2. Nature of business subject to the law

Numbers alone do not completely determine whether a gathering of public officials is a "meeting." Every member of the same public body might attend the same hockey tournament or sled dog race or picnic, without there being a meeting. It is the discussion of the public business of the body that makes a gathering of its members a meeting. The statute defines a "meeting" as a gathering of the requisite number of members of a governmental body when "a matter upon which the governmental body is empowered to act is considered by the members collectively, and the governmental body has the authority to establish policies or make decisions for a public entity." AS 44.62.310(h)(2)(a).

Authority of Group Conducting Meeting. In defining when a gathering constitutes a meeting, the Alaska Open Meetings Act distinguishes between meetings of governmental bodies generally, and those that are purely advisory. When the governmental body has the authority to establish policies or make decisions for a public entity, it is a "meeting" whenever the requisite number of that body are present and consider a matter upon which the body is empowered to act. It does not matter whether the meeting was regularly scheduled, informally arranged by all of the members shortly in advance of the meeting, or spontaneous and serendipitous. The question is whether public business of the body is considered by the members collectively. (The reference to considering the matter "collectively" was added at the urging of certain legislators who were concerned that an individual or group could subvert governmental action by, e.g., approaching members of the body individually, and unbeknownst to one another, while all were gathered at a social function and not otherwise considering any business.) On the other hand, when members of a purely advisory group meet — a governmental body that has only the authority to advise or make recommendations for a public entity, but has no authority to establish policies or make decisions for the public entity — that gathering constitutes a meeting only when it is "prearranged for the purpose of considering a matter upon which the governmental body is empowered to act." So, when more than three or a majority of members of an advisory group plan to get together, and then do so, it is a meeting subject to the other provisions of the OMA. However, when they simply run into one another by chance, or for some reason unrelated to the business of the body they serve on, but end up discussing that business, their failure to have given reasonable public notice in advance of this gathering, or otherwise to comply with the requirements of the OMA, will not be the basis of a challenge to any action subsequently resulting from the process of which their meeting is a part, since it is not a "meeting" under the act.

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Both Acts apply to any congregation of the majority of the members to hear, discuss, deliberate, or take action on any item that is within the subject matter jurisdiction of the body. Cal. Gov’t Code §§ 11122.5(a) (Bagley Keene Act), 54952.2(a) (Brown Act).

(a). Public Business. Meetings subject to the Sunshine Law are "any kind of gathering, convened to discuss public business, in person, by telephone, electronically, or by other means of communication." Colo. Rev. Stat. § 24-6-402(1)(b). This general rule of application, however, is subject to several specific exceptions. Board of Cty. Comm'rs, Costilla Cty. v. Costilla Cty. Conservancy Dist., 88 P.3d 1188 (Colo. 2004) (for a meeting to be subject to Open Meetings Law, there must be a demonstrated link between the meeting and the policy-making powers of the public body, for example enactment of a rule, regulation, or ordinance, or a discussion of a pending measure or action which is subsequently "rubber stamped" by the public body. Mere discussion of matters of public importance does not trigger the Open Meetings Law.)

(b). Public Employment. Meetings of a state public body to consider appointment or employment of public officials or employees or the dismissal, discipline, promotion, demotion, compensation of, or charges or complaints against public officials or employees are open unless the public applicant, official, or employee requests an executive session. Colo. Rev. Stat. § 24-6-402(3)(b). However, meetings of local public bodies to consider similar matters with respect to public employees (not public officials) are closed unless the subject of the executive session requests that it be conducted as an open meeting. Colo. Rev. Stat. § 24-6-402(4)(f).

(c). Exemptions.

1. Social gatherings. The Sunshine Law does not apply to any chance meeting or social gathering at which discussion of public business is not the central purpose. Colo. Rev. Stat. § 24-6-402(2)(e).
2. Executive sessions. A state public body otherwise subject to the Sunshine Law may, after an announcement to the public of the topic for discussion in the executive session and upon a two-thirds vote of its entire membership, and a local government upon a two-thirds vote of the quorum present, hold an executive session at regular or special meetings. Colo. Rev. Stat. § 24-6-402(3)(a) (state); Colo. Rev. Stat. § 24-6-402(4) (local). Discussion in an executive session of a state or local public body shall be recorded in the same manner and media that the body uses to record minutes of open meetings. An electronic recording satisfies the requirement. A public body going into executive session shall identify the particular matter to be discussed therein in as much detail as possible. Colo. Rev. Stat. § 24-6-402(2)(d.5)(I)(A). The public body may meet in executive session only to consider the following matters:

(1) Purchase or sale of public property, if premature disclosure of information would give an unfair advantage to any person whose private interest is adverse to the public interest. Colo. Rev. Stat. § 24-6-402(3)(a)(I) (state); Colo. Rev. Stat. § 24-6-402(4)(a) (local).

However, no member of a state public body may request an executive session as a subterfuge for providing covert information to prospective buyers or sellers, and no member of a local public body may request an executive session for the purpose of concealing that the member has a personal interest in the transaction.

(2) Conferences between a state public body and its attorney to consider legal disputes involving the public body, if the disputes are the subject of pending or imminent court action, Colo. Rev. Stat. § 24-6-402(3)(a)(II), and conferences between a local public body and its attorney for the purpose of receiving specific legal advice on specific legal questions. Colo. Rev. Stat. § 24-6-402(4)(b). Cf. Denver Post Corp. v. Univ. of Colo., 739 P.2d 874 (Colo. App. 1987) (attorney-client privileged communications exempt from Open Records Act). The mere presence or participation of an attorney at an executive session does not satisfy the requirements. However, when an attorney representing a public body determines that a portion of an executive session constitutes a privileged attorney-client communication, no record need be kept thereof and any written minutes shall contain a signed statement by the attorney attesting to the privilege and a signed statement by the chair of the session. Colo. Rev. Stat. § 24-72-204(5.5)(II)(B).

(3) Matters required to be kept confidential by federal law or rules or state statute. Colo. Rev. Stat. §§ 24-6-402(3)(a)(III) (state) and 24-6-402(4)(c) (local). The local public body shall announce the specific citation of the statutes or rules that serve as the basis for such confidentiality before holding the executive session. Colo. Rev. Stat. § 24-6-402(4)(c). See, e.g., Gillies v. Schmidt, 38 Colo. App. 233, 556 P.2d 82 (1976) (public committee subject to local government open meetings law on child abuse may hold executive session not subject to Open Meetings Act to consider child abuse reports and related records where statute required such records to be kept confidential). However, non-confidential matters may not be discussed in closed executive sessions. Gillies v. Schmidt, supra.

(4) Specialized details of security arrangements and investigations regarding defenses against domestic and foreign terrorism which, if disclosed, might reveal information which could be used for violating the law. Colo. Rev. Stat. §§ 24-6-402(3)(a)(IV) (state) and 24-6-402(4)(d) (local).

(5) Positions and strategies on matters subject to negotiations with employees or employee organizations, i.e., matters pertaining to collective bargaining. Colo. Rev. Stat. §§ 24-6-402(3)(a)(V) (state) and 24-6-402(4)(e) (local).

(6) Meetings of a state public body to consider appointment or employment of public officials or employees or the dismissal, discipline, promotion, demotion, compensation of, or charges or complaints against public officials or employees are open unless the public applicant, official, or employee requests an executive session. Colo. Rev. Stat. § 24-6-402(3)(b). However, at least one court has held that a meeting to discuss the employment status of and possible disciplinary options against the director of a county building and land use department did not need to be open because it constituted "day to day" supervision of an employee within the "supervision of employees" exception. Arkansas Valley Publ’g Co. v. Lake Cty. Bd. of Cty. Comm’rs, 369 P.3d 725, 726-28 (Colo. App. 2015) (involving allegations of criminal activity by director during work hours). Meetings of local public bodies to consider similar matters with respect to public employees (not public officials) are closed unless the subject of the executive session requests that it be conducted as an open meeting. Colo. Rev. Stat. § 24-6-402(4)(f).

iii. Local public bodies may meet in executive session, in addition to the matters listed above to consider the following matters:

(1) Documents protected by the mandatory nondisclosure provisions of the Open Records Act. Colo. Rev. Stat. § 24-6-402(4)(g).

(2) Discussion of individual students where public disclosure would adversely affect the persons involved. Colo. Rev. Stat. § 24-6-402(4)(h).

1. Governing Boards of Institutions of Higher Education (including Board of Regents of University of Colorado). In addition to the matters listed above which may be considered in a closed executive session, the governing board of any institution of higher education, upon its own affirmative vote, may meet in executive session to consider the following matters:

(1) Gifts. Governing boards of state universities may also hold executive sessions to consider acquisition of property as a gift, if requested by the donor. Colo. Rev. Stat. § 24-6-402(3)(a)(I).

(2) Legal Advice. Conferences with an attorney concerning specific claims or grievances or for purposes of receiving legal advice on specific legal questions. However, the mere presence of an attorney at an executive session does not satisfy this requirement. Colo. Rev. Stat. § 24-6-402(3)(a)(II). See Associated Students v. Regents of Univ. of Colo., 189 Colo. 482, 543 P.2d 59 (1975) (Open Meetings Law does not repeal attorney-client privilege).

(3) Patient Care Programs. Matters and reports concerning initiation, modification, or cessation of patient care programs at University of Colorado Hospital, if premature disclosure of the information would give anyone an unfair advantage. Colo. Rev. Stat. § 24-6-402(3)(a)(VI).

(4) Honorary awards. Nominations for the awarding of honorary degrees, medals and other institutional awards, as well as proposals for the naming of a building after a person. Colo. Rev. Stat. § 24-6-402(3)(a)(VIII).

(5) Student Discipline. Executive sessions may be held to review administrative actions regarding investigations and reports of charges and complaints against students, unless the student has specifically requested or consented to disclosure of such matters. Colo. Rev. Stat. § 24-6-402(3)(b).

1. State Parole Board. The state parole board may, by two-thirds vote of the membership present, meet in executive session to consider matters connected with any parole proceedings under its jurisdiction. Colo. Rev. Stat. § 24-6-402(3)(c). However, no final parole decisions may be made by the board while in executive session.
2. Nonprofit corporations. Nonprofit companies incorporated pursuant to section 23-5-121(2), C.R.S. may hold executive sessions to review matters concerning trade secrets, privileged information, and confidential commercial, financial, geological, or geophysical data. Colo. Rev. Stat. § 24-6-402(3)(a)(VII).

(d). Final Decisions to be Made in Public. Although executive sessions may be held to conduct deliberations on a matter exempt from the Open Meetings law, any final decision must be taken at a subsequently reconvened public meeting. See Colo. Rev. Stat. § 24-6-402(3)(a) (state agencies); Colo. Rev. Stat. § 24-6-402(4) (local government); Colo. Rev. Stat. § 22-32-108(5) (school boards); see also Bagby v. School Dist. No. 1, 186 Colo. 428, 528 P.2d 1299 (1974) (holding that the Open Meetings Law is designed to avoid mere "rubber stamping" in public decisions that are effectively made in private, since the public is entitled to know "the discussions, the motivations, the public arguments and other considerations which led to the discretion exercised . . ."); Einarsen v. City of Wheat Ridge, 43 Colo. App. 232, 604 P.2d 691 (1979); Glenwood Post v. City of Glenwood Springs, 731 P.2d 761 (Colo. App. 1986); Hudspeth v. Board of Cty. Comm'rs, 667 P.2d 775 (Colo. App. 1983); but see Intermountain Rural Elec. Ass’n v. Colo. Public Utils. Comm’n, 298 P.3d 1027, 1031-32 (Colo. App. 2012) ("A commission does not engage in policy-making by providing input on proposed legislation, because passing legislation falls exclusively under the policy-making functions of the General Assembly and the Governor.").

In 2012, the General Assembly passed legislation specifically providing that neither a state nor a local public body may adopt any proposed policy, position, resolution, rule, or regulation or take formal action by secret ballot unless otherwise authorized. However, a vote to elect leadership of a state or local public body by that same public body may be taken by secret ballot, and a secret ballot may be used in connection with the election by a state or local public body of members of a search committee, which committee is otherwise subject to the requirements of the Act, but the outcome of the vote shall be recorded contemporaneously in the minutes of the body. Colo. Rev. Stat. § 24-6-402(2)(d)(IV) (2012).

FOIA states that a meeting includes any discussion or action on “a matter over which the public agency has supervision, control, jurisdiction or advisory power.” Conn. Gen. Stat. §1-200(2). In Glastonbury Educ. Ass’n v. FOIC, 234 Conn. 704, 663 A.2d 349 (1995), the Supreme Court held that because the presentation by the parties of last best offers under the compulsory arbitration provisions of the Teacher Negotiation Act, Conn. Gen. Stat. §10-153a et seq., resembled negotiations, the portions of the sessions involving the actual presentations were excluded by Conn. Gen. Stat. §1-200(2) from the definition of “meetings.” The court left open the possibility that the portions of the sessions in which evidence is produced might well be “meetings” and hence mandatorily open. In Boone v. FOIC, No. CV 96-0564971, 1997 WL 583628 (Conn. Super. Sept. 10, 1997), the Superior Court held that a conference which was not mandated or directed by statute and did not involve the presentation of evidence or argument before a decision maker was neither a hearing nor proceeding and thus not a meeting under FOIA. In East Hartford Town Council v. FOIC, No. CV 95-0549602, 1996 WL 62630 (Conn. Super. Jan. 24, 1996), the Superior Court found that the plaintiff, by implication and custom, had authorized two of its members who were the leaders of their respective political parties to meet and discuss the town budget and produce a proposed revision. The court held that when a multimember public agency authorizes, either expressly or by implication, two or more of its members to meet and discuss or act upon a subject that would ordinarily be discussed or acted upon by the agency as a whole and when those two members then meet for that purpose as authorized, they have engaged in a “proceeding” of the agency. See also Common Council v. FOIC, No. CV 95-0074406, 1996 WL 88243 (Conn. Super. Jan. 31, 1996). In Town of Sprague PZC v. FOIC, 3 CSCR 593 (1988), the Superior Court upheld an FOIC finding that the agency’s out-of-state field trip was a “meeting” under FOIA. See also Lebanon Inland Wetlands Comm’n v. FOIC, No. 101912, 1994 WL 86329 (Conn. Super. Mar. 4, 1994) (“site walks”). In New London PZC v. FOIC, 17 Conn. L. Rptr. No. 2, 70 (1996), the Superior Court held that an informal workshop organized and run by a zoning enforcement officer for the purpose of gathering information and informing a potential applicant of the requirements of the zoning regulations, voluntarily attended by members of the planning and zoning commission on their own time, did not constitute a PZC “meeting”, even though commission members offered their opinions on zoning issues during the workshop. In Presnick v. FOIC, No. CV 96-056777, 1998 WL 19911 (Conn. Super. Jan. 12, 1998), aff'd, 53 Conn. App. 162, 729 A.2d 236 (1999), the Superior Court held that a gathering of the members of the board of selectmen to decide whether to accept or reject an arbitrator’s decision on a teacher’s contract was not a meeting under Conn. Gen. Stat. §1-200(2) because it pertained to “strategy with respect to collective bargaining.” In Meriden Bd. of Educ. v. FOIC, No. CV 99-0496503S, 2000 WL 804597 (Conn. Super. June 6, 2000), the Superior Court held that under Conn. Gen. Stat. §1-200(2) an agency may “in some circumstances hold a ‘proceeding’ when it authorizes some of its members to meet during a recess to discuss Robert’s Rules of Order and that this will constitute a ‘meeting.’”

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The Open Meetings Act applies to all meetings "at which the members consider, conduct, or advise on public business, including gathering information, taking testimony, discussing, deliberating, recommending, and voting."  D.C. Code Ann. § 2-574(1).

The Act applies to meetings at which “any official business, policy, or public matter of the agency is formulated, presented, discussed, or voted upon.” O.C.G.A. § 50-14-1(a)(3)(A).

The nature of business conducted at a meeting open to the public includes making or deliberating "toward a decision upon a matter over which the board has supervision, control, jurisdiction, or advisory power." Haw. Rev. Stat.§ 92-2.

Serial One-on-One Communications: In August of 2005, the OIP opined while the Sunshine Law allows two council members to discuss county business between themselves, see Haw. Rev. Stat. § 92-2.5, the statute does not permit either of those council members to then discuss the same council business with any other council members outside of a properly noticed meeting. Serial One-On-One Communications, OIP Op. Ltr. No. 05-15 (August 4, 2005). The OIP concluded that such serial communication is contrary to the letter, the intent and the spirit of the statute and therefore not permitted. Id. In a lawsuit initiated by a non-profit media organization concerning the serial one-on-one communications that were the subject of the OIP opinion, the Intermediate Court of Appeals agreed with the conclusion of the OIP, except that it held that the limitation on serial one-on-one communications applies only when a quorum of board members are involved in the serial communications. Right to Know Committee v. City & County of Honolulu, 117 Hawai‘i 1, 10-11, 175 P.3d 111, 120-21 (2008). Thus, a quorum of board members may not use serial one-on-one conversations to circumvent the Sunshine Law. Id.

There is no attempt in the Open Meeting Law to distinguish between various types of meetings such as “information gathering” or “fact-finding” sessions. The litmus test is simply whether the meeting has been convened “to make a decision or to deliberate toward a decision on any matter.” Idaho Code § 74-202(6). However, the definition of “deliberate” should bring “information gathering” or “fact-finding” sessions under the ambit of the law. Idaho Code § 74-202(2).

“[I]n order for a meeting of a public body to be subject to the requirements of the Open Meetings Act, it is not necessary that business be formally transacted.”  Kan. Att’y Gen. Op. 1979-200.  “Discussion of the affairs and business of the body is all that is necessary to invoke the provisions of the Act.”  Id.

Binding action by the public body must be considered in open session, and “no binding action by such public bodies or agencies shall be by secret ballot.”  K.S.A. 75-4318(a).  The public must be able to ascertain how each member voted.  Kan. Att’y Gen. Ops. 93-55; 86-176; 81-106; and 79-167.

The Open Meetings Act covers all meetings of public agencies, "whether regular or special and informational or casual gatherings," Ky. Rev. Stat. 61.805(1), "at which any public business is discussed or at which any action is taken by the agency." Ky. Rev. Stat. 61.810(1).

"Action taken" is defined as "a collective decision, a commitment or promise to make a positive or negative decision, or an actual vote by a majority of the members of the governmental body." Ky. Rev. Stat. 61.805(3); see 94-OMD-127 (city council's vote to hire architecture firm constituted "action taken" and name of firm must be released to public, even though other steps were left to make contract final);  Bd. of Comm'rs of Danville v. Advocate Commc’ns, 527 S.W.3d 803 (Ky. 2017) (holding board’s decision to bid on property at an upcoming absolute auction constituted “action taken”).

The location of a meeting is irrelevant to whether the meeting should be open to the public. A fiscal court luncheon meeting at a country club and a meeting on a boat at which public business was discussed were held to be subject to the Open Meetings Act. Fiscal Court v. Courier-Journal, 554 S.W.2d 72, 73 (Ky. 1977). Cf. 95-OMD-136 ("A quorum of the members of a public agency may attend a professional or social event, such as a convention, without violating the Open Meetings Act [although the event or meeting must be one] organized by someone other than the public agency").  The Open Meetings Act does not require government agencies to only conduct meetings in the most convenient locations at the most convenient times. See Knox County v. Hammons, 129 S.W.3d 839 (Ky. 2004).

Mich. Comp. Laws Ann. § 15.263(10) specifically provides that the OMA does not apply to "a meeting that is a social or chance gathering or conference not designed to avoid this act." The Michigan Attorney General opined that the legislature included this exception so that members of a public body, even though constituting a quorum, could listen to the concerns of members of the public or persons with special knowledge in the presence of other interested persons. Examples would be a conference of the American Association of State Transportation Officials or a conference of educators designed to provide information of professional interest to the participants.

However, when a gathering is designed to receive input from officers or employees of a public body, the OMA requires that the gathering be held at a public meeting. 1979-80 Op. Att'y Gen. 29 (1979). Furthermore, since this exception includes meetings "not designed to avoid the act," this suggests a legislative intent that the OMA should apply to those meetings designed to avoid the OMA. Thus, a public body cannot avoid the OMA by deliberately dividing itself into groups of less than a quorum to deliberate on public policy, because doing so would circumvent this apparent legislative intent, as well as the overall objective of the OMA to promote openness and accountability in government. Booth Newspapers, Inc. v. Wyoming City Council, 168 Mich. App. 459, 425 N.W.2d 695 (1988); see also Booth Newspapers, Inc. v. Univ. of Mich. Bd. of Regents, 192 Mich. App. 574, 481 N.W.2d 778, 782 (1992) ("Because defendant, a public body, deliberately divided itself into subquorum groups to deliberate on public business [the selection of a new university president], in direct circumvention of the OMA's objective of promoting openness and accountability in government, we hold that . . . they constituted a constructive quorum under [the OMA].").

All "decisions" of a public body are to be made at meetings which are open to the public. Mich. Comp. Laws Ann. § 15.263(2). A "decision" is defined in Mich. Comp. Laws Ann. § 15.262(d) to include "a determination, action, vote, or disposition upon a motion, proposal, recommendation, resolution, order, ordinance, bill, or measure on which a vote by members of a public body is required and by which a public body effectuates or formulates public policy. All deliberations of a public body constituting a quorum of its members" must also take place at open meetings. Id. § 15.263(3). Thus, when a public body meets to consider information from its staff relating to issues of fact and law contained in a proposal for decision, it is deliberating toward a decision within the scope of the OMA and must do so at a meeting to which the public will be admitted. 1977-78 Op. Att'y. Gen. 465, 467 (1978). The discussion of the form and style of a decision or order is also part of the deliberation toward and rendering of the final decision. 1977-78 Op. Att'y Gen. at 467; see also Booth Newspapers, Inc. v. Univ. of Mich. Bd. of Regents, 481 N.W.2d at 783 ("The shortening of the candidate list [by subquorum groups] consisted of an undisputed decision-making process that was carried out with the full consensus of the board . . . and these decisions should have been made only at open meetings."). Some loopholes in the general "decision" rule have been recognized in terms of content, since the definition of "decision" is restricted to actions "by which a public body effectuates or formulates public policy." Mich. Comp. Laws Ann. § 15.262. For example, when members of a public body meet to discuss their individual elections and political concerns, they are not considering matters of public policy within the OMA, and need not follow its requirements. 1979-80 Op. Att'y Gen. 55 (1979).

Since "decisions" must be made at open meetings under Mich. Comp. Laws Ann. § 15.263(2), a number of methods of decision-making which would skirt this requirement have been struck down by the courts. Thus, a legislative committee may not engage in the practice of "round-robining" by which votes on a measure are obtained by a member of the committee going to other members and obtaining their signatures on a tally sheet. 1979-80 Op. Att'y Gen. 216 (1977). Moreover, any voting procedure at a public meeting which prevents citizens from knowing how members of a public body have voted is prohibited. 1977-78 Op. Att'y Gen. 338 (1978). The OMA thus prohibits public bodies from voting by secret ballot, Esperance v. Chesterfield Twp., 89 Mich. App. 456, 280 N.W.2d 559, 563 (1979), and from holding phone call conference meetings, 1977-78 Op. Att'y Gen. 21, 32 (1977).

A provision in the bylaws of a city's downtown development authority that allows board members to vote by proxy violates the Open Meetings Act because proxy voting fails to make the important deliberative aspects of the absent board member's decision-making process open to the public when rendering a decision that effectuates public policy. Op. Att’y. Gen. 7227 (2009). The OMA's requirements are met when vote is by roll call, show of hands, or "any other method whereby the way a public official voted is made known to the public." Esperance, 280 N.W.2d at 563.

Meetings of public bodies "for the purposes of briefing, discussion of public business, formation of tentative policy, or the taking of any action by the public body," are subject to Open Meetings Act. Neb. Rev. Stat. §84-1409(2).

The Statute states that a “meeting” is for “purpose of discussing or acting upon a matter or matters over which the public body has supervision, control, jurisdiction, or advisory power.” RSA 91-A:2,I.

To qualify as a “meeting” under OPMA, a gathering of a public body must, among other things, be “held with the intent, on the part of the members of the body present, to discuss or act as a unit upon the specific public business of that body.” N.J.S.A. 10:4-8b. Since the law applies to both discussions and actions by a public body, information-gathering and fact-finding sessions and all deliberations toward a decision must be open to the public and subject to the other requirements of OPMA. See Allan-Deane Corp. v. Bedminster Twp., 153 N.J. Super. 114, 379 A.2d 265 (App. Div. 1977); South Harrison Township Committee v. Board of Chosen Freeholders of Gloucester County, 210 N.J. Super. 370, 510 A.2d 42 (App. Div. 1986).

The OML requires all meetings of a public body to be open to the general public regardless of the nature of its business, unless the business to be discussed falls within either one of 3 categories of exemptions or one of 8 specified categories for which executive sessions are allowed.
Certain deliberations are exempt entirely from the OML’s coverage. By its express terms, the OML does not extend to (1) judicial or quasi-judicial proceedings except proceedings of the public service commission and zoning boards of appeals, (2) deliberations of political committees, conferences and caucuses in certain instances, and (3) deliberations on any matter made confidential by federal or state law. N.Y. Pub. Off. Law § 108 (McKinney 1988).
Executive sessions may be conducted for the following purposes: (a) matters which will imperil the public safety if disclosed; (b) any matter which may disclose the identity of a law enforcement agent or informer; (c) information relating to current or future investigation or prosecution of a criminal offense which would imperil effective law enforcement if disclosed; (d) discussions regarding proposed, pending or current litigation; (e) collective negotiations pursuant to article fourteen of the civil service law; (f) the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation; (g) the preparation, grading or administration of examinations; and (h) the proposed acquisition, sale or lease of real property or the proposed acquisition of securities, or sale or exchange of securities held by such public body when publicity would substantially affect the value thereof. N.Y. Pub. Off. Law § 105 (McKinney 1988).

All meetings are covered if they are for the purpose of “conducting hearings, participating in deliberations, or voting upon or otherwise transacting the public business . . .” G.S. § 143-318.10(d).

A gathering must pertain to “public business” to be subject to the law. A governing body does not have to transact business for a gathering to be a meeting. See, e.g., N.D. Op. Att’y Gen. 2001-O-07 (2001). The open meetings law applies to all stages of the decision-making process, including gathering information, holding deliberations, and making a final decision, according to the attorney general.

In Dickinson Education Association v. Dickinson Public School District No. 1, 252 N.W.2d 205, 212-13 (N.D. 1977), the North Dakota Supreme Court held that committees (consisting of a portion of the total membership of a covered board) must hold their meetings in public. The court also held that all school board (or negotiating committee) meetings where teacher contract offers and school board offers and counteroffers are considered must be open to the public.

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All “official action” and “deliberation” by a quorum of an agency must take place at a public meeting, unless one of the Act’s exceptions applies. 65 Pa. C.S.A. § 704. “Official action” is defined as follows:

·      recommendations made by an agency pursuant to statute, ordinance or executive order;

·      the establishment of policy by an agency;

·      the decisions on agency business made by an agency; or

·      the vote taken by any agency on any motion, proposal, resolution, rule, regulation, ordinance, report or order.

65 Pa. C.S.A. § 703.

What constitutes “official action.” Courts have construed the term “official action” to accommodate a variety of different meanings depending on the context of the situation. See, e.g., Patriot-News Co. v. Empowerment Team of the Harrisburg Sch. Dist., 763 A.2d 539, 545 (Pa. Commw. Ct. 2000) (holding that “empowerment teams” created by school districts engaged in “official action” and deliberation because they were, by statute, acting as “de facto school boards” and could make recommendations that the school boards were “powerless” to alter); Preston v. Saucon Valley Sch. Dist., 666 A.2d 1120 (Pa. Commw. Ct. 1995) (stating that “the term ‘official action’ includes, inter alia, decisions concerning an agency’s business made by an agency, and specifically includes decisions of a school board that commit the board to a particular course of conduct, such as hiring a superintendent”); but see Belitskus v. Hamlin Twp., 764 A.2d 669 (Pa. Commw. Ct. 2000) (holding that township supervisors’ conduct in setting up a meeting with a water association did not constitute official action); Morning Call v. Bd. of Sch. Dirs., 642 A.2d 619 (Pa. Commw. Ct. 1994) (holding that action taken by the Board in executive session reducing the number of candidates for superintendent from five to three constituted “merely deliberations or discussions rather than official action”); Common Cause/Pennsylvania v. Itkin, 635 A.2d 1113 (Pa. Commw. Ct. 1993) (stating that the revision of the expense guidelines in accord with a prior resolution did not constitute “official action” for purposes of the Sunshine Act, “but was, instead, a ministerial action by which the Rules Committee executed a resolution of the House of Representatives”).

The test is not the nature of the business being transacted that makes a gathering subject to the act. The convening of a quorum “to discuss or act upon a matter of which the public body has supervision, control, jurisdiction or advisory power” constitutes a meeting subject to the act. S.C. Code Ann. (1991) § 30-4-20(d). No chance meeting, social gathering or electronic communication may be used to act on a matter within the jurisdiction of a public body. S.C. Code Ann. § 30-4-70(d).

Meetings subject to the Act are those that are called to make a decision or to deliberate toward a decision on any matter. T.C.A. § 8-44-102(C).

As amended in 2019, the statute defines "deliberation" as "a verbal or written exchange between a quorum of a governmental body, or between a quorum of a governmental body and another person, concerning an issue within the jurisdiction of the governmental body." Tex. Gov’t Code§ 551.001(2). Where there has been a "reciprocal giving and receiving of spoken words" about a matter of public business or within the governmental body's jurisdiction, a meeting has occurred. Gardner v. Herring, 21 S.W.3d 767 (Tex. App.—Amarillo 2000, no pet.). The key is whether the members directly or indirectly discuss a matter among themselves. In Peapicker Inc. v. Reagan, 632 S.W.2d 674 (Tex. App.—Tyler 1982, writ ref'd n.r.e.), the commissioners court met to hear a report from a representative of a state agency. The court implied that if the commissioners had merely listened to the report without discussing or questioning there would be no deliberation and, hence, the Act would not be triggered. However, members of a governmental body cannot use questions addressed to a non-member to indirectly deliberate with another member. In Op. Tex. Att’y Gen. No. JM-1127 (1989), the Attorney General was asked if the Act is violated when a quorum of one commission attends a meeting of a separate body it created that is managed by its own board of directors. The Attorney General warned that "[i]ndirect deliberations would occur when . . . commissioners speak to the . . . board in turn, addressing to it remarks intended for the other commissioners." Op. Tex. Att’y Gen. No. JM-1127 (1989); see also Op. Tex. Att’y Gen. No. JC-307 (2000) (a verbal exchange may include an exchange of written or other non-spoken words).

Nor can members of a governmental body avoid the requirements of the Act by individually signing a letter expressing their opinion on a matter of public policy over which the body has supervision or control. "If a quorum of a governmental body agrees on a joint statement on a matter of such business or policy, the deliberation by which that agreement is reached is subject to the requirements of the act, and those requirements are not necessarily avoided by avoiding the physical gathering of a quorum in one place at one time." Op. Tex. Att’y Gen. No. DM-95 (1992). "[A] governing body that deliberates through a series of closed meetings of members of less than a quorum risks a finding by a trier of fact that either a violation of [Section 551.002] has occurred, or worse, that members have conspired to circumvent the act in violation of  [Section 551.143]." Op. Tex. Att’y Gen. No. DM-95 (1992); see also Tex. Gov’t Code § 551.143(a).

 

The Act applies if the public body's business will be discussed or transacted in any way. Va. Code Ann. § 2.2-3701.

“Meeting” means a meeting at which “action” is taken. RCW 42.30.020(4). “Action” includes discussion, public testimony, review, evaluation, and other deliberation, as well as “final” action. RCW 42.30.020(3). Final action is a collective positive or negative decision by formal motion or informal proposal or vote by the majority of members of the governing body. RCW 42.30.020(3); Miller v. City of Tacoma, 138 Wn.2d 318, 331, 979 P.2d 1129 (1999). In other words, there is a meeting whenever a governing body discusses agency business — even if no decisions are made.

(This section is blank. See the subpoints below.)

In response to questions raised regarding whether information gathering sessions fell under the public meetings law in addition to sessions where decisions were made, the Legislature in 1995 redefined "meetings" as outlined above. The amendments make it clear that virtually any gathering of a quorum of a public body where business is discussed falls under the Public Meeting Law.