Nebraska high court finds no violation of open meetings law

The Nebraska Supreme Court last Friday unanimously upheld a lower court ruling that city officials did not violate state open meetings laws in connection with a local land annexation initiative.

Nebraska residents Curt and Susan Schauer had filed a lawsuit alleging, among other things, that Ord city council members violated state open meetings laws when they failed to provide adequate notice of meetings and informally met to discuss official business.

The case centered around the proposed annexation and redevelopment of a vacant parcel of agricultural land approximately five miles outside city limits that abuts the Schauers’ property. The land in question was being considered as the site of an ethanol production facility, which would have been roughly 1/8 of a mile from the Schauers’ home.

The 6-member city council, along with other governmental boards engaged in the annexation process, held a series of meetings and votes in 2005 that ultimately led to the approval of the annexation and the proposed development plans. During the course of the approval process, the Valley County Economic Development Board invited city council members, the mayor of Ord, the Schauers and other individuals to a dinner and tour of an existing ethanol facility.

The mayor and three city council members were among the roughly 40 people who attended. The Schauers did not go on the tour because their former neighbors — the ones who sold the property at issue for development — were in attendance. The mayor and one council member were part of one plant tour group, while the remaining two council members were part of the second tour group. After the tour, the mayor and council members went to eat at the same restaurant but testified that they did not eat together nor did they discuss any official business. A few days later, the city council voted to move the annexation process forward.

The Schauers claimed that since the council failed to provide adequate notice of the facility tour and so-called "meetings" that took place at the restaurant, the subsequent approval of the development plan should be voided. They also alleged additional public notice defects at different points during the approval process.

Addressing the Schauers’ claims that the ethanol plant visit and dinner were meetings under the law, the court noted that if a subgroup of council members gather, it can constitute an official meeting when a quorum of members are present, but found that no quorum existed at the plant or at the restaurant. According to the court, council members at the plant “were merely acquiring information — information that was amply commented upon by the public in subsequent public meetings.” The “Open Meetings Act does not require policymakers to remain ignorant of the issues they must decide until the moment the public is invited to comment on a proposed policy,” the court wrote.

As to the charge that the city officials were purposely split into two groups to avoid a quorum, the court responded that there was “simply no evidence that, through the tour, the city council was attempting to reach a consensus and form public policy in secret.”

The court found that the dinner also did not constitute a meeting under the law. The court rejected the Schauers’ argument that because one city council member had abstained from certain annexation votes in the past due to professional conflicts, the three-member restaurant meeting equaled a quorum of members. The court also noted that no official business was discussed over dinner, so even if a quorum were present no meetings would have occurred, nor could they be inferred. “There is no meeting of a public body based upon the unspoken thoughts of council members who happen to be sitting in the same room,” the court wrote.

The court also rejected the Schauers’ challenges that the meeting notices were not sufficiently detailed as to what land was being impacted, no formal notice procedures were ever established by the city and that rural citizens did not have reasonable access to notice postings. The court decided that the city had abided by long-standing notice customs that were reasonably calculated to alert all interested parties of annexation project details.