5. Nongovernmental groups whose members include governmental officials

The Alabama Open Meetings Act does apply to all corporations and other instrumentalities whose governing boards are comprised of a majority of members who are appointed or elected by the state or its political subdivisions. See, e.g., Stone v. Consol. Publ’g Co., 404 So. 2d 678 (Ala. 1981) (public records case; personal relations corporation that included officers of state university deemed alter ego of state university).

The Alabama Open Meetings Act specifically excludes from coverage "[v]oluntary membership associations comprised of public employees, counties, municipalities, or their instrumentalities which have not been delegated any legislative or executive functions by the Legislature or Governor." Ala. Code § 36-25A-2(4).

The OMA does not expressly address the question of non-governmental groups that include public officials, and there is no Alaska case law on the subject. The mere fact that a non-governmental group includes members or participants who are government officials cannot be enough to transform that group into a body covered by the OMA. This is obvious when you consider such groups as Kiwanis, League of Women Voters, athletic booster organizations, and so forth. But the rationale applies equally when the non-governmental groups may be formed or operating to discuss or conduct business very much related to public affairs or public business. The attendance of a government employee or official, even in an official capacity, does not transform this otherwise private meeting. Note, however, that the result may be different where the group is in fact operating as a committee or subcommittee of a government body, or where the governmental nature of the group is the dominant characteristic and the attendance of private individuals is simply incidental to the meeting of the government body.

The OML may apply depending on a variety of factors such as (a) the group's function or (b) who appointed the members and how they were appointed.

Shortly after the FOIA’s passage, the Attorney General suggested that the act applies to a private entity whose board of directors includes government officials. Ark. Op. Att’y Gen. (April 16, 1971). That position is no longer tenable in light of the Supreme Court’s holding that only the direct receipt of public funds by a private organization triggers the act. Sebastian Cnty. Chapter of Am. Red Cross v. Weatherford, 311 Ark. 656, 846 S.W.2d 641 (1993).

Any board, commission, committee or similar multimember body is subject to the Bagley-Keene Act if: (1) it receives funds provided by a state body, and (2) it includes a member of a state body serving in his or her official capacity. Cal. Gov't Code § 11121(d).

A body that governs a private corporation or entity is subject to the Brown Act if: (1) it is created by the elected legislative body in order to exercise authority that may lawfully be delegated by the body, or (2) it receives funds from a local agency and it includes a member of the legislative body of the local agency appointed to that governing body as a full voting member by the legislative body of the local agency. Cal. Gov't Code § 54952(c). See, e.g., Epstein v. Hollywood Entertainment Dist. II Bus. Improvement Dist., 87 Cal. App. 4th 862, 869-73, 104 Cal. Rptr. 2d 857 (2001); 85 Ops. Cal. Att'y. Gen. 55 (2002) (private, nonprofit corporation that received funds from school district and had on its corporate board one of district's trustees with full voting rights, and was created by the City, which lawfully delegated authority to it to operate an educational access channel, was subject to CPRA and opening meetings laws).

No body that governs a private corporation, limited liability company, or other entity that receives funds from a local agency and, as of February 9, 1996, has a member of the legislative body of the local agency as a full voting member can defeat the meeting requirements by changing the voting status of the full voting member to a nonvoting member. Cal. Gov’t Code § 54952(c)(2).

Under the 1991 amendments, any public or private entity to which the state or a political subdivision of the state, or an official thereof, has delegated a governmental decision-making function is subject to the Sunshine Law. Colo. Rev. Stat. §§ 24-6-402(1)(a) and 24-6-402(1)(d). Persons on the administrative staff of the state or local public body, however, are exempted.
If a board or body does not meet the above definition, its meetings are not open to the general public in Colorado.

There are no reported court decisions addressing whether a nongovernmental body with members including governmental officials would be subject to FOIA. But see Conn. Gen. Stat. §1-202 (“The FOIC, on petition by a public agency contemplating creation of a committee composed entirely of individuals who are not members of the agency, may exempt the committee from compliance with FOIA.”).

Nongovernmental groups whose members include government officials are not covered by the Act simply because governmental officials are members. Nongovernmental groups may qualify if they meet the conditions set forth above. See Del. Op. Att’y Gen., No. 89-I010 (May 11, 1989) (advisory group chosen by governor to advise him on selection of prison site, consisting of members of governor’s staff, city employee and county official, does not constitute a “public body” because no public funds were expended, notwithstanding the Governor, a public official, charged the committee to advise him). See also Del. Op. Att’y Gen., No. 99-ib15 (Dec. 9, 1999) (group consisting of members of the City Planning Department, the City Parking Committee and private consultants does not constitute a “public body” under the Act). The University of Delaware and Delaware State University are not included except that the Boards of Trustees of the Universities shall each be a “public body,” and each meeting of each full Board of Trustees shall be a “meeting.” 29 Del. C. § 10002(l).

Not specifically addressed.

Meetings of non-governmental groups whose members include public officials generally may not be subject to the requirements of the Sunshine Act. Op. Att’y Gen. Fla. 76-194 (1976) (ex-officio membership of single county commissioner and city councilman on board of directors of non-governmental organization which receives public funds does not require board meetings to be open; however, use of such meetings as a device to avoid public meetings requirements, such as the discussion of matters which will be brought before a public board or commission may trigger application of the Sunshine Act).  See Op. Att’y Gen. Fla. 83-70 (1983) (city council member sitting on board of trustee of a non-profit corporation must excuse himself from meetings of the board or hold the board meetings in the sunshine in instances when the board discusses some matter which would be brought before the city council for action.)

Meetings of groups serving a governmental purpose are subject to the Act's requirements and government officials’ membership in the group or attendance at its meetings may be indicative of that purpose. See, e.g., Jersawitz v. Fortson, 213 Ga. App. 796, 446 S.E.2d 206 (1994) (noting such membership and attendance and concluding that “the statute should not be so narrowly construed to require that a committee consist only of members of [an agency] to come within the purview of the Act”).

Probably not. The Sunshine Law's definition of a "board," Haw. Rev. Stat. § 92-2, probably does not encompass such non-governmental groups unless by borrowing the totality of circumstances test from the UIPA one can show that they have been set up to supervise, control, exercise jurisdiction, or advise government.

One such situation might occur in student organizations advised or including as members faculty members. For instance, in response to an inquiry apparently initiated by the Editor-In-Chief of Ka Leo O Hawaii, the student-run newspaper at the University of Hawaii's Manoa Campus, the Attorney General informed University Regents and Administrators that "ASUH (Associated Students of the University of Hawaii) and other student organizations do not fall within the definition [of a board] and thus are not subject to the requirements imposed by the State Sunshine Law." Att'y Gen. Op. No. 85-18 (Sept. 6, 1985). Thus, the newspaper could not demand access to meetings that student organizations might otherwise elect to close to the public.

The question of whether nongovernmental bodies whose members include governmental officials are subject to the provisions of the Idaho Open Meeting Law has not been addressed by any appellate court in Idaho.

Depending on the function of the non-governmental group, membership of a government official in such a group could make it an “advisory” or “subsidiary” body subject to the provisions of the Act.

The mere fact that a governmental official is a member of a non-governmental group does not bring the group within the ambit of the Open Door Law. See Ind. Code § 5-14-1.5-2(a). The group would have to exercise executive, administrative or legislative power of the state or its political subdivisions, be subject to audit by the State Board of Accounts or budget review by state or local governments, be a building corporation which issues bonds to construct public facilities, or be an advisory commission created to advise the governing body of a public agency in order to be covered by the Act. Ind. Code § 5-14-1.5-2(a).

The statute has no application to non-governmental bodies or groups.

Those receiving or expending public funds and supported in whole or in part by public funds are subject to KOMA, K.S.A. 75-4318(a); Kan. Att’y Gen. Ops. 1980-201 (Garden City/Finney County Alcohol Fund Advisory Committee is subject to KOMA) and 1991-150. A political party precinct committee is not an administrative or legislative agency of state or local government and is not subordinate to such a body. Such a committee is not subject to KOMA. Kan. Att’y Gen. Op. 1994-157.

Boards composed of members of different governmental bodies are subject to KOMA if they are appointed by official action (Kan. Att’y Gen. Op. 86-48) or if the majority of a public body is present.  See Kan. Att’y Gen. Ops. 84-103 and 91-150.

K.S.A. 77-523(f) specifically provides that a hearing under the Kansas Administrative Procedure Act is not a meeting for the purposes of the Kansas Open Meetings Act. Kan. Att’y Gen. Op. 2014-07.

A nongovernmental organization may be covered by the Open Meetings Act if "the majority of its governing body" is appointed by a public agency and/or a state or local officers. Ky. Rev. Stat. 61.805(2)(f).

Such groups will be covered if they fall within the definition of a “public body” in La. Rev. Stat. Ann § 42:13. Louisiana High Sch. Athletics Ass'n, Inc. v. State, 107 So.3d 583, 607 (La. 2013).

The Act does not apply to nongovernmental groups just because a member is a governmental official, but membership (i.e., governmental involvement or control) is a factor that may be considered in conjunction with other factors to determine whether a body is subject to the Act.  See Moore v. Abbott, 2008 ME 100, ¶ 10, 952 A.2d 980; Dow v. Caribou Chamber of Commerce & Indus., 2005 ME 113, ¶ 12, 884 A.2d 667, 670; Town of Burlington v. Hospital Administrative District No. 1, 2001 ME 59, ¶¶ 16-19, 769 A.2d 857.

If the entity is a public body as defined by the Act, it is subject to the provisions of the Act, unless it is exercising an administrative, judicial or quasi-judicial function. § 3-103(a). Such bodies include any multimember board, commission, or committee, appointed by the Governor or the chief executive authority of a political subdivision of the State, if the entity includes in its membership at least two individuals not employed by the State or political subdivision of the State. § 3-101(h)(2). Additionally, any multimember boards, commissions or committees appointed by an entity in the Executive Branch of the State government, with its members appointed by the Governor, or by an official who is subject to the policy direction of such entity, is also a public body, so long as its members include at least two individuals who are not members of the appointing entity or employed by the State.  § 3-301(h)(2)(ii). But see Compliance Board Opinion 00-9 27:22 Md. Reg. 2048 (Oct. 10, 2000) (ad hoc assemblage of state and local officials who discuss proposed development not subject to the Act absent legal enactment authorizing such a committee).

These may not be covered, although the issue may turn on membership and the powers of a particular body. See Dist. Att’y for N. Dist. v. Bd. of Trustees of Leonard Morse Hosp., 389 Mass. 729, 452 N.E.2d 208 (1983).

These do not appear to fit the definition of a "public body." Even if they did, they presumably would be covered by the OMA only to the extent that their decisions "effectuate and formulate public policy." Mich. Comp. Laws Ann. § 15.262(d).

Generally, such groups would not be governed by the Open Meeting Law.

These are not covered unless they meet the test set forth in § 25-41-3(a) and are both "created by statute or executive order" and "supported wholly or in part by public funds." A county-wide volunteer governmental council is not covered by the Open Meetings Act but attendance at the meeting by members of locally elected boards may be covered. See Op. Att'y Gen. Feb. 24, 1994 to Ronald S. Cochran, City of Biloxi.

As noted above, the Sunshine Law by its terms includes only “public governmental bodies” and “quasi-public governmental bodies.” Mo.Rev.Stat § 610.010(4). Entities that fall outside these definitions are not covered by the Sunshine Law.

The operative language of Montana's "sunshine" statute turns upon "funding." Nongovernmental groups whose members include governmental officials are included under Mont. Code Ann. § 2-3-203(1), if any public funds support the entity. Thus, payment of salary or per diem expenses for the governmental officials renders the body liable to follow the open meetings law. (See ¶¶ 7-9.)

The public entity must be a constituent body. Ad Hoc meetings of various state officials to discuss a matter of public concern are not "public bodies" within the meaning of the Constitution and statute. S.J.L. of Montana Associates v. City of Billings, 263 Mont. 142, 867 P.2d 1084 (1993).

No law. To the extent the non-governmental group includes governmental officials who constitute a quorum of some “public body”, the meetings would probably be considered a meeting of the public body and the Public Meetings Law would apply.

The membership of a few government officials in the nongovernmental group will not automatically make the organization a public body. A nongovernmental group whose members include governmental officials will be subject to the OML if it is supported in part by tax revenue and is formed by a public body and performs local governmental functions.

In Professional Firefighters (see above), the fact that HealthTrust’s board of directors included governmental officials was another factor considered by the Court in holding that HealthTrust was subject to the Statute.

The Times of Trenton Publishing Corp. v. Lafayette Yard Community Development Corp., 183 N.J. 519 (2005). Lafayette Yards was a private, non-profit corporation established solely to assist the City of Trenton, the Trenton Parking Authority and the State of New Jersey to provide for the redevelopment of a 3.1 acre site in Trenton through the construction of a hotel, conference center and parking facility. The corporation operated under certain constraints consistent with the Internal Revenue Code so that it could issue tax exempt bonds because its debt would then be deemed by the IRS to have been issued on behalf of the State or a political subdivision thereof. Among the constraints was a provision that title to the corporation's property revert to the City of Trenton when the Corporation's indebtedness was retired. Similarly, the City appointed or approved of the appointment of at least 80 percent of the corporation's governing board. The Times of Trenton sought to attend meetings of the board under OPMA and sought access to the board minutes under OPRA. The New Jersey Supreme Court determined that the Corporation was subject to both statutes because it is a public body performing a governmental function within the sunshine law and was an instrumentality or agency created by a political subdivision under OPRA.

The NJ Supreme Court has held that:  (1) records related to cases at public law school clinics are not subject to Open Public Records Act (OPRA); and (2) common-law right of access does not extend to records of a legal clinic at a public law school.  See Sussex Commons Associates, LLC v. Rutgers, 210 N.J. 531 (2012).

If the body is "cloaked with policymaking and decision making powers" by the entity with ultimate authority, it is subject to the Open Meetings Act.  See N.M. Att'y Gen. Op. 90-27. (The Las Cruces Selection Advisory Committee was a policy body subject to the Open Meetings Act because its purpose was to narrow the list of potential contractors by reviewing qualifications and reporting to the City Council.)

Although not directly addressed by the OML, nongovernmental groups performing a governmental function may be deemed to fall within the statute’s definition of “public body” and thus subject to the law. See, e.g., Syracuse United Neighbors v. City of Syracuse, 80 A.D.2d 984, 437 N.Y.S.2d 466 (4th Dep’t 1981), appeal dismissed, 55 N.Y.2d 995, 434 N.E.2d 270, 449 N.Y.S.2d 201 (1982) (mayor’s task force on abandoned housing and homestead committee).

Nongovernmental bodies are not covered, although the records of an official serving on a nongovernmental group by virtue of his or her governmental position might be subject to the Public Records Law.

If a body is not a public or governmental body, but its members include governmental officials, the open meetings law applies only if the body is supported in whole or in part by public funds or if the body expends public funds.

The statute does not expressly address nongovernmental bodies whose members are government officials. Where a nongovernmental body acts pursuant to authority delegated by a governmental body and acts for a public purpose, the body may be subject to the sunshine statute, especially where its governing body is comprised of some government officials.

A nonprofit corporation created by a political subdivision to acquire, construct, or rehabilitate housing is a public body for purposes of Ohio Rev. Code § 121.22. Its board of trustees must include government officials. Ohio Rev. Code § 176.011.

A nonprofit corporation under the direct control of a political subdivision and whose members and trustees are selected by the political subdivision and which controls a political subdivision's property for recreational events is subject to the open meetings statute. Ohio Rev. Code § 5709.081.

If the body is supported in whole or in part by public funds or entrusted with the expending of public funds, or administering public property, then it is covered under the Act. 25 O.S. § 304.1. If a majority of the public body sits as members of the non-governmental group, and the non-governmental body makes recommendations to the public body, then the non-governmental group would also be covered under the Act. 25 O.S. § 306; see also 1982 OK AG 212.

These groups are not subject to the law merely because they include governmental officials.

No cases under the Act speak to this, although the definition of “agency” is arguably broad enough to cover such an organization if it performs “an essential governmental function.”

Probably not covered unless a library or authority as defined in R.I. Gen. Laws § 42-35-1(2), as these groups may fall outside of the definition of “public body” under R.I. Gen. Laws § 42-46-2(3). Any political party, organization, or unit thereof meeting or convening for any purpose is expressly not covered by the OML.  Id.

If the nongovernmental group received support from public funds or expended public funds, the entity would be subject to the act. Membership by a governmental official in a group would not make the group subject to the act unless the group met the other qualifications. S.C. Code Ann. § 30-4-20(a). The receipt of public funds by a nongovernmental entity in exchange for goods and services will not make the nongovernmental entity a public body under the act. Weston v. Carolina Research and Development Found., 401 S.E.2d 161 (S.C. 1991); Sutler v. Palmetto Elec. Coop. Inc., 481 S.E.2d 179 (S.C. App. 1997).

These groups are probably not covered.

Not covered by the Act.

In Commissioners' Court of Hayes Cty. v. Dist. Judge, 506 S.W.2d 630, 636 (Tex. Civ. App.—San Antonio 1974, writ ref'd n.r.e.), conferences and discussion took place between a district judge, who does not come within the provisions of the Act, and the Commissioners' Court, which does. The Commissioners' Court and judge advised one another with regard to the probation budget for the judicial district, but the Commissioners' Court did not take any conclusive action. The appellate court found that such conferences were not within the mandatory requirements of the Act.

Nongovernment groups whose members include government officials are not subject to the Open Meetings Act, unless such groups are advisory bodies for the government. See Utah Code § 52-4-103(9).

Although it receives less than 25 percent of its total budget from the State, the University of Vermont is still a public body because, inter alia, it is chartered by the State, the Governor is an ex officio trustee, and the legislature appoints additional trustees. See Sprague v. Univ. of Vt., 661 F. Supp. 1132, 1138 (D. Vt. 1987); Animal Legal Defense Fund Inc. v. Univ. of Vt., 159 Vt. 133, 137-38, 616 A.2d 224 (Vt. 1992).  The Vermont Supreme Court has reiterated this holding, noting that the legislature had sufficient authority over UVM to render it a public body subject to Vermont’s Open Meeting Law and Public Records Act.  State v. Curley-Egan, 2006 VT 95, ¶ 15, 180 Vt. 305, 311-312 (Vt. 2006).

"Public body" includes "any committee, subcommittee, or other entity however designated, of the public body created to perform delegated functions of the public body or to advise the public body. It shall not exclude any such committee, subcommittee or entity because it has private sector or citizen members.” Va. Code Ann. § 2.2-3701.

The Act does not apply to nongovernmental groups except in specific instances, i.e., a policy group whose membership includes representatives of publicly owned utilities. RCW 42.30.020(1)(d). However, if a majority of the governing body of a particular agency meets with anyone else concerning agency business, then the meeting is considered a meeting of the governing body and is subject to the Act.

The question regarding the applicability of the Open Meetings Act to a nongovernmental group whose members include governmental officials is simply whether the inclusion of these governmental officials is sufficient to make the group an agency of government. The argument for coverage would be stronger if the governmental officials are acting within this nongovernmental group in their official, rather than private, capacities. Again, any conclusion regarding the coverage of the Open Meetings Act in this situation would have to be based on the facts of the particular case.

Non-governmental groups are not covered per se.

Non-governmental bodies may be subjected to the requirements of the open meetings law by contract. State ex rel. Journal/Sentinel Inc. v. Pleva, 155 Wis. 2d 704, 456 N.W.2d 359 (1990).

No Wyoming case has addressed this issue.