1. Executive branch agencies

The Open Meetings Act generally governs executive branch agencies, but its application to the day-to-day operations of the executive branch is limited in two significant respects. First, the OMA governs only gatherings that are defined as "meetings." Second, the OMA specifically excludes from its reach "staff meetings or other gatherings of the employees of a public entity." AS 44.62.310(d)(6). A meeting is defined to include a gathering of more than three or a majority, whichever is less, of the members of a governmental body when a matter upon which the body is empowered to act is considered by the members collectively. If the body has authority to establish policies or make decisions for a public entity, it does not matter whether the gathering was pre-arranged. AS 44.62.310(h)(2). If it does not, and is purely advisory, the gathering is only defined as a meeting if it is pre-arranged for the purpose of considering a matter upon which the governmental body is empowered to act.

Agencies headed by a single director are not subject to the OML because there is no multi-member body making decisions.  Decisions are made by the director or Governor.  See Ariz. Att’y Gen. Op. No. 75-7.

But if the Governor or agency head appoints a committee or board (see A.R.S. § 38-431(1)), there is debate as to whether any meeting by that body is a public meeting.  See Ariz. Att’y Gen. Op. No. 75-7. Attorney General Opinions conflict on this issue.  Compare Ariz. Att’y Gen. Op. No. I90-013 (advisory committee appointed by Governor subject to OML), with Ariz. Att’y Gen. Op. No. I92-007 (advisory committee appointed by Governor not subject to OML).

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Though the Executive Branch is subject to the records portion of the Act, meetings of the Executive Branch are only open if they fall within the definition of a public body. See 29 Del. C. § 10002(k).

The Sunshine Act provides that "[a]ll meetings (including hearings) of any department, agency, board or commission of the District government, including meetings of the Council of the District of Columbia, at which official action of any kind is taken shall be open to the public." D.C. Code Ann. § 1-207.42(a).

For purposes of the open meeting rule, the Open Meetings Act defines a "meeting" as "any gathering of a quorum of the members of a public body . . . at which the members consider, conduct, or advise on public business, including gathering information, taking testimony, discussing, deliberating, recommending, and voting, regardless of whether held in person, by telephone, electronically, or by other means of communication."  Id. § 2-574(1).  The Act then defines "public body" to include only the boards that supervise or control agencies and the boards of directors of instrumentalities, and to exclude any District agency or instrumentality itself.  D.C. Code Ann. § 2-574(3).

Because no chief executives at any governmental level constitute a “board or commission,” they are not subject to the requirements of section 286.011.  For example, the Governor is not subject to the Sunshine Law when discharging his constitutional duties as chief executive officer. On the other hand, the law is applicable to the Governor and Cabinet when sitting as a board created by the Legislature, such as the State Board of Education or the Department of Natural Resources.  In these circumstances, a board created by the Legislature is subject to legislative “dominion and control.” See Turner v. Wainwright, 379 So. 2d 148 (Fla. 1st DCA 1980), aff’d & remanded, 389 So. 2d 1181 (Fla. 1980) (application of the Sunshine Law to the parole commission does not violate separation of powers or infringe upon the clemency power of the executive branch).  Similarly, the Sunshine Act does not apply to a mayor acting in his capacity as chief executive.  A mayor is subject to the Act only when sitting as a member of a board or commission of a state agency. See Op. Att’y Gen. Fla. 83-70 (1983) (if decision to authorize corrective work on a beautification project falls within the administrative functions of the mayor and would not come before the city council for further action, discussions between member of city council and the mayor would not be subject to the Act; if decision to authorize such work would come before the city council and could require the mayor to exercise his power to break tie votes, the mayor should not confer privately with a member of the city council regarding such matters).

The principles discussed thus far also apply to the office of city manager and other executive offices. Cf. Krause v. Reno, 366 So. 2d 1244 (Fla. 3d DCA 1979) (once city manager utilizes an advisory group to assist in making recommendations for position of chief of police, he, although a chief executive officer, has created a “board” to which the Act applies); see also Wood v. Marston, 442 So. 2d 934 (Fla. 1983) (committee appointed by president of university to solicit and screen applications for deanship is a “board or commission”; thus closing of meetings to the public is improper); Op. Att’y Gen. Fla. 74-47 (1974) (city manager, who was the chief executive officer of a local governmental body, was not subject to the Sunshine Law so long as he did not act as “liaison” for board of directors or attempt to act in place of board members); cf Bennett v. Warden, 333 So. 2d 97 (Fla. 3d DCA 1976) (president of a junior college was neither a “board” nor “commission” and meetings held by him with a fact-finding group are not subject to the Sunshine Law); Cape Publ’ns Inc. v. City of Palm Bay, 473 So. 2d 222 (Fla. 5th DCA 1985) (distinguishing Krause, and holding that where city charter places sole responsibility for selection of police chief in city manager, committee formed to assist in fact-finding and given no decision-making function is not subject to the Sunshine Law); Clewiston Commons, L.L.C. v. City of Clewiston, No. 2:18cv339-FtM-PAM-MRM, 2020 WL 1158703, at *5 (M.D. Fla. Mar. 10, 2020).

The function of the judicial nominating commission is executive in nature, and thus it is not subject to the Act. Kanner v. Frumkes, 353 So. 2d 196 (Fla. 3d DCA 1977) (function of judicial nominating commission is executive in nature and mandate comes from the Florida Constitution and not from the Legislature, Governor or judiciary; thus, the commission is not subject to the Sunshine Law). Cf. Judicial Nominating Comm’n v. Graham, 424 So. 2d 10 (Fla. 1982) (nominating commissions are part of the executive branch). Note, however, that Fla. Const. art. V, sec. 11 currently provides that the proceedings of the commissions and their records, but not their deliberations, shall be open to the public.

“If an individual is not already a member of a board or commission governed by the Sunshine Law, nothing about working on economic development projects or receiving proprietary information converts him or her into one.”  Sarasota Citizens for Responsible Gov’t v. City of Sarasota, 48 So. 3d 755 (Fla. 2010).

Executive branch agencies and officials are subject to the Act. O.C.G.A. §§ 50-14-1(a); 50-14-6.

“Governing body” means the members of any public agency that consists of two or more members, with the authority to make decisions for, or recommendations to, a public agency regarding any matter. Idaho Code § 74-202(5).

“Public agency” is defined in Idaho Code § 74-202(4) as:

(a) any state board, commission, department, authority, educational institution or other state agency which is created by or pursuant to statute, other than courts and their agencies and divisions, and the judicial council, and the district magistrates commission;

(b) any regional board, commission, department or authority created by or pursuant to statute;

(c) any county, city, school district, special district, or other municipal corporation or political subdivision of the State of Idaho;

(d) any subagency of a public agency which is created by or pursuant to statute, ordinance, or other legislative act.

Those reported decisions which have construed the Idaho Open Meeting Law have generally not addressed any issues concerning whether a particular governmental body is subject to the provisions of the law. The cases have assumed the governmental body involved was subject to the Open Meeting Law and have considered actions of a city council, a school district board, the state commission for the blind, a county commission and a public hospital board. However, the Idaho Supreme Court has held that an administrative committee of the State Water Resources Board (which did not include a full quorum of the entire Water Resources Board) was not a “governing body” entrusted with the formation of public policy and therefore was not subject to the Open Meeting Law. Idaho Water Resources Board v. Kramer, 97 Idaho 535, 548 P.2d 35 (1976).  Moreover, in Safe Air for Everyone v. Idaho State Dept. of Agriculture, et al, 145 Idaho 164, 177 P.3d 378 (2008), the Idaho Supreme Court held that employees of a state agency did not constitute a “governing body.” Id., 145 Idaho at 168.

Any entity exercising executive or administrative power of the state or its political subdivisions is covered as a “public agency.” Ind. Code § 5.14-1.5-2(a)(1)–(2). In addition, any entity that is subject to budget review by the State Board of Tax Commissioners or the governing body of a county, city, town, township or school corporation or subject to audit by the State Board of Accounts required by statute, rule or regulation also is subject to the Act. Id. § 5.14-1.5-2(a)(3); see also Perry Cnty. Dev. Corp. v. Kempf, 712 N.E.2d 1020, 1025 (Ind. Ct. App. 1999) (“An entity does not become a ‘public agency,’ thus coming within the purview of the statutes in question, by contractually agreeing to submit to an audit or budget review, as is the case here. Rather, an entity is “subject to” those procedures only if compelled to submit by statute, rule, or regulation.”). Any advisory commission or other body created by statute, ordinance or executive order to advise the governing body of a public agency is subject to the Act, as well as any building corporation that issues bonds to construct public facilities. Ind. Code § 5-14-1.5-2(a)(4), (5). Individual office-holders are not “public agencies,” so the statute does not require the governor, mayor or other chief executive to open their meetings to the public, see Ind. Code § 5-14-1.5-2(a), unless they are meeting with the majority of the governing body of a public agency (which constitutes a meeting of that agency under the Open Door Law.). See Ind. Code § 5-14-1.5-2(a).

"Governmental" bodies are covered by the statute. Iowa Code § 21.3. See also Iowa Code § 21.2(1), (2).

Generally, the governing bodies of all executive branch agencies are covered by the Open Meetings Act. See Ky. Rev. Stat. 61.805(2). However, executive cabinet meetings may be held in closed session. See Ky. Rev. Stat. 61.810(1)(h).

Certain executive bodies are expressly excluded from the Act's definition of public bodies. See § 3-101(h)(3). Among the more important exclusions are single member entities, the governor's Cabinet and Executive Council or a local jurisdiction's counterpart, and courts, except when exercising rulemaking power. Id. See § 3-101(h)(3) for the complete listing of excluded bodies.

Examples of executive branch agencies which have been found to be covered under the OMA are the Huron River Watershed Council, 1977-78 Op. Att'y Gen. 329 (1978), the State Safety Commission, 1977-78 Op. Att'y Gen. 21 (1977), a county concealed weapons licensing board, 2001 Op. Att'y Gen. No. 7073 (2001), and local medical control authorities, 2004 Op. Att'y Gen. No. 7165 (2004). Michigan Parole Board proceedings have been held to be exempted from OMA, Glover v. Mich. Parole Bd., 460 Mich. 511, 596 N.W.2d 598 (1999). The term "public body" connotes a collective entity; a single individual is not generally recognized as a "board," "commission," "committee," "subcommittee," "authority," or "council." Herald Co. v. City of Bay City, 463 Mich. 111, 129-30, 614 N.W.2d 873 (2000) (city manager acting in his executive capacity not a public body for purposes of OMA and a committee appointed by the manager in selecting a fire chief is also not a public body). An individual acting in his official capacity, even if required to perform the functions of a previous school board (which constitutes a public body) is not a public body for the purposes of the OMA. Craig v. Detroit Pub. Sch. Chief Exec. Officer, 265 Mich. App. 572, 697 N.W>2d 529 (2005), abrogated on other grounds by Speicher v. Columbia Twp. Bd. of Trs., 497 Mich. 125, 860 N.W.2d 51 (2014); Davis v City of Detroit Fin. Rev. Team, 296 Mich. App 568, 821 N.W.2d 896 (2012) (“The State Treasurer, whether acting in his executive capacity or as a ‘one man committee’ of the Detroit Financial Review Team, is not a ‘public body.’”).

Provided that a state executive branch agency, board, commission, or department is "required or permitted by law to transact public business in a meeting," such a meeting shall abide by the provisions of the Open Meeting Law. Minn. Stat. § 13D.01, subd. 1(a).

Executive branch agencies are covered, with some noted exceptions such as law enforcement officials and the military. § 25-41-3(a).

The constitutional provision guarantees access to "the deliberations of all public bodies or agencies of state government and its subdivisions." Mont. Const., Art. II, § 9 (1972). When any executive branch official is functioning in a deliberative sense, that is, conducting or participating in a meeting by which issues within that agency's jurisdiction are discussed, the deliberations must be open. The deliberations must be open regardless of whether the agency or body is merely discussing or actually taking action on an issue. Hearings are also covered by the Open Meetings Law. Mont. Code Ann. § 2-3-202.

The statute does not specifically address application to chief executive officers, such as governor or mayor, but would apply to such individuals to the extent they are members of bodies referred to below. Statute applies to "governing bodies" of all state executive agencies, Neb. Rev. Stat. §84-1409 (1)(a)(ii), "governing bodies" of all political subdivisions, executive or otherwise, §84-1409 (1)(a)(i), all study or advisory committees of the executive department of the state, §84-1409 (1)(a)(iv), and advisory committees of "governing bodies" of all political subdivisions, executive or otherwise, §84-1409 (1)(a)(v).

Any commission, committee, or board appointed by the Governor with at least two members who are not employees of the State Executive Department are defined as a public body and subject to the OML. NRS 241.015(4)(a). The Governor, acting in his or her or official executive capacity, is not subject to the OML.

The Statute applies to executive branch agencies. RSA 91-A:1-a, V and VI.

Executive branch agencies are covered by the Open Meetings Law if they meet the basic requirements of G.S. § 143-318.10(b).

Covered by the law.

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All state agencies supported in whole or in part by public funds, or entrusted with the expending of public funds, or administering public property, are public bodies under the Act except administrative staffs of public bodies, when administrative staffs are not meeting with the public body. 25 O.S. § 304.1. Any meeting between the Governor and a majority of members of any public body is open to the public. 25 O.S. § 308.

Administrative staffs of public bodies, including faculty meetings and athletic staff meetings of institutions of higher education, are not covered by the Act.

The Act covers all executive branch agencies. 65 Pa. C.S.A. § 703.

Presumably covered.  See definition of “public body” in R.I. Gen. Laws § 42-46-2(3).

Covered.

Covered by the Act.

All executive branch agencies are subject to the Open Meetings Act, unless they consist of less than two people. Utah Code § 52-4-103(9)(a).

The law covers “public bodies,” defined as “any board, council or commission of the state or one or more of its political subdivisions, any board, council or commission of any agency, authority or instrumentality of the state or one of its political subdivisions, or any committee of any of the foregoing boards, council or commissions, except that ‘public body’ does not include “councils or similar groups established by the Governor for the sole purpose of advising the Governor with respect to policy.”  1 V.S.A. § 310(4).

In one early judicial interpretation of the statute, the Vermont Supreme Court held that the State Emergency Board chaired by the governor was not an official agency and that the governor could informally convene it by telephone conference call. State v. Vt. Emergency Bd., 136 Vt. 506, 394 A.2d 1360 (1978). The legislature quickly acted in the next session specifically to include the State Emergency Board in the statute. Although the statute no longer references the State Emergency Board, the general legislative intent is clear to cover all workings of state government and any meetings of any “public body” where official action is considered or taken. See 1 V.S.A. § 312(a) (“All meetings of a public body are declared to be open to the public at all times, except as provided in Section 313 [executive sessions].”).

Executive branch agencies are covered by the Act.

OPMA only applies to meetings of the “governing body” of an agency or subagency. “Governing body” refers to multi-member boards, commissions, committees, councils, or any policy or rulemaking body. RCW 42.30.020(2). A committee of any governing body is also covered by OPMA whenever it acts on behalf of the government body, conducts hearings, or takes testimony or public comment. Id.

Since the Open Meetings Act applies only to proceedings of the "governing body" of a public agency, defined as entities with two or more members, individual executives such as a governor or mayor are not covered by the statute. This conclusion simply means a governor can meet with his staff without being required to open such a meeting to the public. However, where the mayor is acting in connection with a city council meeting, he becomes part of a public agency and the meeting would be covered by the Open Meetings Act.

No executive branch agencies are specifically excluded from the statute's coverage.

Executive officials are covered to the extent they participate in a “meeting” (see I.D., below) of a “governmental body.” Chief executive officers of governmental bodies are typically not covered unless they are members of some multi-member board, commission, committee, etc. Thus, executive functions which can be conducted by a single individual are not covered. State ex rel. Plourde v. Habhegger, 2006 WI App 147, ¶ 12, 294 Wis. 2d 746, 752, 720 N.W.2d 130, 133 (“We conclude the open meetings law is not meant to apply to single-member government bodies”).

Any commission, board or other entity that acts as a governing body.  Governing body is not defined by the Act, but the Wyoming Supreme Court has indicated that it is any body with decision-making authority.