By Diana Baker Freeman
Probably the first thing to understand about “open meetings” is that they are not what most people understand to be open. Open meetings mean that every part* of a public meeting is required to be open to public observation. While many entities have a “public comment” period, for the most part, members of the audience may not participate in the deliberations of the board without express invitation by the board. Open Meeting laws may also be referred to as Sunshine Laws, meaning that the business of the board is to be conducted “in the sunshine,” or in the open, and the public may attend. The right to attend does not include the right to participate or to comment. While each state has its own laws, at the federal level, open meeting laws culminated in the Freedom of Information Act, or FOIA, as it is often called (in addition to open meetings, this Act also deals with access to public information). State laws requiring open meetings include Florida’s Government-in-the-Sunshine Law, New Jersey’s Senator Byron M. Baer Open Public Meetings Act, and the very first Sunshine Law, enacted in 1898, the Utah Open and Public Meetings Act. All 50 states now have some form of Sunshine Law; while the provisions vary from state to state, the central premise is that citizens have a right to know how and when decisions are made on their behalf.
*The law allows for certain exceptions to be discussed in an executive or closed session. Voting then must happen once the open session has reconvened.
Meetings must be legally called and posted in accordance with the laws of that state. Typically, a meeting must be posted in a central and visible designated place that is accessible to the public. Some states require that meeting notices be posted in more than one place. With the rise of digital communications, many states have added a requirement of electronic posting on the district’s website if the district has one. Many state laws also include a time frame for posting — early enough to allow the public to be aware of the topics that will be acted on by the board.
Once a meeting has been posted, a majority of the elected board is required in order for it to be legally convened and do the business of the board. Short of a quorum, the board meeting may not proceed. Even if a meeting is called, unless a majority of the members show up, the meeting may not occur. There have been instances where a board used this provision to circumvent its legal duties, such as a board whose members will not meet to certify election results in order to avoid being unseated. If a board uses this ploy to avoid handling the regular business of the board, legal intervention would be employed to force the board members to attend or face legal consequences.
Conversely, it is important to remember that once a majority (quorum) of board members is present, any gathering can be a de facto meeting if board business is discussed. A meeting notice must be posted and the meeting held in public, so this “meeting” could put attendees in violation of open meeting laws. This is often a point of confusion for board members. Board members may all be in attendance at ceremonies, events and social gatherings — they should just avoid “talking shop.” Especially in small communities, it would be nearly impossible to avoid quorums at sporting or social events. In order to avoid the perception that board members are meeting illegally, board members should not gather in a group if at all possible, even if they are talking about a non-board topic. Perception drives public trust.
As long as a quorum is not present, we are safe to discuss board business, correct? Attorneys General have noticed and ruled illegal something known as a walking quorum. Walking quorums can happen when there is not a majority present, but a series of meetings or discussions on a topic happen outside of a posted meeting, effectively creating a quorum. This can also happen by means of a proxy if one person, who is not on the board, speaks to multiple board members and reports to other board members what has been said or agreed to.
Board members may contact each other outside of meetings for information, and of course, for social reasons. They should avoid making decisions or agreements to act on board business outside of a called meeting. There have been court cases where two members were sanctioned for having substantive discussions outside of the public view on a board topic.
Electronic Communications and Open Meetings
Emails, group texts and even social media posts can constitute an illegal meeting. While a non-elected official may “push” information to elected members of a board, the board members cannot “reply all” or use these forums for discussions of district business. Even a single reply can be problematic, since these emails can be forwarded to other members. Announcements made through your electronic agenda/meeting management tool are a good way to avoid open meeting violations because there is no way to inadvertently “reply all.”
Open Meetings and the Public Trust
While Sunshine Laws can seem tedious, it is important to remember that they stem from a need for the public to be informed of the transactions of public businesses. At the heart of governance work is a representative form of government. Maintaining the trust of the community is essential to the leadership and good governance that make a representative government work. Many open meetings provisions were strengthened in the wake of Watergate, when much of the country became cynical about the misuse of public resources by government officials. While penalties for breaking open meeting provisions can range from having actions voided or invalidated to criminal penalties that can involve fines and/or jail time, the real danger of operating in secret is the loss of public trust. Sunshine laws lend credibility to the governance process and enhance openness and integrity in the management of institutions through a diffusion of information. As a board member always acts with the public’s best interests in mind, this leads the way to the creation of a culture of accountability and trust.
Quick Tips to Avoid Open Meeting Violations
NOTE: Laws vary from state to state, and this document is not intended to serve as legal advice. Always consult your board’s attorney for clarification of legal questions.