet with a member regarding the member’s payment of assessments or a fine, penalty, or other form of discipline. Minutes of meetings must be available to members within 30 days. Members are entitled to notice of meetings except in emergencies, and are entitled to speak at meetings for a reasonable time set by the board.
Colorado imposes open meeting requirements on unit owners’ associations in common interest communities. Unit owners’ meetings must be held at least once a year, with 10 to 50 days notice by mail, electronic mail and posting, stating “the time and place of the meeting and the items on the agenda, including the general nature of any proposed amendment to the declaration or bylaws, any budget changes, and any proposal to remove an officer or member of the executive board.” Regular and special meetings of the association and the association’s board of directors, executive board and its any committees must be open to attendance by all members of the association or their representatives, with agendas reasonably available for examination. The executive board and its committees may hold executive sessions to address
(a) Matters pertaining to employees of the association or the managing agent’s contract or involving the employment, promotion, discipline, or dismissal of an officer, agent, or employee of the association;
(b) Consultation with legal counsel concerning disputes that are the subject of pending or imminent court proceedings or matters that are privileged or confidential between attorney and client;
(c) Investigative proceedings concerning possible or actual criminal misconduct;
(d) Matters subject to specific constitutional, statutory, or judicially imposed requirements protecting particular proceedings or matters from public disclosure;
(e) Any matter the disclosure of which would constitute an unwarranted invasion of individual privacy;
(f) Review of or discussion relating to any written or oral communication from legal counsel.
Florida requires that all meetings of the board of directors of a homeowner association be open to all members of the association, “except for meetings between the board and its attorney with respect to proposed or pending litigation where the contents of the discussion would otherwise be governed by the attorney-client privilege” and except for meetings with the attorney with respect to personnel matters. The same open meeting requirement applies to “meetings of any committee or other similar body when a final decision will be made regarding the expenditure of association funds and to meetings of any body vested with the power to approve or disapprove architectural decisions with respect to a specific parcel of residential property owned by a member of the community.” Members are entitled to speak for at least three minutes on any matter placed on the agenda by petition of the voting interests. The association may expand members’ right to speak and govern the frequency, duration, and other manner of member statements.
Florida requires the association by-laws to prescribe the manner of notice and provides default notice provisions to govern in the absence of a by-laws provision. Assessments may not be levied without specific notice. Proxy voting and secret ballots are not permitted except for election of officers. Minutes must be taken recording the votes and abstentions of the board members and must be retained for seven years. Directors may be recalled by a majority of the voting interests.
Similar Florida provisions govern a condominium board of administration, cooperative board of administration, and a mobile home park homeowners’ association board of directors.
In Nevada, a public body also includes a “limited-purpose association that is created for a rural agricultural residential common-interest community as defined in section 116.1201(6).
The Oregon law requires all board meetings to be open to unit owners except for consultation with legal counsel and meetings to consider personnel matters, negotiation of contracts with third parties and collection of unpaid assessments. Voting must occur in open session, and the purpose of any closed session must be disclosed; a meeting does not occur if the board convenes to participate in litigation, mediation or arbitration proceedings.
Texas applies its open meeting law to certain property owners’ associations if
(A) membership in the property owners’ association is mandatory for owners or for a defined class of owners of private real property in a defined geographic area in a county with a population of 2.8 million or more or in a county adjacent to a county with a population of 2.8 million or more;
(B) the property owners’ association has the power to make mandatory special assessments for capital improvements or mandatory regular assessments; and
(C) the amount of the mandatory special or regular assessments is or has ever been based in whole or in part on the value at which the state or a local governmental body assesses the property for purposes of ad valorem taxation under Section 20, Article VIII, Texas Constitution;
or if the association
(A) provides maintenance, preservation, and architectural control of residential and commercial property within a defined geographic area in a county with a population of 2.8 million or more or in a county adjacent to a county with a population of 2.8 million or more; and
(B) is a corporation that:(i) is governed by a board of trustees who may employ a general manager to execute the association’s bylaws and administer the business of the corporation;
(ii) does not require membership in the corporation by the owners of the property within the defined area; and
(iii) was incorporated before January 1, 2006.
In addition, condominiums in Texas must hold annual meetings and all board meetings must be open to all unit owners, “subject to the right of the board to adjourn a meeting of the board and reconvene in closed executive session to consider actions involving personnel, pending litigation, contract negotiations, enforcement actions, matters involving the invasion of privacy of individual unit owners, or matters that are to remain confidential by request of the affected parties and agreement of the board.”
In Washington, homeowners associations must meet at least annually, and all meetings of the board of directors must be open for observation by all owners of record and their authorized agents except to consider personnel matters, consult with legal counsel or consider communications with legal counsel, discuss likely or pending litigation, matters involving possible violations of the association’s governing documents, and matters involving possible liability of an owner to the association. Notice of meetings must be given as required, and minutes must be taken and be available to all owners. No action may occur in closed session, and the minutes must state the basis for any closed session.
The attorney general or county counsel do not routinely enforce open meeting requirements for homeowners associations as such as would be the case for violations of the open meeting law.
A separate analysis arises when the homeowners association is potentially subject to open meeting requirements governing public entities because the association has a relationship with or is standing in the shoes of the public entity. In these circumstances, the general rules under which any private entity may be subject to public open meeting requirements will apply. For example, a homeowners association that contracts with the county to perform governmental functions such as road maintenance and fire rescue services may be held to satisfy the open meeting requirements that would otherwise apply to the county.
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§ 4.120 10. Other Private Entities
California defines the local agencies subject to its open meeting act to include a multimember body governing a private corporation, limited liability company or entity that is created by the elected legislative body to exercise authority that may lawfully be delegated by the elected legislative body to the private entity. The Oakland-Alameda County Coliseum, Inc., which operated the coliseum where the Raiders played for many years, was found under prior California law to be subject to the open meeting law on the basis of the delegation of the powers of the City of Oakland and the County of Alameda to operate the coliseum complex.
A nonprofit community development corporation in Nevada formed at the direction of the Eureka County Commission and incorporated by two of the three commissioners, with directors selected by the Commission, designed to further economic development is subject to the Nevada law. Ohio excepts the nonprofit JobsOhio.
The Florida Attorney General drew the following distinction between a community advisory committee consisting of fifteen zone captains appointed by the city council to represent various zones throughout the city and the citizens who might meet with committee members:
A community advisory committee that is responsible for making recommendations to the city commission on matters of concern to the residents of the city and upon which the city commission may foreseeably act must comply with the requirements of the Government in the Sunshine Law. However, citizens meeting with a street or block representative to express common concerns and develop issues to be presented for consideration to the community advisory committee are not subject to the Sunshine Law.
In another instance, the Attorney General found that the Lee County Fire Commissioner’s Forum was not by itself subject to the open meeting law, even though it was a nonprofit created by and with membership limited to the fire control and rescue districts in Lee County. It held monthly informal meetings attended by fire chiefs and fire commissioners. If more than one board member of a specific district attended and discussed issues that might foreseeably come before that district for official action, however, then the meeting would be subject to the open meeting law.
Indiana defines the term “public agency” to include some entities that could be either public or private, namely
• an entity subject to budget review by the department of local government finance or the governing body of a county, city, town, township, or school corporation;
• an entity subject to audit by the state board of accounts that is required by statute, rule, or regulation, and
• “[a]ny building corporation of a political subdivision of the state of Indiana that issues bonds for the purpose of constructing public facilities.”
Iowa includes within its definition of the governmental bodies subject to the open meeting law a nonprofit corporation licensed to conduct gambling games under state law, for all purposes, and a nonprofit corporation whose facilities or indebtedness is supported in whole or in part with property tax revenue and which is licensed to conduct pari-mutuel wagering, or its successor, for purposes of meetings concerning pari-mutuel racing and wagering.
In Maryland, the term public body includes
any multimember board, commission, or committee appointed by the Governor or the chief executive authority of a political subdivision of the State, or appointed by an official who is subject to the policy direction of the Governor or chief executive authority of the political subdivision, if the entity includes in its membership at least 2 individuals not employed by the State or the political subdivision.
After extended analysis of the facts, the Court of Appeals of Maryland held that the City of Baltimore Development Corporation was subject to the open meeting law because the nonprofit corporation “is charged by the ordinance, the contracts with the City, and by its Charter to coordinate public functions such as the preparation and adoption of urban renewal plans, and is thus a part of the apparatus used by the City in the exercise of its urban renewal powers.”
New Hampshire defines “public body” to include: “Any corporation that has as its sole member the state of New Hampshire, any county, town, municipal corporation, school district, school administrative unit, village district, or other political subdivision, and that is determined by the Internal Revenue Service to be a tax exempt organization pursuant to section 501(c)(3) of the Internal Revenue Code.”
A convention bureau is a public body in Missouri but not in Texas; the Texas definition of public bodies looks less to function than to characteristics of creation and category. In Illinois, tourism boards and convention or civic center boards in counties with populations over 250,000 but less than 300,000 contiguous to the Mississippi River are public bodies subject to the open meeting law.The board of the Hawaii Tourism Authority is subject to the law. In Maryland, the private Baltimore Area Convention and Visitors Association has been found outside the open meeting law, in part based on the manner of its private formation. The Visitors’ Bureau in Rhode Island is not a public body for open meeting purposes because the enabling statute provides that the Bureau has a distinct legal existence from the State and does not constitute a department of state government. West Virginia has also determined that a convention and visiters bureau is not subject to the law.
Tennessee includes in its definition of the governing bodies subject to the open meeting law the board of directors of nonprofit corporations that contract with a state agency to receive community grant funds in consideration for rendering specific services to the public that constitute at least 30 percent of the total annual income of the organization. Tennessee also includes the board of directors of not-for-profit corporations authorized by law to act for the benefit or on behalf of Tennessee cities, counties, towns and local governments, except for metropolitan counties with a population in excess of 400,000, and the board of directors of a nonprofit corporation that provides heat, steam or incineration of refuse to a metropolitan form of government with a population over 500,000. The statutory identification of these corporations does not prevent application of the law to additional types of corporations whose origin and authority can be traced to legislative action and whose members have authority to make decisions or recommendations on policy or administration affecting the conduct of public business. Finally, Tennessee includes the board of directors of any association or nonprofit corporation formed under Tennessee law for the benefit of local government officials or local governments or as a municipal bond pool that receives at least 30 percent of its annual income from local government officials or local governments, and was authorized as of January 1, 1998 to obtain coverage for its employees under the Tennessee consolidated retirement system. Such an association or corporation is not required to disclose trade secrets or proprietary information.
The Chicago Board Options Exchange is a Delaware nonstock corporation, not a government authority and not subject to the Administrative Procedure Act. A humane society has been found outside the open meeting laws in Connecticut and West Virginia. In Virginia, however, the Freedom of Information Advisory Council coupled the 63 percent funding the Peninsula SPCA received from government entities with the fact that the SPCA acted as the sole animal-control entity of the four localities and concluded that the SPCA is a public body for purposes of FOIA to the extent that the meetings relate to the discussion of public business.
Volunteer fire departments have presented difficult questions in a number of States. Although partaking of some attributes of public bodies, and often receiving public funds, so that some open meeting laws apply to them, sometimes only for certain types of meetings, these entities are typically private organizations outside the open meeting laws. They may exhibit characteristics of fraternal organizations. The financial and other burdens of complying with open meeting and other statutes may factor into the decision of a small town to use a volunteer fire department.
A variety of cases have considered the application of open meeting laws to chambers of commerce, either acting as such or when holding meetings to which members of public bodies have been invited. The determination may depend on whether a quorum or committee of the public body attends or whether its members discuss public business among themselves.