Skip to content

11. Other penalties

Posts

  • Alaska

    There are no other penalties stated in the open meetings laws for violations. The law specifies that suits to enforce the OMA cannot be brought against members of a governmental body in their individual capacity. Although there are criminal penalties that might arguably apply for knowing and willful violations of the law, this is a very unlikely scenario.

    However, the Alaska Supreme Court has ruled that an allegation of violation of the Open Meetings Act states adequate grounds for a recall, Meiners v. Bering Strait School District, 687 P.2d 287, 301 (Alaska 1984), and public officials have been recalled in a number of communities on this ground. State law requires that the grounds for recall be stated with particularity to give the office-holder a fair opportunity to defend his conduct in a rebuttal limited to 200 words. AS 29.26.260(a)(3). A court reviewing a challenge to a recall petition will not determine the truth or falsity of allegations in the recall petition, because that is the role of the voters, not the courts. Meiners, 687 P.2d at 300, n. 18; von Stauffenberg v. Committee for an Honest and Ethical Sch. Bd., 903 P.2d 1055, 1061 (Alaska 1995).

    While a court cannot determine whether the facts alleged against an official who is the subject of a recall are true or not, the right to recall municipal officials in Alaska is limited to recall for cause, and a court is empowered to review the legal sufficiency of allegations in recall petitions. To do so, it assumes for the sake of the review that the allegations in the petition are true, and then determines whether, if so, the allegations state one of the specified grounds for recall listed in the statutes ("misconduct in office, incompetence, or failure to perform prescribed duties"). Noncompliance with the Open Meetings Act was found by the Supreme Court in Meiners to constitute a failure to perform prescribed duties. In Meiners, the Supreme Court stated that a petition that alleges violation of totally nonexistent laws is legally insufficient, while a petition, that merely characterizes the law in a way different than the targeted official would prefer, is legally sufficient. Meiners, 687 P.2d at 301. As to the latter case, the Supreme Court stated that the "rebuttal statement is the proper forum in which the official may defend against the charges." In von Stauffenberg, the Supreme Court assumed for purposes of review that School Board members had entered into a closed-door session for consideration of whether to retain a school principal, where that discussion was likely to address sensitive personal information, and limited its review to determining whether doing so was a violation of Alaska law. The court stated that "given the relevant exception to the Open Meetings Act (referring to AS 44.62.310(c)(2)), the grounds for recall allege a violation of a totally nonexistent law. That is, there is no law which precludes public officials from discussing sensitive personnel matters in closed-door executive sessions." 903 P.2d 1060, n.13.

    While not subject to the OMA itself, regulated utility cooperatives are subject to statutory open meetings requirements pursuant to AS 10.25.175 and their own bylaws. Utility board members may be recalled for violations of open meetings requirements, much as public officials can be. Matanuska Electric Association v. Rewire the Board, 36 P.3d 685, 693 (Alaska 2001). Legally sufficient but unfounded charges must be defended against in the recall process, not dismissed, and where some alleged open meetings violations are legally sufficient and others are not, severance is the proper remedy, not throwing out the recall petition. Id.

    view more
  • Arizona

    The Court has discretion to remove a public officer from office if it “determines that a public officer with intent to deprive the public of information violated any provision of [the OML].”  A.R.S. § 38-431.07(A).

    view more
  • Arkansas

    Negligent violation of the FOIA is a criminal offense, a Class C misdemeanor. Ark. Code Ann. § 25-19-104. Upon conviction, the defendant can be punished by a fine of no more than $500, a jail term of up to 30 days, or both. Ark. Code Ann. §§ 5-4-104, -201, -401. Criminal prosecutions for FOIA violations are relatively infrequent but do occur. For example, the mayor of Hartford was convicted in Greenwood Municipal Court for participating in discussions about matters other than personnel issues during an executive session of the city council. The municipal court ordered the mayor to read the FOIA and to attend a seminar on the act. See Amy Sherrill, Judge rules mayor ran afoul of FOI, Southwest Times Record, July 20, 2000. The FOIA formerly expressly allowed sentences of “appropriate public service or education, or both,” alternatively to fine or jail term, but that language was deleted with implementation of a legislative overhaul of criminal code provisions in 2005.

    view more
  • California

    Both Acts provide that it is a misdemeanor for a member of a state or legislative body to attend a meeting in violation of any provision of the Act, where the member intends to deprive the public of information to which the member knows or has reason to know the public is entitled. Cal. Gov't Code §§ 11130.7 (Bagley-Keene Act); 54959 (Brown Act).

    view more
  • Colorado

    Any actions in violation of the statute are declared invalid. Colo. Rev. Stat. § 24-6-402(8). In all such actions, the prevailing plaintiff recovers costs and reasonable attorney fees. If there is no violation, and if the court finds that the action was frivolous, vexatious, or groundless, then the court shall award costs and reasonable attorney fees to the other party. Colo. Rev. Stat. § 24-6-402(9).

    view more
  • Connecticut

    See Records Outline at V.D.

    view more
  • District of Columbia

    Not specifically addressed.

    view more
  • Georgia

    Officials who violate the Act may be subject to recall. See Steele v. Honea, 261 Ga. 644, 409 S.E.2d 652 (1991).

    view more
  • Hawaii

    Any person willfully violating any provision of the open meetings law is guilty of a misdemeanor and, upon conviction, can be summarily removed from the board unless otherwise provided by law. Haw. Rev. Stat. § 92-13.

    view more
  • Idaho

    Any action taken in a meeting which violates the Open Meeting Law, or which stems from deliberations or decision making in a meeting that violates the law, "shall be null and void." Idaho Code § 74-208(1).

    view more
  • Indiana

    The Open Door Law does not authorize other penalties for violations beyond Indiana Code Section 5-14-1.5-7.5.

    view more
  • Kentucky

    "Any person who knowingly attends a meeting of any public agency covered by [the Open Meetings Act] of which he is a member, not held in accordance with the provisions of [the Open Meetings Act] shall be punished by a fine of not more than one hundred dollars ($100)." Ky. Rev. Stat. 61.991(1).

    view more
  • Michigan

    A public official who intentionally violates the OMA may be personally liable in a civil action for actual and exemplary damages of up to $500, plus costs and attorney’s fees to the person or group of persons bringing the action. Mich. Comp. Laws Ann. § 15.273(1). An action for damages under this section may be joined with an action for injunctive or exemplary relief under Mich. Comp. Laws Ann. § 15.271. Mich. Comp. Laws Ann. § 15.272(3). A 1996 amendment to the OMA provides for penalties if the governing board of an institution of higher education covered under Mich. Comp. Laws Ann. § 15.268(j) violates the OMA with respect to the process of selecting a president any time after the recommendation of final candidates to the governing board. In this situation, the institution is responsible for the payment of a civil fine of "not more than $500,000." Mich. Comp. Laws Ann. § 15.273a. This fine is in addition to other remedies or penalties in the OMA. Mich. Comp. Laws Ann. § 15.273a also provides that "[t]o the extent possible, any payment of fines imposed under this section shall be paid from funds allocated by the institution . . . to pay for the travel and expenses of the members of the governing board."

    view more
  • Nevada

    A violation of the OML may result in a misdemeanor for a member of a public body who attends a meeting where action is taken in violation of the OML, with knowledge of the fact that the meeting is in violation thereof. NRS 241.040(1). A person who willfully fails or refuses to comply with a subpoena issued by the Attomey General investigating violations of the OML is guilty of a misdemeanor.

    view more
  • North Carolina

    The North Carolina Open Meetings Law makes no provision for the imposition of other penalties against public bodies or individual members of public bodies.

    view more
  • Ohio

    Invalidation of action taken in or resulting from a session closed in violation of the statute. Ohio Rev. Code § 121.22(H). Doran v. Northmont Bd. of Educ., 147 Ohio App. 3d 268, 770 N.E.2d 92, 2002-Ohio-386 (Ohio App. 2d Dist.) (refusing to invalidate action, viewing a board's failure to establish a notice rule as a mere technical violation).

    A member of a public body who knowingly violates an injunction to obey the statute may be removed from office by an action brought by a prosecuting authority or the attorney general. Ohio Rev. Code § 121.22(I)(4).

    view more
  • Oklahoma

    Upon conviction of a misdemeanor, a public official may be imprisoned up to one year in the county jail. See Hillary, supra.

    view more
  • Oregon

    Not specified.

    view more
  • South Dakota

    Criminal penalty of up to 30 days and/or up to $200 fine. SDCL §22-6-2.

    view more
  • Tennessee

    The Act mandates that the court retain jurisdiction over the case for one year and order the defendants to report in writing to the court semiannually of their compliance with the Act. T.C.A. § 8-44-106(d).

    view more
  • Texas

    In addition to fines and damages, possible jail time can result from violation of the Act. See Tex. Gov’t Code § 551.143 et seq.

    view more
  • Vermont

    A person who is a member of a public body who knowingly and intentionally violates the open meeting law may be convicted of a misdemeanor.  1 V.S.A. § 314(a).

    view more
  • West Virginia

    Prior to the 1999 amendments, the Act required that upon conviction of the misdemeanor offense of willfully and knowingly violating the provisions of the Open Meetings Act, a member of a public or governmental body may be imprisoned in the county jail for not more than ten days, in addition to the fine. W. Va. Code § 6-9A-6. That provision was removed from the Act in 1999.

    view more