2. Legislative bodies
All boards, bodies, and commissions, and all multimember governing bodies of departments, agencies, institutions, and instrumentalities of the legislative department of the state or its political subdivisions or municipalities are covered by the Alabama Open Meetings Act. It does not apply to legislative caucuses or coalitions. Ala. Code § 36-25A-2(4).
The former open meetings law was specifically applied to the following legislative bodies:
a. Alabama House and Senate. Ala. Constitution of 1901, art. IV, § 57.
b. Alabama House Committee. 165 Op. Att'y Gen. Ala. 23 (Nov. 17, 1976) ("legislative committee meetings . . . must be open . . . to the public"); 224 Op. Att'y Gen. Ala. 38 (Aug. 22, 1991).
c. Alabama Lieutenant Governor and Ex Officio President of the Alabama Senate. Birmingham News Co. v. Folsom, CV 88-1591 G (Cir. Ct. of Montgomery County, Ala., Nov. 30, 1989) (meetings with members of Alabama Senate).
d. Public corporation to which legislative functions are delegated. Birmingham News Co. v. Birmingham Racing Commission, CV 87-501-622 MC at 4 (Cir. Ct. of Jefferson County, Ala., Equity Div., Aug. 28, 1987) ("The Commission, having both legislative and judicial functions, falls within the scope of § 13A-14-2.").
Meetings of legislative bodies are covered by the Open Meetings Act, with the exception of the Alaska Legislature, which is expressly excepted from coverage of the OMA. AS 44.62.310(h)(3).
- The state legislature. Meetings of the state legislature are public only to the extent provided for in guidelines for meetings of legislative bodies adopted by the legislature in AS 24.60.037, discussed in more detail below, and even then, only to the extent that legislators choose to follow these guidelines.
Until the 1994 revisions to the Open Meetings Act, the statute covered meetings of the state legislature. The Alaska Supreme Court had ruled, however, that courts could not enforce the OMA against the Alaska State Legislature, despite the statutory language covering the legislature, because of the "separation of powers" between the three branches of state government provided for in the Alaska Constitution. Abood v. League of Women Voters and Anchorage Daily News, 743 P.2d 333 (Alaska 1987). The Court held that two parts of the constitution require this result: The provision giving the legislature the sole authority over its own rules of procedure, and the provision giving legislators immunity from having to answer to the courts for things they say or do in the course of legislative business. The Court also declined to find that Alaskans have an implied constitutional right of access to meetings of their legislators.
A constitutional amendment would be required to change the effect of the Abood ruling and impose enforceable "open meetings" requirements on state legislators. Since Alaska does not allow citizens to amend the constitution through ballot initiatives, such an amendment would require approval of two-thirds of both houses of the legislature, or a constitutional convention. After the court's Abood ruling, a coalition of press and public interest groups tried to get a legislative open meetings amendment on the ballot. These efforts were unsuccessful. However, pressure from the public and press finally led to enactment of ethics legislation in 1992 that included a requirement that the Alaska Legislature must generally comply with the OMA. AS 24.60.037. When the OMA was subsequently revised, in 1994, the legislature resolved the awkward discrepancy between the OMA's language, indicating the legislature was subject to the act, and the reality that this provision was unenforceable, by removing references in the OMA to coverage of the state legislature.
When the state legislature removed any reference to itself from the OMA, it correspondingly changed a provision in the section of the state statutes dealing with standards of conduct for the Alaska legislature. Specifically, it changed the language stating that "legislators shall abide by AS 44.62.310-44.62.312 (Open Meetings Law)" to state that legislators shall abide "by open meetings principles." The practical effect of this is simply to make the language of the statute conform with the reality of the Abood decision. It eliminated any argument that the statute governing legislative conduct, in Title 24, literally required compliance with the provisions of the OMA, as such, potentially including but not limited to the provision voiding actions taken in violation of the OMA. It also eliminated the argument that legislators were still literally or technically violating the OMA, even though the courts had said that there was no remedy for these violations.
The ethics law provisions dealing with legislative open meetings differ from the OMA in significant respects. First, the ethics law specifically allows closed caucuses, and "private, informal meetings or conversations between legislators in which political strategy is discussed." Second, the Select Committee on Legislative Ethics is charged with developing guidelines for the application of open meetings requirements to the legislature, and any complaint against a legislator for conduct found to be in compliance with these guidelines must be dismissed. Third, enforcement is strictly up to the Select Committee on Legislative Ethics, which includes both public and legislative members, and can conduct investigations and hearings regarding allegations of improper closed meetings pursuant to procedure spelled out in AS 26.60.170. The Committee makes recommendations to the full legislature if it finds a violation, and the legislature decides on the appropriate sanction by majority vote (except expulsion, which requires two thirds vote). AS 24.60.174
Requirements of openness contained in the open meetings guidelines specified in AS 24.60.037 and the guidelines adopted by the ethics committee pursuant to it are probably no more enforceable in a court—at least with respect to actually affecting whether proceedings are closed or open—than were the provisions of the OMA itself, for the reasons (the constitutional separation of powers doctrine) explained in Abood v. League of Women Voters. Any requirement of openness by legislators is dependent upon self-policing by the legislature (and public pressure).
For purposes of the legislative open meetings guidelines, a meeting occurs when a majority of the members of a legislative body is present and action, including voting, is taken or could be taken, or if a primary purpose of the meeting is the discussion of legislation or state policy. AS 24.60.037(b). The Uniform Rules of the Alaska State Legislature control the procedure for conducting open and executive sessions of a legislative body, ibid., and in general prevail in cases where there are conflicts between these guidelines and the Uniform Rules. AS 24.60.037(e). Legislators may meet in a closed caucus or in a private, informal meeting to discuss and deliberate on political strategy. Those meetings are exempt from the legislative open meetings guidelines. AS 24.60.037(c). For purposes of this subsection, "political strategy" includes organization of the houses, assignment of committee membership, scheduling of bills, vehicles for adoptions, house-senate relations, other procedural matters, caucus operations, meetings between majority and minority caucus leaders, meetings between majority and minority caucus leaders of both houses, meetings with the governor, deliberations with regard to political strategy, and discussions of issues in the context of political strategy. A "caucus" is defined as group of legislators who share a political philosophy, or have a common goal, and who organize as a group. AS 24.60.037(g)(1). A "meeting," as defined under these guidelines, does not include a gathering of members of a legislative body for primarily ministerial or social purposes; or forums where members of a legislative body have been invited to address a group on legislative issues or concerns. AS 24.60.037(g)(3).
A "legislative body," for purposes of these guidelines, includes the state senate and house of representatives, meeting separately or in joint session; a committee of the legislature, other than the Committee on Committees, but including a standing committee, special committee, joint committee, conference or free conference committee, committee of the whole, and permanent interim committee; a legislative commission, task force or other group established by statute or resolution; or a caucus of members of one or more of these bodies. "Legislative body" does not include, and therefore the legislature presumably intends to exempt from its open meetings guidelines, any committee or group of legislators considering only matters involving the organization of a committee or a house of the legislature, including selection of legislative officers; any committee or group of legislators and the governor or staff of the Office of the Governor; legislative leadership meetings; and officers of a caucus.
- Legislative Ethics Committee The Alaska Legislature has created a Select Committee on Legislative Ethics, which now includes public members. Interestingly, the legislature has specified that the Legislative Ethics Committee itself is subject to requirements concerning open proceedings, but whether these requirements are more enforceable than previous requirements that the legislature comply with the OMA is yet to be determined. That said, the legislature has provided that proceedings of the Ethics Committee relating to complaints before it are generally public after the committee determines that there is probable cause to believe that a violation has occurred, and confidential until then. AS 24.60.170(l, m). Documents presented at a hearing, and motions filed in connection with the hearing, are subject to inspection by the public. Deliberations of the committee following a hearing, deliberations on motions filed by the subject of a charge, and deliberations concerning appropriate sanctions are confidential. A more complete discussion of legislative ethics complaints, ethics committee proceedings, and related issues concerning confidentiality or availability of documents associated with legislative ethics complaints, is found in the Open Records section of this Guide, at section II.B.17.
All meetings of the committee before the determination of probable cause are closed to the public and to legislators who are not members of the committee. However, the committee may permit the subject of the complaint to attend a meeting other than the deliberations on probable cause. The confidentiality provisions of this subsection may be waived by the subject of the complaint. AS 24.60.170 (l, m).
If the committee determines after investigation that there is not probable cause to believe that the subject of the complaint has violated the ethics law, the committee shall dismiss the complaint or portions of it as to which there is no probable cause there was a violation. The committee must issue a decision explaining its dismissal. The committee's deliberations and vote on the dismissal order and decision are not open to the public or to the subject of the complaint. AS 24.60.170(f).
As noted, confidentiality requirements can be waived by the subject of a complaint. Among other things, committee proceedings conducted to make a preliminary decision about whether a complaint should be pursued or dismissed, and documents that are part of such proceedings, and a dismissal for various reasons that can be addressed in such preliminary proceedings, are confidential as provided unless the subject of the complaint waives confidentiality. AS 24.60.170(c).
Advisory opinion discussions and deliberations of the Legislative Ethics Committee are confidential, unless the requester and anyone else named in the request whom this chapter covers waives confidentiality. The committee's final vote on the advisory opinion is a public record. AS 24.60.160(b).
c. Other legislative bodies. The Supreme Court ruling in the Abood case applies to and affects only meetings of the state legislature, because of its fundamental role in the constitutional framework of the government. The OMA otherwise remains completely enforceable, and specifically applies to other legislative bodies such as borough and municipal assemblies and school boards.
The OML generally applies to the Legislature. A.R.S. § 38-431(6). But the OML does not apply to any “political caucus”—i.e., the consideration of party policy with respect to a particular legislative issue without reaching a collective decision, promise or commitment. A.R.S. § 38-431.08(A)(1). 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).
Conference committees of the legislature must be open to the public but need not follow the notice and minute requirements of the OML. A.R.S. § 38-431.08(A)(2).
The Attorney General has indicated that the General Assembly and its committees are subject to the FOIA. Ark. Op. Att’y Gen. No. 84-091. However, the Constitution expressly provides that “sessions of each house and of committees of the whole shall be open, unless when the business is such as ought to be kept secret.” Ark. Const. art. V, § 13. This provision is a broad exception to the FOIA, but applies only to both houses and to “committees of the whole” and thus apparently does not reach other legislative committees. See Ark. Op. Att’y Gen. No. 84-91. All meetings of the Legislative Council, a committee created by statute, “shall be open to the public, except in those instances in which the Legislative Council feels that it is necessary to go into executive session.” Ark. Code Ann. § 10-3-305(a).
Other legislative bodies, such as a city council and county quorum court, are clearly subject to the open meeting requirement. E.g., Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968) (city council).
State Legislature: Neither the Bagley-Keene Act nor the Brown Act apply to bodies of the State Legislature. However, separate open meeting laws for both houses of the California State Legislature can be found at California Government Code Sections 9027-9031. The law requires that meetings of either house of the Legislature or any of their committees be open and public. Cal. Gov't Code § 9027. Whenever a meeting is required to be open, notice must be given in accordance with the Joint Rules of the Assembly and the Senate. Cal. Gov't Code § 9028. Closed sessions are permissible for the same reasons as set forth in the Bagley-Keene and Brown Acts, and also may be held for party caucuses and to consider matters affecting the safety and security of members of the Legislature and their employees. Cal. Gov't Code §§ 9029, 9029.5.
Local bodies: The Brown Act applies to the legislative body of every local agency, notwithstanding a conflicting state law. Cal. Gov't Code § 54958. A "legislative body" is:
(1) the governing body of any local agency or any other local body created by state or federal statute (Cal. Gov’t Code § 54952(a)),
(2) a commission, committee, board or other body of a local agency, whether permanent or temporary, decision-making or advisory, created by charter, ordinance, resolution or formal action of a legislative body (Cal. Gov’t Code § 54952(b)),
(3) a board, commission, committee or other multimember body that governs a private corporation, limited liability company, or other entity that is either created by the legislative body to exercise authority or that receives funds from a local agency and includes as a full voting member a member of the legislative body of the local agency (Cal. Gov’t Code § 54952(c)); or,
(4) the lessee of any hospital that was first leased after January 1, 1994 pursuant to Health and Safety Code Section 32121, which exercises any material authority of a legislative body of a local agency. Cal. Gov't Code § 54952 (d).
“A commission, committee, board or other body of a local agency is ‘created by’ charter, ordinance, resolution or other formal action of the legislative body if the legislative body ‘ ‘played a role’ in bringing . . . ‘into existence’ the commission, committee, board, or other body.” Californians Aware v. Joint Labor/Mgmt. Benefits Comm., 200 Cal. App. 4th 972, 978, 133 Cal. Rptr. 3d 766 (2011) (quoting Epstein v. Hollywood Entertainment Dist. II Bus. Improvement Dist., 87 Cal. App. 4th 862, 864, 104 Cal. Rptr. 2d 857 (2001) (internal citations omitted)). For example, in Epstein, the court held that the Hollywood Entertainment Property Owners Association violated the state's open meetings laws by not holding its meetings in public and failing to post an agenda 72 hours in advance. The court determined that the nonprofit organization was a "legislative body" subject to the terms of the Brown Act. A 1996 city ordinance authorized the association to govern taxpayer-funded programs within business districts and this caused the association to fall under the Brown Act because the association exercised governmental authority otherwise controlled by the city. See Epstein, 87 Cal. App. 4th at 870-71.
Conversely, in Californians Aware a school district’s joint labor/management benefits committee, established as part of a collective bargaining process, was held not to be a legislative body under the Brown Act because the committee was brought into existence through a collective bargaining agreement, not through actions of the district. Californians Aware, 200 Cal. App. 4th at 980-81.
Colorado Constitution Article V, § 14 provides that the sessions of both houses of the legislature and their committees "shall be open, unless when the business is such as ought to be kept secret."
a. The Sunshine Law applies not only to the General Assembly, but also to meetings of any board, committee, or other policy-making or rule-making body of the General Assembly. Colo. Rev. Stat. § 24-6-402(1)(d).
b. This includes legislative caucus meetings at which public business is discussed. Cole v. State, 673 P.2d 345 (Colo. 1983).
c. Unless the legislature has expressly designated business which "ought to be kept secret" pursuant to § 14 of Article V of the state Constitution, it is presumed that all legislative and committee meetings are subject to the Open Meetings Act. Cole v. State, supra.
d. However, the Sunshine Law was not intended to interfere with the abilities of legislative bodies to perform their duties in a reasonable manner, and thus strict compliance with all requirements, such as giving notice of which matters will be considered at a particular meeting, may not be required. Benson v. McCormick, 195 Colo. 381, 578 P.2d 651 (1978).
The General Assembly is not subject to the Act nor are any of the caucuses thereof, or any committee, subcommittee, ad-hoc committee, special committee or temporary committee thereof. 29 Del. C. § 10002(c); News-Journal Co. v. Boulden, 1978 WL 22024 (Del. Ch. May 24, 1978). However, other legislative bodies are subject to the Act, including the Wilmington City Council. News-Journal Co. v. McLaughlin, 377 A.2d 358 (Del. Ch. 1977).
In 1982 a lawsuit was filed in circuit court on behalf of 16 Florida newspapers against the House Speaker and the Senate President seeking a declaratory judgment as to whether the public may be excluded from legislative committee meetings. Petitioners claimed that private legislative meetings violate the federal and state constitutions, and state laws (including section 286.011), and the Legislature’s own rules. The order on the defendants’ motion to dismiss stated that the plaintiffs were entitled to a ruling under Chapter 86 as to the allegations of the complaint relating to the First Amendment of the United States Constitution, the corresponding provisions of the Florida Constitution, and Fla. Stat § 11.142.; however, the remaining provisions of law cited by the plaintiff, including section 286.011, were not applicable under the circumstances alleged in the complaint. See Miami Herald Publ’g Co. v. Moffitt, Case No. 82-84 (2d Cir. Leon Co., filed February 28, 1983).
The case was ultimately decided in Moffitt v. Willis, 459 So. 2d 1018 (Fla. 1984). In Moffitt, the Supreme Court granted the Legislative leaders’ petition to dismiss the civil action pending in the lower court on the basis that the circuit court lacked jurisdiction over the subject matter under the constitutional doctrine of separation of powers. The court held that the circuit court does not have jurisdiction to determine and declare the meaning and the application of the rules and procedures of the Senate and House of Representatives, which, the court noted, was a purely legislative prerogative. Thus, the Supreme Court did not address the merits of the case and did not directly reach the question of the applicability of section 286.011 to the Legislature.
However, in 1993, the Legislature amended the State Constitution expanding public records and meeting law to the Legislature and stating that “meetings of the legislature shall be open and noticed as provided in Article III, Section 4(e), except with respect to meetings exempted pursuant to this section or specifically closed by this Constitution.” Art. I, sec. 24(b), Fla. Const. (1993).
The Act does not to apply to the Georgia General Assembly or its committees. Coggin v. Davey, 233 Ga. 407, 211 S.E.2d 708 (1975); Institute for Justice v. Reilly, ___ Ga. App. ___, 830 S.E.2d 793, 2019 WL 2754557 (2019). See Fathers Are Parents Too, Inc. v. Hunstein, 202 Ga. App. 716, 717, 415 S.E.2d 322, 322 (1992) (explaining that “[t]he Court reasoned that the Act was not intended to apply to the legislative branch since the Legislature had historically exercised the authority to adopt its own internal operating procedures, and had subsequently adopted the procedures at issue inconsistent with the Act”). The Act aside, the Georgia Constitution provides that legislative sessions and all standing committee meetings shall be open to the public. Ga. Const., Art. 3, § 4, ¶ 11. But the Constitution permits either house by rule to provide for exceptions and each has done so. Id.
The legislative branches are not expressly included in the definition of “public agency” found at Idaho Code § 74-202(4). However, the law specifically provides that all “standing, special or select committees” meetings of either house “shall be open to the public at all times, except in extraordinary circumstances as provided specifically in the rules of procedure in either house.” Idaho Code § 74-207. This statutory provision is in direct conflict with internal rules of the respective bodies of the legislature that allow such meetings to be closed in the discretion of the committee members. In practice, such meetings (with the exception of political party caucus meetings) are nearly always open. In 2004, the Idaho Press Club brought a constitutional challenge to the legislature's use of closed committee meetings, relying on Article III, § 12 of the Idaho Constitution. In Idaho Press Club, Inc. v. State Legislature of the State of Idaho, 142 Idaho 640, 132 P.3d 397 (2006), the Idaho Supreme Court held that the legislature’s use of closed committee meetings did not violate the Idaho Constitution.
The Act specifically covers legislative bodies. See 5 ILCS 120/1.02. However, the Illinois General Assembly and its committees are not covered by the Act, but are subject to the state constitutional requirement of open meetings. See Ill. Const. art. IV, § 5(c)) (providing that sessions of each house of Legislature, as well as committees, joint committees and legislative commissions, are open to the public; sessions and committee meetings of a house may be closed if two-thirds of members elected to that house "determine that the public interest so requires," and meetings of joint committees and legislative commissions may be closed if two-thirds of members elected to each house "determine that the public interest so requires," presumably by vote); see also Ill. Const. art. IV, § 7 (a) and (b) (requiring "reasonable public notice of meetings, including a statement of subjects to be considered" by committees of each house, joint committees and legislative commissions, as well as the keeping of a journal of house proceedings and a transcript of debates, with the journal published and the transcript open to the public).
Unless covered by a specific exemption, all meetings of legislative bodies are subject to the Act. Ind. Code § 5-14-3-2(a). However, the Indiana Supreme Court has held that separation of powers considerations prevent the courts from enforcing the access statutes against the Indiana General Assembly. State ex rel. Masariu v. Marion Superior Court No.1, 621 N.E.2d 1097,1098 (Ind. 1993). Also, although the Open Door Law’s definition of a “public agency” applies to all entities that exercise “a portion of the . . . legislative power of the state,” the statute explicitly exempts the General Assembly from its public notice of meetings requirements. Ind. Code § 5-14-1.5-5(g).
"Every state or local legislative board, commission and committee" is covered. Ky. Rev. Stat. 61.805(2).
The General Assembly is a public agency for purposes of the Open Meetings Act. See 93-OMD-63 and 94-OMD-23. Committees of the General Assembly, however, other than standing committees, are exempt from the Act. Ky. Rev. Stat. 61.810(1)(i).
Covered. La. Rev. Stat. Ann. § 42:13(2): “‘Public body’ means village, town, and city governing authorities; parish governing authorities. . . including any committee or subcommittee of any of these bodies enumerated in this paragraph.” The state legislature itself is governed by somewhat different provisions, La. Rev. Stat. Ann. § 42:18, 42:21, and is exempt from some provisions. La. Rev. Stat. Ann. § 42:19.
The governing board or body of any authority established by the legislature to serve a public purpose in the commonwealth (or any part of the commonwealth) must comply with the Open Meeting Law. In all other respects, however, the law does not apply to the state legislature (formally called the “general court”), nor does it apply to the legislature’s committees and recess commissions. G.L. c. 30A, § 18 (definition of "public body"). Municipal town meetings are not subject to the Open Meeting Law, nor are the warrants prepared for such town meetings. G.L. c. 30A, § 18(e) .
The OMA covers state and local legislative bodies. A joint legislative committee is a "public body" within the meaning of the OMA. 1977-78 Op. Att'y Gen. 451 (1978). Further, any state or local body that is empowered by resolution to exercise governmental or proprietary authority is a public body under the OMA. See Jackson v. E. Mich. Univ. Found., 215 Mich. App. 240, 246-47, 544 N.W.2d 737 (1996) (university foundation which was empowered to manage university's endowment was a public body); Jude v. Heselschwerdt, 228 Mich. App. 667, 578 N.W.2d 704 (1998) (board of review appointed to review county drain commissioner's apportionment of benefits subject to OMA); Morrison v. City of E. Lansing, 255 Mich. App. 505, 660 N.W.2d 395 (2003) (committee appointed by city council to be in charge of development of community center is public body subject to OMA); Davis v. City of Detroit Fin. Review Team, 296 Mich. App 568, 821 N.W.2d 896 (2012) (financial review team appointed for city not a public body subject to OMA, since it did not involve independent decision-making and could only make recommendations, not act on them).
The state legislature does not fall within the provisions of the Open Meeting Law. However, legislative bodies of any school district, unorganized territory, county, statutory or home rule city, town, or other public body are subject to the provisions of the Open Meeting Law. Minn. Stat. § 13D.01, subd. 1(b).
In 1990 the legislature passed a law, separate from the Open Meeting Law, requiring that all legislative meetings be open to the public. The law applies to House and Senate floor sessions, and to meetings of committees, subcommittees, conference committees and legislative commissions. For purposes of this law, a meeting occurs when a quorum is present and action is taken regarding a matter within the jurisdiction of the group. Each house of the legislature must adopt rules to implement these requirements. Rules are passed in each session and accessible at https://www.senate.mn/rules/index.php?ls=#rulesofthesenate and https://www.house.leg.state.mn.us/cco/rules/permrule/permrule.asp.
Enforcement is limited, however. Minn. Stat. § 3.055, subd. 2 expressly provides: “The house of representatives and the senate shall adopt rules to implement this section. Remedies provided by rules of the house of representatives and senate are exclusive. No court or administrative agency has jurisdiction to enforce, enjoin, penalize, award damages, or otherwise act upon a violation or alleged violation of this section, to invalidate any provision of law because of a violation of this section, or to otherwise interpret this section.” For example, the 2017 Senate Rules (12.2) provide that complaints about violations of open meeting provisions must be made in writing to the Chair of the Committee on Rules and Administration, and the complaint cannot be further disclosed (Rule 12.2); if the Subcommittee on Ethical Conduct by a vote of three of its four members finds probable cause to believe that improper conduct has occurred, further proceedings on the complaint are open to the public (Rule 55.5).
Standing, interim, or special committees of the legislature are covered, but not subcommittees or legislative conference committees. § 25-41-3(a); Op. Att'y Gen. Oct. 17, 1989 to Rep. Jim Simpson (legislature may not by its own rules negate the applicability of the Act to legislative meetings).
Article V, § 10(3) of the Montana Constitution declares: "The sessions of the legislature and the committee of the whole, all committee meetings, and all hearings shall be open to the public." Indeed, there is no "privacy exception" to this rather broad constitutional provision. Arguably, then, legislative deliberative bodies may not, in any circumstance, close their meetings.
The Nebraska Legislature and its committees are not expressly subject to the Open Meetings Act, although one writer has opined to the contrary. See Note, Nebraska Unicameral Rule 3, Section 15: To Whom Must the Door Be Open? 64 Neb. L. Rev. 282 (1985). Neb. Const. Art. III, §11, provides "the doors of the Legislature and of Committees of the Whole, shall be open, unless when the business shall be such as ought to be kept secret." Rule 3, §16, Rules of Nebraska Unicameral Legislature (2018), provides that executive sessions of legislative committees may be closed to general public, but open to "members of the news media."
The Legislature of the State of Nevada is excluded from the OML as are Legislative committees. NRS 241.016(2)(a). Article 4, section 15 of the Nevada Constitution provides that the “doors of each House shall be kept open during its session, and neither shall, without the consent of the other, adjourn for more than three days nor to any other place than that in which they may be holding their sessions. The meetings of all legislative committees must be open to the public, except meetings held to consider the character, alleged misconduct, professional competence, or physical or mental health of a person.”
The Statute applies to the Legislature. RSA 91-A:1-a,VI. However, its definition of “meeting” excludes “[a] caucus consisting of elected members of a public body of the same political party who were elected on a partisan basis at a state general election or elected on a partisan basis by a town or city which has adopted a partisan ballot system pursuant to RSA 669:12 or RSA 44:2.”
The Legislature exempted itself from significant portions of the critical work of certain legislative committees, including conference committees, any matters pertaining to personnel matters, matters "adjudicatory in nature" or any bill, resolution, or other legislative matter not yet presented to either House of the Legislature. NMSA 1978 § 10-15-2(A), (B). The New Mexico Press Association and the New Mexico Foundation for Open Government attempts to close the loophole have failed in the face of the legislative refrain that open government is good for everyone except the Legislature.
State and local legislative bodies, including their committees and subcommittees, are covered by the OML. See, e.g., Orange Cty. Publ’ns, Div. of Ottaway Newspapers, Inc. v. Council of Newburgh, 60 A.D.2d 409, 401 N.Y.S.2d 84 (2d Dep’t 1978), aff’d, 45 N.Y.2d 947, 383 N.E.2d 1157, 411 N.Y.S.2d 564 (1978) (city council); Orange Cty. Publications v. Cty. of Orange, No. 5686/78 (Sup. Ct., Orange Cty., Oct. 26, 1983) (county legislative subcommittee).
However, the OML does not extend to “deliberations of political committees, conferences, and caucuses.” N.Y. Pub. Off. Law § 108(2)(a) (McKinney 1988). This is defined to mean “a private meeting of members of the senate or assembly of the state of New York, or of the legislative body of a county, city, town or village, who are members or adherents of the same political party, without regard to (i) the subject matter under discussion, including discussions of public business, (ii) the majority or minority status of such political committees, conferences and caucuses or (iii) whether such political committees, conferences and caucuses invite staff or guests to participate in their deliberations.” N.Y. Pub. Off. Law § 108(2)(b) (McKinney 1988). Compare Urban Justice Center v. Pataki, 38 A.D.3d 20, 828 N.Y.S.2d 12 (1st Dep’t 2006) (single part caucus exempt from OML), with Warren v. Giambra, 12 Misc.3d 650, 813 N.Y.S.2d 892 (Sup. Ct. 2006) (presence of the County Executive meant a meeting of the Democratic majority was not an exempt caucus under OML).
A slightly modified version of the Open Meetings Law applies to the North Carolina General Assembly generally, including its committees, subcommittees and commissions. The variation from the standard provisions is that the General Assembly has different notice provisions. G.S. § 143-318.14A. The Legislative Ethics Committee, conference committees, and a caucus by members of the General Assembly are not subject to the Open Meetings Law. However, no member of the General Assembly shall participate in a caucus which is called for the purpose of evading or subverting this Article. G.S. § 143-318.18.
The state legislature is not subject to the statute. Ohio Rev. Code § 111.15(A)(2). The state legislature is, however, subject to a state constitutional provision requiring that the "proceedings of both Houses shall be public, except in cases which, in the opinion of two-thirds of those present, require secrecy." Ohio Const. Art. II, § 13.
Also, a separate statute requires prearranged discussions of public business of state legislative committees to be open to the public. The statute does not open the meetings of legislative caucuses, which are all members of either house of the general assembly who are members of the same political party. Ohio Rev. Code § 101.15.
The statute applies to legislative bodies of local governments, specifically "any legislative authority . . . of any county, township, municipal corporation, school district, or other political subdivision or local public institution," and any committee or subcommittee of any local legislative authority. Ohio Rev. Code § 121.22(B)(1)(a),(b).
The state legislature is exempt from the definition of public body for purposes of the act. 25 O.S. § 304.1. Open meetings of the legislature are conducted in accordance with rules adopted by each house thereof. 25 O.S. § 309. County and local legislative and governing bodies are covered by the act. 25 O.S. § 304.1.
All local legislative bodies are covered by the Public Meetings Law. The law’s applicability to activities of the state Legislative Body is not clear. Or. Const. Art IV, § 14 requires the Legislature’s deliberations to be “open.” The Attorney General has stated that this requirement does not apply to caucuses or closed sessions where permitted under common law or relating to proceedings concerning political party organizational activities.
The statute also specifically covers the following meetings of the General Assembly: meetings of committees where bills are considered; all hearings where testimony is taken; and all sessions of the Senate and House of Representatives. 65 Pa. C.S.A. § 712. Caucuses and ethics committee meetings are excluded. Id.
Several cases have explained the extent to which the law applies to legislative bodies. In Pa. Legislative Correspondents’ Ass’n v. Senate of Pa., 537 A.2d 96, 368 (Pa. Commw. Ct. 1988), aff’d, 551 A.2d 211 (Pa. 1988), a group of journalists alleged that the Pennsylvania legislature violated the Sunshine Act when a group of legislators met informally to discuss the state budget before a House-Senate conference committee was appointed to reach agreement on a budget bill. The court held that the complaint did not state a cause of action under the Act: “Unofficial gatherings of unnamed legislators for whatever purpose do not constitute ‘meetings’ subject to the provisions of the Sunshine Act.” Id. at 372.
In League of Women Voters v. Commonwealth, 683 A.2d 685 (Pa. Commw. Ct. 1996) the court held that a conference committee’s preparation of an extensive report on the 1996-97 General Appropriations Act prior to first public meeting of the committee was not a violation of Sunshine Act, since: 1) as a general matter, preparation of reports are not covered by the Sunshine Act; and 2) any violation was cured by the committee’s open meeting on the issue. In addition, the court held that even if a violation was stated, it would not enjoin the GAA’s operation because of the potential harm that an injunction would bring to the Commonwealth’s citizens.
Finally, in Pa. AFL-CIO v. Commonwealth Rule 10.2.1.f., 683 A.2d 691 (Pa. Commw. Ct. 1996), a group of plaintiffs moved to enjoin the newly enacted Workers’ Compensation Act, arguing that the procedure used by the House Rules Committee to report the bill to the floor violated the Sunshine Act. Specifically, the plaintiffs alleged that the Rules Committee violated the statute by convening a meeting prior to its scheduled time, and prior to the arrival of members of the minority party, the public, and the media. Id. The court held that these allegations were insufficient to establish a Sunshine Act violation, as there was no allegation that improper notice of the meeting was given and no charge that the meeting was not “open.” Id.
The legislature is subject to the act and specific provisions apply for meetings of committees and subcommittees. S.C. Code Ann. § 30-4-80(b). The General Assembly may enter into executive session as authorized by the state constitution and the rules of either house. S.C. Code Ann. § 30-3-70(e).
SDCL §1-25-1, arguably, is directed toward the executive branch. It does not specifically cover the state legislature or its committees. (S.D. Const. Art. III, §15, requires open legislative sessions, unless "business is such as ought to be kept secret." A proposal to eliminate the secrecy clause and to extend the requirement of openness to legislative committee and commission meetings has twice been rejected.)
Section 551.003 specifically provides that "the legislature is exercising its powers to adopt rules to prohibit secret meetings of the legislature, committees of the legislature, and other bodies associated with the legislature, except as specifically permitted in the constitution." In In re The Texas Senate, 36 S.W.3d 119, 120 (Tex. 2000), the Texas Supreme Court stated that the Act "clearly covers the Committee of the Whole Senate." Furthermore, a governmental body under the Act includes a committee within the executive or legislative branch of a state government that is directed by one or more elected or appointed members. Op. Tex. Att’y Gen. No. LO 97-058 (1997). A legislative body can violate the Act when it "deliberates through a series of closed meetings of members of less than a quorum." Op. Tex. Att’y Gen. No. DM-95 (1992). See also Hitt v. Mabry, 687 S.W.2d 791, 796 (Tex. App.—San Antonio 1985, no writ) (the court upheld an injunction restraining the San Antonio Independent School District board of trustees from arriving at a decision affecting the District by way of private, informal telephone polls or conferences of the board members.)
The OPMA does not apply to the state legislature. RCW 42.30.020(1)(a). However, it is an open question as to whether the Act applies to caucuses and committees of the legislature. Thus far, the issue has been avoided because the legislative caucuses and committees have adopted open meeting rules that are as broad or more broad than OPMA.
The Act applies to all legislative bodies, including the State Legislature or a city council. W. Va. Code § 6-9A-2(4). A 1993 amendment to the statute provides that "a governing body of the Legislature is any standing, select or special committee, except the commission on special investigations, as determined by the rules of the respective houses of the legislature." Id.
"This subchapter shall apply to all meetings of the Senate and Assembly and the committees, subcommittees, and other subunits thereof, except" scheduling, other meetings exempted by legislative rule and caucuses. Wis. Stat. § 19.87.
Despite this explicit statement of legislative intent, however, the first attempt to enforce the open meetings law against a joint legislative committee failed, more than 35 years after the open meetings law was adopted. The Wisconsin Supreme Court ruled in State ex rel. Ozanne v. Fitzgerald, 2011 WI 43, 334 Wis. 2d 70, 798 N.W.2d 436, that separation of powers principles preclude judicial review of the legislature’s compliance with its own rules of procedure concerning passage of legislation, whether those rules are internal or statutory. To do so, a sharply divided court ruled, would invade the constitutional power of the legislature to declare what shall become law. Barring an amendment of the state constitution, therefore, the open meetings law cannot be applied to legislative bodies, though they tend to comply with the law.