(Ed: Katie Ann Lewis has written for The Saint Report about storm water runoff and the impact of erosion on development . Here she provides a detailed look at open meetings laws and analyzes the recent Wyoming Supreme Court decision on closed-door meetings. She also reviews Open Meeting Laws as they apply to executive session, mediation and litigation, contract and employment matters.)
A recent Wyoming Supreme Court decision has brought the issue of open meetings and the ambiguity of statutory language regarding public meetings to the media forefront. What seemingly could be thought to be legitimate deliberations behind closed doors by a local Board actually was found by the Court to violate Wyoming’s Open Meeting Laws.
How does this apply to development projects and community advocacy in land use politics?
If you go to a public meeting or have any involvement in local or state levels of government, then this has a lot to do with you. This Open Meeting Law, as seen in the Wyoming case, can become a very useful tool in project management, litigation and involvement in governmental processes. Whenever a public meeting is called, make sure your group is aware of the rules governing proceedings-make sure notice is given, and by all means, make sure your local or state decision makers are being on the up-and-up with your State’s laws. It very well could lead to a different outcome if it’s found they violated the Open Meeting Law, and it could be exactly what you need to win a project.
The Wyoming Supreme Court decided that after a municipal building code appeals board had several “closed” meetings, it was violating Wyoming’s Open Meetings Law. Cheyenne Newspapers Inc. v. Building Code Board of Appeals, 2010 WL 47357 (WY. 1/8/2010). The Board of Appeals conducted a hearing on a highly contested matter and after hearing from both parties, the Board retired to deliberate in private. During the trial, the Board claimed the private deliberations were not executive sessions, but quasi-judicial. The Board was unable to reach a final decision, resulting in further meetings, which were open to the public. At the later public meeting, the Board discussed the deliberations and came to a final decision, denying demolition permits, the issue on appeal.
On behalf of the people, a local newspaper filed an action claiming a violation of the Open Meeting Law, claiming their final decision was invalid as the closed-door meeting was a meeting in accordance with the State’s Open Meeting Act. The Open Meeting law, Wyo. Stat. Ann § 16-4-403 (a) provides that “all meetings of the governing body of an agency are public meetings, open to the public at all times,” and that no action can be taken except during a public meeting”. The court had two questions to review: whether quasi-judicial deliberations are subject to Wyoming Administrative Procedures Act (WY Public Meetings Act) and whether the Board took action that must be thrown out due to meeting privately to deliberate and voting later at a public meeting for a final decision.
The court responded to the question whether the quasi-judicial deliberations were subject to the Public Meetings Act, that the Board, per the statutory definition of “meeting,” “agency,” and “board,” that the Board was conducting public business, and all deliberations must be in a public forum, and subject to the Public Meetings Act. As to the quasi-judicial deliberations occurring after a contested case hearing, there was no reason to have an executive session to deliberate the facts of the case, and therefore the Public Meetings Act was violated. The Act specifically states that any agency’s deliberations occur during a public meeting. The Board met in private to deliberate and the agency voted at a public meeting.
As for the second question about the decision of the Board, the court cited to Mayland v. Flitner, 2001 WY 69, 28 P.3d (Wyo. 2001), where the facts to each case were similar in that a Board held private deliberations and publicly voted on the outcome. The court held here however, that even though the Board voted at a public meeting and only the first sentence of the statute was violated, the second sentence about making a final decision at a public meeting was not violated. The Board violated the statute; the Agency did not, by taking a final vote at a public meeting. Therefore, the court upheld their decision on the contested case hearing, and affirmed the district court’s ruling that the Board took no action that must be overturned.
Open Meeting Laws
In all levels of business, and government, open meetings laws are typically governed by statutory and legislative acts regulating meeting protocol, and their purpose is to legitimize business and government decisions and discussions. All 50 states, Washington D.C., and the Federal Government have their own legislation regulating the public’s right to knowing what is being discussed. In some states, this group of statutory language is referred to as “Open Meeting Laws,” “Sunshine Laws,” or referenced with a state’s Freedom of Information Act. Through sunshine laws, administrative agencies are required to do their work in public. A law requiring open meetings specifies the only instances when a meeting can be closed to the public and establishes certain procedures and protocol be followed before a meeting becomes closed.
With each state having its own legislation, there is still much confusion over which meetings are open, which are not, and a lot of indistinguishable facts in between. These laws require, in most situations, that meetings of governmental bodies are held in public, but there are exceptions. The Open Meeting Law provides for certain circumstances, however, when a meeting may be held in executive, or closed sessions.
Executive Sessions: An executive session is defined as “any meeting of a governmental body which is closed to certain persons for deliberation on certain matters.” Usual examples where an executive meeting can be called are: Protection of Privacy and Reputation
- To discuss the reputation, character, physical condition or mental health of an individual.
- To consider the discipline or dismissal of, or to hear complaints or charges brought against, a public officer, employee, staff member, or individual.
Mediation, Litigation or Contract Negotiations
- To meet with a mediator with respect to litigation or decision on a public business within its jurisdiction involving another party.
- The decision to mediate must be done in a public meeting, and a final decision must be made at an open meeting.
- To discuss strategy with respect to collective bargaining or litigation, if an open meeting may have a detrimental effect on the bargaining or litigating position of the governmental body
- Only if an open meeting may have a detrimental effect on the litigating position of the governmental body.
- Contract negotiations and strategy sessions to prepare for such negotiations
Criminal Matters and Security Issues
- To discuss implementing security measures
- To investigate charges of criminal misconduct or discuss the filing of criminal complaints.
- To consider the purchase, lease or value of real property, if an open discussion may have a detrimental effect on the negotiating position of the governmental body with a person, firm, or corporation.
- The governmental body must show that an open meeting might have an adverse impact on the body’s negotiating position with a third party.
Compliance with Statutes Requiring Executive Sessions
- To comply with the provisions of any general or special law requirements.
- There may be provisions in certain statutes which require that a governmental body consider a particular issue in a closed session.
- To consider and interview applicants for employment by a preliminary screening committee or a subcommittee appointed by a governmental body if an open meeting will have a detrimental effect in obtaining qualified applicants.
In most states, executive sessions may not be held without having an open public meeting to announce that an executive session is to take place. Notice must be appropriately given of the public meeting. Even so, executive sessions are not always 100% private in that the records and minutes of every executive session become “public records”. However, those minutes may remain secret until the executive session has accomplished its task, if released at all.
For example, in Massachusetts, the purpose behind the Open Meeting Laws was to allow the public access to meetings where public policy is made. In Massachusetts, the Open Meeting Law applies to every meeting of a quorum of a governmental body if any public business over which the governmental body has jurisdiction is discussed or considered. A governmental body engages in “deliberation” under the Law, and must comply with the Law’s requirements, whenever a quorum engages in a “verbal exchange.” Medlock v. Board of Trustees of the University of Massachusetts, 31 Mass. App. Ct. 495 (1991).
Intent: The intent behind open meeting legislation was to provide taxpayers and citizens the right to be involved in the decision making of their city/state/country. Certain records, minutes, transcripts and legislative documents, depending on the classification of the meeting must be made available for review by the public as well under this law. When working in a particular state, checking the notice provisions, the Freedom of Information Acts, and Open Meeting/Sunshine Laws will help you to determine which state classifies which meetings as open to the public, and what constitutes a valid reason for an executive session.
Notice Provisions: In order for the public to be informed of upcoming meetings, and agendas, each state/city/town will have notice statutes which govern how many days notice must be given of upcoming meetings, the deadline for filing warrant articles and appeal provisions. By giving the public enough notice (usually 48 hours), and posting notice in a public place, it cannot be argued that the state/city/town was adhering to the law allowing public participation in government.
Emergency Meetings: Except for notice requirements, the Law applies to emergency meetings. An emergency meeting is defined as “a sudden, generally unexpected occurrence or set of circumstances demanding immediate action.” If a meeting MUST be held, it must be shown that the emergency is of a magnitude that waiting 48 hours is absolutely impossible. Also, the emergency must be directly related to the governmental body calling for the emergency meeting.
Violations: What is considered a “violation” may vary from state to state, but the letter of the law is clear when explaining which meetings must be open, and what constitutes a violation. Private conversations held in person or over the phone, email conversations among a quorum of members of a governmental body that relate to public business are all examples of a violation of Open Meeting Laws. It should be noted however, that not all email correspondence is a violation of the law-sending emails with materials for meetings, correspondence, agendas or reports about the meetings are not violations of the Open Meeting Law. Also, the Law does not apply to any random interactions or social meetings of a governmental body or members of a committee. As long as there is no formal and final decision made pertaining to official business matters, there is no violation.
Penalties: If it is ascertained that there has been a violation of the law, a court may enter an order invalidating any action taken at any meeting in which the Law has been violated, as long as the complaint is received in accordance with each state/city/town’s requirements. Unless it is found that the records or meeting minutes should remain confidential, any recorded information may be publicized. The governmental body may be susceptible to civil penalties and fines, for each meeting held in violation of the law. The Court has held that it is not necessary to reprimand a governmental body which has admitted to violations of the Open Meeting Law when the governmental body subsequently took appropriate action to correct those violations.
Relief: On proof in such a suit that a governmental body or any of its members have violated any provision of the Open Meeting Law, the court may enter an order requiring compliance with the Law at future meetings. The District Attorney may also seek to enforce the Law by directing governmental bodies in appropriate circumstances to comply fully with the provisions of the Law in the future.
Katie Ann Lewis is corporate paralegal for The Saint Consulting Group, email firstname.lastname@example.org, phone 781.749.7290 Ext: 7146