7. Advisory boards and commissions, quasi-governmental entities
The Alabama Open Meetings Act applies to advisory boards and commissions of the executive and legislative departments of the state or its political subdivisions or municipalities which expend or appropriate public funds; and to quasi-governmental entities of the state or its political subdivisions or municipalities, including 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 or municipalities. Ala. Code § 36-25A-2(4).
- Advisory groups. Advisory groups have been, and remain, expressly subject to the requirements of the OMA. The fact that an organization has no actual decision-making powers does not exempt it from the OMA. University of Alaska v. Geistauts, 666 P.2d 424, 428 (Alaska 1983); see also Municipality of Anchorage v. Anchorage Daily News, 794 P.2d at 589 (Anchorage Library Advisory Board).
[In Geistauts, the Alaska Supreme Court ruled that meetings of a university faculty tenure committee were governed by the OMA, and that a faculty member was entitled to reconsideration of a decision denying him tenure as a result of closed tenure committee hearings. While the principle for which the case is cited in the text remains valid, it should be noted that the university was successful in reversing the Supreme Court's ruling when it convinced the legislature to entirely exempt faculty tenure committee hearings and other meetings of university employee groups from the coverage of the OMA as part of the 1994 OMA revisions. See AS 44.62.310(d)(6).]
Before the OMA was revised in 1994, the act referred to "advisory" groups as such. See former AS 44.62.310(a). The current Act explicitly brings advisory groups within its reach by defining a "governmental body" to include not only those bodies of a public entity "with the authority to establish policies or make decisions," but also those "with the authority to advise or make recommendations to the public entity." AS 44.62.310(h)(1). However, the 1994 amendments to the OMA substantially changed the scope of coverage for purely advisory groups, and virtually eliminated penalties for OMA violations by these groups. AS 44.62.310(g). (Note that in certain circumstances, there may be more than one basis for requiring open meetings of an advisory group. See, for example, July 24, 1986, Attorney General Opinion regarding applicability of OMA to the Placer Mining Advisory Group. The opinion noted that if the PMAG received some funding through the U.S. Environmental Protection Agency, it may also be subject to requirements in 40 C.F.R. § 25.7 that all meetings of advisory groups funded in whole or in part by the EPA shall be open to the public.) The Alaska Supreme Court has broadly construed the OMA on each occasion when it has been presented with a question of applicability to advisory committees. See, e.g., University of Alaska v. Geistauts, 666 P.2d 424 (Alaska 1983) (advisory university tenure committee subject to OMA); Hammond v. North Slope Borough, 645 P.2d 750 (Alaska 1982) (advisory task forces subject to OMA).
- Quasi-governmental bodies. Various Attorney General opinions over the years have suggested that meetings of "independent corporations" or other quasi-governmental bodies set up by state law are subject to the open meetings law as a general rule, see January 2, 1981, opinion regarding Alaska Energy Center; February 17, 1982, opinion concerning Alaska Seafood Marketing Institute; and February 6, 1978, opinion concerning Alaska Industrial Development Authority (and by implication, Alaska State Housing Authority), noting that AS 44.62.310(a) (before the 1994 revisions) specifically made the open meetings statute applicable to an "authority of the state".) The Alaska Permanent Fund Corporation has been determined to be subject to the OMA, both with respect to its regular and special meetings and its work sessions and other meetings that would normally be public in the case of any other entity covered by the OMA. July 6, 1993 Attorney General Opinion No. 663-93-0397. See also February 9, 1984, Attorney General Opinion No. 366-417-84 regarding applicability of the OMA to the Alaska Resources Corporation.
The current law defines a "public entity," subject to the act, to include "a public authority or corporation." AS 44.62.310(h)(3). In some cases, the laws setting up these authorities also provide for open meetings and records. See, e.g., AS 42.40.150, -.170 (governing the Alaska Railroad Corporation), and AS 14.40.871 (meetings of the Alaska Aerospace Corporation). Whether or not a body in fact is a "public authority or corporation" or is otherwise covered by the OMA will depend, from case to case, on how the entity was set up and the degree of government involvement, initially or on an on-going basis.
The OML applies to “all standing, special or advisory committees or subcommittees of, or appointed by the public body.” A.R.S. § 38-431(6).
The OML also applies to committees even if the committee members are not members of the public body. Ariz. Att’y Gen. Op. No. I80-202. “Advisory committees” are defined as “any entity, however designated, that is officially established, on motion and order of a public body or by the presiding officer of the public body, and whose members have been appointed for the specific purpose of making a recommendation concerning a decision to be made or considered or a course of conduct to be taken or considered by the public body.” A.R.S. § 38-431(1).
OML applies to a quasi-judicial body, which is “a public body, other than a court of law, possessing the power to hold hearings on disputed matters between a private person and a public agency and to make decisions in the general manner of a court regarding such disputed claims.” A.R.S. § 38-431(7).
Because groups that simply render advice lack final decision-making authority, they are not governing bodies and their meetings are not subject to the FOIA. Ark. Op. Att’y Gen. No. 2007-224 (curriculum review committee). If, however, an advisory group’s recommendations are automatically accepted or “rubber-stamped” by its parent entity, then it is a de facto governing body and must comply with the act. Ark. Op. Att’y Gen. Nos. 2000-260, 2000-251, 99-407, 98-169, 98-113, 96-074, 91-288.
A county circuit court in 2004 ruled an appointed task force at the University of Arkansas, Fayetteville, was merely an advisory body not subject to FOIA open meeting requirements. The court rejected arguments that University System trustees would “rubber-stamp the task force’s recommendations.” Chris Branam, Judge Dismisses Student’s Suit, Arkansas Democrat-Gazette, Mar. 4, 2004 (digital archive). Trustees ultimately approved unanimously a student government overhaul endorsed by the task force. Chris Branam, UA Trustees Transfer Power Over Student Government Group to Chancellor, Arkansas Democrat-Gazette, Apr. 20, 2004 (digital archive).
The Bagley-Keene Act applies to any advisory board, advisory commission, advisory committee, advisory subcommittee or similar multimember advisory body of a state body, consisting of three or more persons, and that was created by formal action of a state body or any member of the state body. Cal. Gov't Code § 11121(c).
The Brown Act applies to 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). Advisory committees composed only of members of the legislative body that are less than a quorum of the legislative body are not subject to the Brown Act. Cal. Gov't Code § 54952(b). However standing committees of a legislative body, regardless of their composition, which have continuing subject matter jurisdiction, or a meeting schedule fixed by charter, ordinance, resolution or formal action of a legislative body are subject to the Brown Act. Cal. Gov't Code § 54952(b).
Two city councilmen who joined together to study an issue and present a report to the full five-member city council did not constitute an "other body" subject to the Brown Act where they did not form a quorum and their recommendations to the full council were advisory only. Taxpayers for Livable Communities v. City of Malibu, 126 Cal. App. 4th 1123, 1128-29, 24 Cal. Rptr. 3d 493 (2005).
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.
These bodies are covered if they (i) are supported in whole or in part by any public funds; (ii) expend or disburse any public funds, including grants, gifts or other similar disbursals and distributions; or (iii) are impliedly or specifically charged by any other public official, body or agency to advise or to make reports, investigations or recommendations. See 29 Del. C. § 10002(c).
While the Delaware Supreme Court emphasized in Delaware Solid Waste Authority v. News-Journal Co. that the "open meeting laws are liberally construed," 480 A.2d 628, 637 (Del. 1984), the General Assembly has excepted the proceedings of several boards from the purview of the open meeting law, in statutes other than FOIA. See, e.g., 13 Del. C. § 2105 (Domestic Violence Coordinating Council); 24 Del. C. § 1191 (Board of Dental Examiners); 24 Del. C. § 1768 (Board of Medical Practice); 31 Del. C. § 3810(c) (meetings of the Foster Care Review Board "at which individual cases are discussed or reviewed shall not be subject to § 10004 of Title 29"). House Bill 205 further exempts deliberations in case decisions by the Industrial Accident Board, the Human Relations Commission and the Tax Appeals Board.
District of Columbia
The Open Meetings Act applies to meetings of an "advisory body that take official action by the vote of its members convened for such purpose." D.C. Code Ann. § 2-574(3). The Act does not apply to meetings of Advisory Neighborhood Commissions, provided that those meetings comply with the requirements set forth in D.C. Code Ann. § 1-309.11.
An ad hoc advisory board, whose powers are limited to making recommendations to a public agency, possessing no authority to bind the agency in any way whatsoever, is nevertheless subject to the Sunshine Law. Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974); accord, Spillis, Candela & Partners Inc. v. Centrust Sav. Bank, 535 So. 2d 694 (Fla. 3d DCA 1988); see also IDS Props. v. Town of Palm Beach, 279 So. 2d 353 (Fla. 4th DCA 1973) (there is no “government by delegation” exception to the Sunshine Law; therefore, public agencies may not conduct the public’s business in secret through the use of an “alter ego”).
Advisory boards appointed to make recommendations are subject to dictates of the Sunshine Law. Krause v. Reno, 366 So. 2d 1244; Silver Express Co. v. Dist. Bd. of Tr. of Miami-Dade Cmty. Coll., 691 So. 2d 1099 (Fla. 3d DCA 1997) (committee appointed by college’s purchasing director to consider proposals to provide flight training services was subject to the Sunshine Law, where committee’s function was to weed through various proposals and to determine which were acceptable); Ruff v. Sch. Bd., 426 So. 2d 1015 (Fla. 2d DCA 1983) (Sunshine Law applies to an organizational meeting of a county school board sex education policy task force); News-Press Publ’g Co. v. Carlson, 410 So. 2d 546 (Fla. 2d DCA 1982) (meetings of an ad hoc internal budget committee of a county hospital are subject to the Sunshine Law); Wood v. Marston, 442 So. 2d 934 (search-and-screen committee appointed by the University of Florida president to solicit and screen applications for deanship is a “board or commission” within provisions of Sunshine Law; reasoning that the committee performs a policy-based, decision-making function in deciding which applicants to reject from further consideration. See also Dore v. Sliger, No. 90-1850 (2d Cir. Leon Co., July 11, 1990) (faculty of university law school prohibited from conducting secret ballots on personnel hiring matters). But see Bennett v. Warden, 333 So. 2d 97 (Fla. 2d DCA 1976) (fact-finding advisory committee appointed by a university president to advise him on employee working conditions is not subject to section 286.011; relying on the committee’s fact-finding nature and remoteness from the decision making process); Cape Publ’ns Inc. v. City of Palm Bay, 473 So. 2d 222 (Fla. 5th DCA 1985) (a committee formed for fact-finding, and not given any decision-making function is not subject to section 286-911); Op. Att’y Gen. Fla. 81-51 (1981) (meetings of a bid evaluation team or contract negotiation team of the Department of Health and Rehabilitative Services are not subject to the Sunshine Law when the teams consist solely of departmental staff and have no power to bind the department).
Quasi-judicial hearings, authorized by and at the direction of a board or commission are required to be held in public. See Canney v. Bd. of Pub. Instruction, 278 So. 2d 260 (Fla. 1973) (there is no “quasi-judicial” exception under the Sunshine Law allowing closed hearings during the deliberative process); Occidental Chem. Co. v. Mayo, 351 So. 2d 336, 341 n.7 (Fla. 1977). But see State of Fla. Dep’t of Pollution Control v. State Career Serv. Comm’n, 320 So. 2d 846 (Fla. 1st DCA 1975) (deliberations of Career Service Commission are exempt from the Sunshine Laws as such proceedings are “quasi-judicial” deliberations); see also section re “Executive branch agencies” above.
A task panel created by resolution of county or state government generally does not fall within the definition of a “board” under the Sunshine Law. Boards Created by Resolution, OIP Op. Ltr. No. 08-02 (July 28, 2008).
An advisory function, particularly when not involving final decisions, may provide grounds to forego public access to the meetings of advisory boards and commissions, task forces, and similar quasi-governmental entities. When television station KHON sued the State because the State Department of Health had refused to allow the public and press to attend a meeting of an advisory committee appointed to consider the problem of pesticides in drinking water, the court held that the committee was purely advisory, had no final decision-making power, was made up of volunteers, and was "not formed by statute, constitution, rule or executive order." Accordingly, the court held, the Sunshine Law's open meetings requirements did not apply. KHON-TV Inc. v. Ariyoshi, Civ. No. 78696 (Haw. 1st Cir. Aug. 1983). Notably, the Hawaii Supreme Court rejected the appeal on the grounds that the issue was moot.
Only more stringent requirements set forth in a charter, ordinance, or other regulation of a political subdivision of the State can supersede the Sunshine Law's requirements. Chang, 64 Haw. 431, 443-44, 643 P.2d 55, 64 (1982); Haw. Rev. Stat. § 92-71 (1996).
The Sunshine Law generally applies to neighborhood boards overseen by a neighborhood commission of the City and County of Honolulu, as well as similar neighborhood boards created in other counties and overseen by a count-based commission. Haw. Rev. Stat. § 92-81; see also Haw. Rev. Stat. §§ 92-82, -83.
Advisory boards and commissions are specifically covered. See 5 ILCS 120/1.02; see also Board of Regents v. Reynard, 292 Ill. App. 3d 968, 977, 686 N.E.2d 1222, 1228, 227 Ill. Dec. 66, 72 (4th Dist. 1997). Whether a "quasi-governmental" entity is covered depends on its function and the composition of its members.
While at least one court has said that the exceptions to the Act must be narrowly construed, Illinois News Broadcasters Ass'n v. City of Springfield, 22 Ill.App.3d 226, 228, 317 N.E.2d 288, 290 (5th Dist. 1974), the nature of subsidiary or advisory bodies subject to the Act has been the subject of judicial interpretation. Although the Act's definition of "public body" specifically includes "advisory bodies" at all levels of government, see 5 ILCS 120/1.02, one Illinois court has ruled that a university advisory committee was not an advisory body under the Open Meetings Act. In Pope v. Parkinson, 48 Ill. App. 3d 797, 363 N.E.2d 438, 6 Ill. Dec. 756 (4th Dist. 1977) a reporter for a student newspaper sought access to meetings of the University of Illinois Assembly Hall Advisory Committee. The committee consisted of four faculty members and four student members appointed by the university chancellor. It advised the Assembly Hall director on "policy questions" concerning the administration of the Assembly Hall.
The court reasoned that the committee's deliberations did not fall within the scope of the Open Meetings Act because the committee was not formally appointed by, or accountable to, any public body of the state. It was, rather, an informal committee, the sole function of which was to advise university administrators on matters pertaining to internal business affairs. The committee was not created by statute and, if disbanded, would not affect the public tax burden. See 48 Ill. App. 3d at 799, 363 N.E.2d at 440, 6 Ill. Dec. 758. The court added that its opinion was restricted to the facts of the case, and it was not deciding whether every university committee was exempt from the requirements of the Act. See 48 Ill. App. 3d at 801, 363 N.E.2d at 441, 6 Ill. Dec. at 759.
One court has set out criteria for determining in unclear cases whether a meeting of an advisory or subsidiary body must be open to the public. In Rockford Newspapers Inc. v. Northern Ill. Council on Alcoholism and Drug Dependence, 64 Ill. App. 3d 94, 380 N.E.2d 1192, 21 Ill. Dec. 16 (2d Dist. 1978), the court found that a private, not-for-profit organization (the NICADD), formed to administer drug and alcohol treatment programs, was not subject to the provisions of the Act, despite the fact that 90 percent of its funding came from governmental grants and contracts, and despite the fact that its programs were regulated and monitored by federal, state and local governments. The court relied on the following:
- a) The NICADD had a legal existence independent of the governmental body that regulated it. (That is, it was a private, not-for-profit ); and
- b) Its board of directors and employees were independent of such control. The court declared that general supervision by the governmental body "does not transform the supervised into a subsidiary of the government." 64 Ill. App. 3d at 95-97, N.E.2d at 1193-94, 21 Ill. Dec. at 17-18.
The Illinois Appellate Court, First Judicial District, cited Rockford with approval in Hopf v. Topcorp Inc., 170 Ill. App. 3d 85, 527 N.E.2d 1, 122 Ill. Dec. 629 (1988). A divided court found that a "mixed" private-public entity was not subject to the Act.
In Topcorp, two for-profit corporations entered into an agreement with a city and a university to develop a research park on 22 acres of downtown property owned principally by the city and the university. The city and the university owned all shares of capital stock in Topcorp and Topcorp's six-member board of directors included the mayor, an alderman and the city manager. The other for-profit corporation, Research Park Inc., was a wholly owned subsidiary of Topcorp.
Citizens of Evanston sought copies of minutes of the Topcorp and RPI meetings, arguing that Topcorp was public in nature under the Rockford standards, noting, inter alia, that the city owned half of the stock, and public officials and appointees sat on the corporation boards.
The appellate court ruled that the corporations were not sufficiently governmental to fall within the confines of the Open Meetings Act. It relied on the fact that both corporations were privately incorporated, despite the presence of public officials on the boards of directors. The court also found that the respective corporations' boards and employees were independent of direct governmental control, and that the private sector would provide the majority of funding for the actual development of the research park. The court also affirmed the trial court's finding that the city's supervision was general in nature, as was the university's.
The Illinois Appellate Court, Fourth District, held in Board of Regents of the Regency University System v. Reynard, 292 Ill. App. 3d 968, 686 N.E.2d 1222, 227 Ill. Dec. 66 (1997), that subsidiaries of public bodies can themselves be public bodies that, in turn, have subsidiaries constituting public bodies covered by the Act. The court noted that the Illinois State University Board of Regents was both an arm of the State of Illinois and the governing body of ISU. As such, the ISU Senate was a subsidiary of the board, and "a subsidiary public body is itself a public body" under the Act. Board of Regents, 292 Ill. App. 3d at 978, 686 N.E.2d at 1229, 227 Ill. Dec. at 73. Consequently, a subsidiary of the ISU Senate, the Athletic Council of Illinois State University, was a public body that was required to comply with the Act. Id
Any advisory commission created by statute, ordinance or executive order to advise the governing body of a public agency is covered by the Act. Ind. Code § 5-14-1.5-2(a)(5). Additionally, the Indiana Gaming Commission and the Indiana Horse Racing Commission are covered. Id. Ind. Code § 5-14-1.5-2(a)(4), (5).
Only those advisory groups statutorily specified by the legislature are required to hold public meetings. Mason v. Vision Iowa Bd., 700 N.W.2d 349, 356 (Iowa 2005). Groups without any policy-making power may not be required to have open meetings. See Donahue v. State, 474 N.W.2d 537, 539 (Iowa 1991) (finding an administrative panel comprised of university faculty members to review promotion decisions was not a “governmental body” because it exercised no policy-making power and its findings were not binding on the board of regents); Hummel v. Des Moines Indep. Cmty. Sch. Dist., No. 08-0763, 2009 WL 777929, at *7 (Iowa Ct. App. Mar. 26, 2009) (affirming district court finding that the review committee’s meetings were not subject to open meetings law where the committee did not have any policy-making duties). The Act applies to "governmental bodies." Governmental bodies include:
(1) A board, council, commission or other governing body expressly created by the statutes of this state or by executive order.
(2) A board, council, commission, or other governing body of a political subdivision or tax-supported district in this state.
(3) A multimembered body formally and directly created by one or more boards, councils, commissions, or other governing bodies subject to paragraphs "a" and "b" of this subsection.
(4) Those multimembered bodies to which the state board of regents or a president of a university has delegated the responsibility for the management and control of the intercollegiate athletic programs at the state universities.
(5) An advisory board, advisory commission, or task force created by the governor or the general assembly to develop and make recommendations on public policy issues.
(6) An advisory board, advisory commission, advisory committee, task force, or other body created by statute or executive order of this state or created by an executive order of a political subdivision of this state to develop and make recommendations on public policy issues.
(7) The governing body of a drainage or levee district as provided in chapter 468, including a board as defined in section 468.3, regardless of how the district is organized.
(8) An advisory board, advisory commission, advisory committee, task force, or other body created by an entity organized under chapter 28E, or by the administrator or joint board specified in a chapter 28E agreement, to develop and make recommendations on public policy issues.
Iowa Code § 21.2. See also Hettinga v. Dallas Cty. Bd. of Adjustment, 375 N.W.2d 293, 295 (Iowa App. 1985) ("The Dallas County Board of Adjustment is certainly a 'governmental body' within the definition of section 22.2(1)(b)."); Wedergren v. Bd. of Dirs., 307 N.W.2d 12 (Iowa 1981) (School board).
Such an entity is subject to KOMA if it:
- is a body or agency within the meaning of the act; and
- has legislative or administrative powers or at least is legislative or administrative in its method of conduct; and
- must be a governmental entity at the state or local level, whether it is the governing body or some subordinate group; and
- must receive or expend public funds or be a subordinate group of a body subject to the Act; and
- must be supported in whole or in part by public funds or be a subordinate group of a body which is so financed. State ex rel Murray v. Palmgren, 231 Kan. 524, 535, 646 P.2d 1091 (1982); Smoot and Clothier, Open Meetings Profile: The Prosecutor's View, 20 Washburn L.J. at 256-57; Kan. Att’y Gen. Ops. 1986-84, 1993-41, 1993-73, 1993-130. Governor-Elect advisory groups were held not subject to KOMA. Associated Press v. Sebelius, 31 Kan. App 2d. 1107, 78 P.3d 486 (2003).
Administrative bodies exercising quasi-judicial functions when the body is deliberating matters relating to a decision involving quasi-judicial functions are not subject to KOMA, but binding action must be in an open meeting. See Kan. Att’y Gen. Ops. 91-31, 84-50 and 79-225. The Attorney General has found that the following administrative bodies were performing quasi-judicial functions not subject to KOMA: zoning boards (Kan. Att’y Gen. Op. 78-13); city grievance panels (Kan. Att’y Gen. Op. 91-31) and hearing panels (Kan. Att’y Gen. Op. 97-40).
Public agencies covered by the Open Meetings Act include "[a]ny board, commission, committee, subcommittee, ad hoc committee, advisory committee, council or agency . . . established, created and controlled by a 'public agency.'" Ky. Rev. Stat. 61.805(2)(g).
An advisory committee, which was appointed by the county judge-executive, is a public agency because the judge-executive is a member of a public agency. 95-OMD-124; see also Lexington Herald-Leader Co. v. University of Kentucky Presidential Search Committee, 732 S.W.2d 884 (Ky. 1987) (including ad hoc committees and advisory bodies as public agencies subject to the Act).
In 95-OMD-71, the Attorney General held that the "Prestonsburg Community College Leadership Team" is not a public agency because it "exists at the sole discretion of the President of the college, and its composition, role and use are defined by the President." If the college's governing body, its board of trustees, had appointed the group, the Attorney General would have held differently. This is because the board, and not the president, is a "public agency" subject to Ky. Rev. Stat. 61.805(2). Id. In contrast, the Attorney General held that the Eastern Kentucky University’s advisory “Faculty Committee on Dismissal” is a public agency because it was created, established, and controlled by the University’s Board of Regents. 18-OMD-125.
Boards and commissions created pursuant to public authority and that possess advisory functions are covered by the Open Meeting Law. La. Rev. Stat. Ann. § 42:13(3): “‘Public body’ means . . . any other state, parish, municipal, or special district boards, commissions, or authorities, and those of any political subdivision thereof, where such body possesses policy making, advisory, or administrative functions, including any committee or subcommittee of any of these bodies enumerated in this paragraph.” See e.g., Op. Att'y Gen. 95-313 (committee of private citizens appointed by mayor for discussion, research and advice subject to Open Meeting Law); Op. Att'y Gen. 92-726 (Caddo Parish Special Education Advisory Council and its subcommittees are public bodies subject to Open Meeting Law); Op. Att'y Gen. 92-476 (Lake Pontchartrain Basin Foundation subject to Open Meeting Law); Op. Att'y Gen. 92-299 (advisory board to public library); Op. Att'y Gen. 89-481 (citizens' advisory committee on city charter revision; appointed by Mayor); Op. Att'y Gen. 87-779 (medical staff of a parish [county] hospital district is covered by Open Meeting Law because it is created pursuant to public authority and is authorized to give advice and assistance to the hospital district commission, to promulgate rules and regulations for the hospital staff, and to approve appointment of the hospital director); Op. Att'y Gen. 79-1392 (an advisory commission appointed by the mayor, comprised of private citizens and executive officials, and granted advisory functions is governed by the Open Meeting Law; in function, the commission can be classified as a subcommittee of a municipal governing body). But see La. Rev. Stat. Ann. § 17:3390(B)(l) (certain university foundations not deemed public or quasi-public corporations); Op. Att'y Gen. 91-203 (LSU Tiger Athletic Foundation held to be a "private, nonprofit corporation"); Op. Att'y Gen. 96-441 (Industry Task Force/Advisory Group on Unnecessary Rules and Regulations in State Government is not a public body because membership is voluntary and it was not created by any legal entity). An advisory board created and governed by federal law, however, is not subject to the Louisiana Open Meeting Law, even though the board functions within the state university system. Dorson v. Louisiana, 657 So. 2d 755 (La. App. 4th Cir.), writ denied, 662 So. 2d 472 (La. 1995) (Institutional Animal Care and Use Committee not subject to Open Meeting Law).
Quasi-governmental entities whose functions are sufficiently governmental to qualify them as political subdivisions of the state, such as certain hospital administrative districts and water and sewer districts are subject to the Act. Advisory bodies created by Executive Order, law or resolve are covered unless the instrument that created the body excludes it from the Act. 1 M.R.S.A. § 402(2)(F). Other advisory bodies are not “automatically excluded” from being a state agency or authority” subject to the Act because the statute provides that a “public proceeding” includes the transaction of any functions” of any of the entities covered by the statute, and the provision of advice may be considered a “function.” Me. Op. Att'y Gen., 1980 WL 119341 (June 5, 1980).
The Act is applicable to all public bodies, unless they are performing administrative, judicial or quasi-judicial functions. § 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).
Subcommittees of public bodies, and any “multiple-member body created to advise or make recommendations to a public body,” are covered if they were established “to serve a public purpose.” G.L. c. 30A, § 18 (definition of “public body”). This will be true “regardless of whether their role is decision-making or advisory.” Open Meeting Law Guide” (Att’y Gen’l, Jan. 2018) at 6, https://www.mass.gov/files/documents/-2018/11/15/2017%20Guide%20with%20ed%20materials_revised%201-30-18.pdf. It does not matter how they were created, how they are constituted, or whether their members are elected or appointed, so long as they were established to serve a public purpose
Mich. Comp. Laws Ann. § 15.263(7) specifies that the OMA does not apply to the following entities when they are deliberating the merits of a case:
(a) The workers compensation appeal board created under Mich. Comp. Laws Ann. § 418.101-.941.
(b) The employment security appeals board created under Mich. Comp. Laws Ann. § 421.1-.67.
(c) The teacher tenure commission created under Mich. Comp. Laws Ann. § 38.71-.191.
(d) An arbitrator or arbitration panel appointed by the employment relations commission pursuant to the authority given the commission by Mich. Comp. Laws Ann. § 423.1-3.
(e) An arbitration panel covering health care arbitration selected pursuant to Mich. Comp. Laws Ann. § 600.5040-.5065.
The definition of a "public body" is also tempered by the definition of "meeting," which is "the convening of a public body at which a quorum is present for the purpose of deliberating toward or rendering a decision on a public policy." Mich. Comp. Laws Ann. § 15.262(b). Thus, the Attorney General has surmised that the OMA does not apply to committees and subcommittees of public bodies which are merely advisory or only capable of making recommendations concerning the exercise of governmental authority, but which are not legally capable of rendering a final decision. 1977-78 Op. Att'y Gen. 21, 40 (1977). See Edwards v. Oakland Twp., No. 320133, 2015 WL 1277009, at *1 (Mich Ct App March 19, 2015) (subcommittee formed by the Township Board to study the use of a cider mill property had no authority to render decisions and was therefore not subject to OMA).
However, the Attorney General has also opined that a meeting of a standing committee of a county board of commissioners, composed of less than a quorum of the full board, is subject to the OMA when the committee is effectively authorized to determine what items of county business are referred for action by the full board. 2009 Op. Att'y Gen. No. 7235 (2009) (emphasis added) (quoting 1998 Op. Att'y Gen. No. 7000 (1998)).
Additionally, the Michigan Court of Appeals has taken a broad view of such committees. See Schmiedicke v. Clare Sch. Bd., 228 Mich. App. 259, 577 N.W. 2d 706 (1998) abrogated on other grounds by Speicher v. Columbia Twp. Bd. of Trustees, 497 Mich 125, 860 NW2d 51 (2014) (school board's referral to a committee for a recommendation regarding method of evaluating administrators and length of their contracts was a delegation of authority to perform a public function and meetings are subject to OMA); Morrison v. City of E. Lansing, 255 Mich. App. 505, 520, 660 N.W.2d 395 (where city council "effectively authorized" committee to perform a governmental function and the committee held public meetings to solicit public input, despite the fact that the committee was not capable of rendering a final decision, it was still a public body subject to OMA).
Of course, where such a subcommittee contains the entire body of the public body which it serves, it would be a violation of the OMA to allow such subcommittees to meet in closed session. 1977-78 Op. Att'y Gen. at 40. Similarly, the Michigan Environmental Review Board and the Interdepartmental Environmental Review Committee are not subject to the provisions of the OMA as "public bodies," because they are advisory bodies created by the Governor (who in fact is not authorized under Michigan law to create public bodies which exercise governmental or proprietary functions). 1977-78 Op. Att'y Gen. 21, 29-30 (1977); see also 1997 Op. Att'y Gen. No. 6935 (1997) (OMA not applicable to advisory committee formed by a board of education to study eligibility standards for participation in athletics). The State Board of Ethics, on the other hand, has been held to be subject to the OMA because, although its function is advisory and it is not empowered to take direct action against a person or agency, the Board cannot be considered merely an advisory body since the compulsory language of the act which creates the Board obligates the appointing authority to act upon the Board's recommendation. 1979-80 Op. Att'y Gen. 935, 937 (1980).
An urban redevelopment corporation organized under the law is subject to OMA and FOIA. 2000 Op. Att'y Gen. No. 7066 (2000). A corporation formed under the summer resort owners corporation act is subject to OMA and FOIA. 1997 Op. Att'y Gen. No. 6942 (1997).
Advisory boards and commissions or quasi-governmental entities, or any other body appointed or elected that receives public funds is subject to the law. See Mont. Code Ann. § 2-3-203(1). See also Bryan v. Yellowstone Co. Elem. Sch. Dist. No. 2, 312 Mont. 257, 60 P.3d 381 (2002) (Montana Supreme Court held that a committee created by a school district to research a proposition and submit a recommendation to the school board was a public or governmental body subject to the right to know provision of the Montana Constitution); but see Goldstein v. Commission on Practice of Supreme Court, 297 Mont. 493, 995 P.2d 923 (2000), the Montana Supreme Court held that confidentiality provisions of Rules on Lawyer Disciplinary Enforcement did not violate an attorneys' right to know or right to participate in government decisions by excluding attorney from the deliberations of Commission on Practice following the filing of formal complaint and held that Commission was not subject to open meeting requirements and sat in only advisory capacity to Supreme Court.
Governmental boards, commissions, councils and committees which are purely advisory in nature and which are not collectively empowered to perform governmental functions or spend public funds are exempt from the provisions of OPMA. N.J.S.A. 10:4-8a; Township Committee v. Board of Chosen Freeholders, 213 N.J. Super. 179, 516 A.2d 1140 (Law Div. 1985).
Probably, if the body is "cloaked with policymaking and decision making powers" by the entity with ultimate authority. 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.)
Subject to OML. Advisory committees, task forces and commissions which perform governmental functions have been held subject to the OML. See Reese v. Daines, 62 A.D.3d 1254, 887 N.Y.S.2d 801 (4th Dep’t 2009) (Western New York Health System is a public body because it performs a “quintessentially governmental function . . . by overseeing the merger and consolidation of [county medical services]” and “has final decision-making authority to carry out that function”); 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); Flynn v. Citizen Review Bd., No. 96-094 (Sup. Ct., Onondaga Cty., March 11, 1996) (citizens board appointed to investigate police misconduct); Pissare v. City of Glens Falls, (Sup. Ct., Warren Cty., March 7, 1978) (civic center commission created by common council and appointed by mayor); MFY Legal Services Inc. v. Toia, 93 Misc.2d 147, 402 N.Y.S.2d 510 (Sup. Ct. 1977) (medical advisory committee appointed by Governor).
Not subject to OML. An advisory committee, task force or commission is not subject to the OML where it possesses no power and exists merely to provide advice and, therefore, is not a “public body” serving a governmental function. See Matter of Hayes v. Chestertown Volunteer Fire Co., Inc., 93 A.D.3d 1117, 941 N.Y.S.2d 734 (3d Dep’t 2012) (private, not-for-profit corporation comprised of volunteer firefighters was not subject to OML); Goodson Todman Enterprises Ltd. v. Milan Town Board, 151 A.D.2d 642, 542 N.Y.S.2d 373 (2d Dep’t 1989) (town zoning revision committee’s function was purely advisory and did not involve exercise of sovereign power); Poughkeepsie Newspaper Division of Gannett Satellite Information Network et al. v. Mayor’s Intergovernmental Task Force on New York City Water Supply Needs, 145 A.D.2d 65, 537 N.Y.S.2d 582 (2d Dep’t 1989) (task force has no power on its own, and does not serve a governmental function); NYPIRG v. Governor’s Advisory Commission, 133 Misc.2d 613, 507 N.Y.S.2d 798 (Sup. Ct. New York Cty. 1986) (advisory commission is not subject to OML where it merely makes recommendations and was created by executive order); Snyder v. Third Dep’t Judicial Screening Comm., 18 A.D.3d 1100, 795 N.Y.S.2d 398 (3d Dep’t 2005) (Snyder filed a petition to compel a judicial screening committee composed of members designated pursuant to an Executive Order issued by the Governor to disclose information about candidates seeking to fill the unexpired term of a county judgeship. Snyder sought information about highly rated candidates, along with post-appointment communications between the successful candidate and the screening committee. The committee responded that its records and deliberations were not subject to disclosure on the basis of 9 NYCRR § 5.10 (2)(d), which mandates confidentiality for the committee’s deliberations, reports, and communications with candidates. Snyder sought review of a trial court judgment that granted the judicial screening committee’s motion to dismiss the petition for failure to state a cause of action based on the committee’s role as being merely advisory and, thus, outside the scope of the Freedom of Information Law and the Open Meetings Law. The intermediate appellate court affirmed, holding that confidentiality is necessary to the judicial selection process, and that the screening committee’s role was limited to providing the Governor — who retained the discretionary power of judicial appointment under the state Constitution — with the names of potential candidates. Therefore, the information sought was not subject to FOIL, nor were the Open Meeting Law’s requirements applicable); Rowe v. Town of Chautauqua, No. 10-02314, 524, 2011 WL 1733882 (4th Dep’t, May 6, 2011) (institution has no power to act on the State’s behalf, thus it is not a public body and not subject to OML).
Meetings of committees and subcommittees. Several court decisions rendered soon after the enactment of the OML held that meetings of committees without authority to take final or binding action were not “meetings” within the meaning of the law. See, e.g., Daily Gazette Co. v. North Colonie Bd. of Educ., 67 A.D.2d 803, 412 N.Y.S.2d 494 (3d Dep’t 1979) (standing committee of board of education); Bigman v. Siegel (Sup. Ct., Queens Cty., Sept. 29, 1977) (Queens College committee on faculty personnel and budget). The OML was amended, effective October 1, 1979, to include committees and subcommittees within the definition of the term “public body,” thus clarifying that such entities are within the scope of coverage of the OML.
The open meetings law expressly applies to task forces and working groups created by the individual in charge of a state agency or institution. N.D.C.C. § 44-04-17.1. Additionally, because almost all advisory boards, commissions, and quasi-governmental entities expend public funds or are supported in whole or in part by public funds, they would be within the open meetings law.
The statute does not expressly address advisory boards, but does apply to "any" committee or subcommittee of a decision-making body of a political subdivision, and "any" committee or subcommittee of a decision-making body of a state agency. Ohio Rev. Code § 121.22(B)(1)(b).
The making of recommendations is a form of decision-making, and thus the delegation of investigatory duties to a committee, which makes recommendations, gives the committee sufficient decision-making authority to be a public body. Maser v. City of Canton, 62 Ohio App. 2d 174, 405 N.E.2d 731 (1978); Thomas v. White, 85 Ohio App. 3d 410, 620 N.E.2d 85 (1992); see also Cincinnati Enquirer v. Cincinnati, 145 Ohio App. 3d 335, 762 N.E.2d 1057 (Hamilton 2001) (finding that an architectural review board that advised and made recommendations was a public body).
Public body for purposes of the Act "shall" include all committees or subcommittees of any public body, except that meetings conducted by Stewards of the Oklahoma Horse Racing Commission are not covered when they are officiating at races or otherwise enforcing rules of the Commission. 25 O.S. § 304.1. However, the Oklahoma Supreme Court has disregarded this legislative mandate, and held that not all committees and subcommittees of any public body are covered under the Act. If the subordinate entity exercises actual or de facto decision-making authority, then it must comply with the Act. International Ass'n of Firefighters, Local 2479 v. Thorpe, 1981 OK 95, 632 P.2d 408; Sanders v. Benton, 1978 OK 53, 579 P.2d 815. If the subordinate entity has a purely recommendatory, informational, fact-finding or advisory purpose with no decision-making authority, then it is not subject to the Act. Andrews v. Indep. School Dist. No. 29 of Cleveland County, 1987 OK 40, 737 P.2d 929. The Oklahoma State Textbook Committee is a public body under the Act. 2002 OK AG 7.
Such entities are generally not agencies subject to the Sunshine Act. In FOP Lodge No. 5. v. City of Phila., 500 A.2d 900 (Pa. Commw. Ct. 1985), appeal dismissed, 518 A.2d 263 (Pa. 1986), the court held that the MOVE Commission, a temporary advisory body appointed by the mayor with a limited purpose, was not an “agency” under the predecessor to the Sunshine Act. One court of common pleas has stated that the Task Force to Address Residents’ Concerns of the Solid Waste Disposal Facility, whose purpose was to address concerns regarding a local incinerator, was an “agency” under the Sunshine Act upon passage of the resolution creating the task force. York Newspapers, Inc. v. Springettsbury Twp., (York Ct. C.P., August 15, 1990) (unpublished opinion).
In Ristau v. Casey, 647 A.2d 642 (Pa. Commw. Ct. 1994), the Commonwealth Court held that the Governor’s Trial Court Nominating Commission was not an “agency” because: 1) the Commission was not created by statute; 2) it neither performed nor was created to perform an “essential” governmental function; and 3) the Commission itself exercised no governmental authority, but merely advised the governor on how to exercise his constitutional authority to appoint, subject to Senate approval. Id. at 646-47. Earlier, the Commonwealth’s Office of General Counsel had issued a policy statement concluding that the Act applies to ad hoc advisory commissions appointed by the executive branch, such as the Local Tax Reform Commissions, only when they render advice that affects substantive or procedural rights of the public or when they are legally necessary for the exercise of an essential governmental function. See 4 Pa. Code § 1.42 (2001).
In Patriot-News Co. v. Empowerment Team, 763 A.2d 539 (Pa. Commw. Ct. 2000), the court addressed whether the Sunshine Act applied to “empowerment teams” created by two school districts for the purpose of creating “school district improvement plans” and recommending them to the Pennsylvania Department of Education and the school districts for approval and implementation. The court ruled that such teams were “agencies” under the Sunshine Act because they were committees authorized by school districts to render advice on matters of agency business, as set forth in the Act’s definition of “agency.” Id.; see also Hacker v. Colonial League, 56 D. & C. 4th 281 (Lehigh Cty. Ct. C.P. 2001) (holding that an interscholastic league was acting as a de facto school board and came within the definition of “agency” under the Sunshine Act).
In Mazur v. Washington Cty. Redevelopment Auth., 900 A.2d 1024 (Pa. Commw. Ct. 2006), the court held that a “tax increment financing (TIF) committee,” composed of members of local taxing authorities and the redevelopment authority, was not an agency required to hold open meetings under the Sunshine Act given that the TIF Act (1) did not require designated representatives to act jointly; (2) the committee did not exercise any governmental authority or take official action; and (3) committee members, as a group, did not render advice to the redevelopment or taxing authorities.
R.I. Gen. Laws § 42-46-2(3) includes public bodies which are supervisory or advisory in nature and not just public bodies that meet to render decisions. See Solas v. Emergency Hiring Counsel of State, 774 A.2d 820, 825 (R.I. 2001). As discussed above, quasi-governmental agencies which meet the definition of “authority” in R.I. Gen. Laws § 42-35-1 are covered.
Covered by the Act. Forbes v. Wilson County Emergency Communications Dist., 966 S.W.2d 417 (Tenn. 1998) (Personnel Policy Committee of County Emergency Communications District 911 Board was subject to Act); See Richard L. Hollow & Rudolph L. Ennis, Tennessee Sunshine: The People's Business Goes Public, 42 Tenn. L. Rev. 527, 538 (1975) (citing legislative history that gives a broad reading to the term "public body" but does not indicate any specific bodies); see also Op. Att'y Gen. No. 94-77, 19 TAM 31-29 (July 8, 1994) (partisan caucuses given authority to make recommendations to or decisions for county legislative bodies are subject to Open Meetings Act); but see Perdue v. Quorum Health Resources Inc., 934 F. Supp. 919 (M.D. Tenn. 1966) (no violation of act where City Hospital Board of Trustees did not meet to consider termination of employee of a private company that provided management services to the hospital).
The Act does not cover advisory sub-units without rulemaking or quasi-judicial power. A city's library board was not required to meet in a public place because it was not a rulemaking body and had no quasi-judicial function. Op. Tex. Att’y Gen. No. H-467 (1974). In Op. Tex. Att’y Gen. No. JM-1185 (1990), the Attorney General concluded that a community criminal justice council created by district judges under a Code of Criminal Procedure provision was advisory and not a governmental body subject to the Act. However, if a committee formed from members of a governmental body covered by the statute is considering matters that are pending before the parent body, then the committee must meet in public. Op. Tex. Att’y Gen. No. H-3 (1973); see also Op. Tex. Att’y Gen. No. JM-1072 (1989); Op. Tex. Att’y Gen. No. JC-0060 (1999) (the Attorney General opined that the initial work of a committee containing two members of a commissioners court and seven other individuals, which evaluated architectural firm applicants, did not fall under the Act because it appeared to be "an advisory body, without power to supervise or control public business."); Op. Tex. Att’y Gen. No. H-994 (1977) (opining that the Act does apply if the committee meets to discuss public business or policy; but does not apply to a purely advisory body which has no power to supervise or control public business).
Municipal Zoning Advisory Committees; Nursing Advisory Committees. Pursuant to Tex. Loc. Gov’t Code § 211.0075 (West 2016), a board or commission established by an ordinance or resolution adopted by the governing body of a municipality to assist the governing body in developing an initial comprehensive zoning plan or initial zoning regulations for the municipality, or a committee of the board or commission that includes one or more members of the board or commission, is subject to the Act. The nursing committee formed by the statewide health coordinating counsel also is subject to the Act. Tex. Health & Safety Code § 104.0155(e) (West 2017).
Property Owners' Associations: The Act specifically is made applicable to certain property owners' associations. Under Section 551.0015, a property owners' association is subject to the Act if (1) membership in the association is mandatory for a defined class of owners of private real property in or adjacent to a county with a population of over 2.8 million, (2) the association has the power to make mandatory special assessments for capital improvements or mandatory regular assessments, and (3) the amount of the mandatory special or regular assessments is or has ever been based in whole or in part on the value at which the state or a local government body assesses the property. Tex. Gov’t Code§ 551.0015(a)(1).
The Open Meeting Law contains a carve-out for “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); see also Browning v. State, No. 272-5-14, 2014 Vt. Super. LEXIS 106, *14-15 (Vt. Super. Wash. County Dec. 10, 2014) (recognizing that the Governor’s Business Advisory Council on Health Care Financing and the Governor’s Consumer Advisory Council on Health Care Reform, whose purpose is to “provide the Governor with advice and information on health care reform” were exempt from the state’s open meeting law).
"Public body" includes any “organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds,” and “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. . It has been opined that certain citizen advisory boards are exempt from the Act. To qualify for the exemption, the committee (1) must not have been created by a public body, rather than by a member of the body; (2) must not perform a function delegated to it by the public body; (3) does not advise a public body; and (4) must not receive any public funds, including reimbursement for expenses. 1979 Va. Op. Atty. Gen. 316 (April 3, 1979).
If an advisory board or commission is created by or pursuant to statute, ordinance or other legislative act or if such group in fact sets policy for an agency, then these boards and commissions are covered by the Act. RCW 42.30.020(1). The Act does not apply to meetings of an interstate advisory body. Salmon for All v. State of Wash., 118 Wn.2d 270, 821 P.2d 1211 (1992).
The Open Meetings Act's definition of a "public agency" — as "[A]ny administrative or legislative unit of state, county or municipal government, including any department, division, bureau, office, commission, authority, board, public corporation, section, committee, subcommittee or any other agency or subunit of the foregoing, authorized by law to exercise some portion of executive or legislative power." W. Va. Code § 6-9A-2(7). In addition, the statute's definition of "governing body" specifically includes entities whose function is "to make decisions for or recommendations to a public agency on policy or administration." Id. § 6-9A-2(4).
Advisory Boards and commissions are covered if they are created by official action. Wis. Stat. § 19.82(1); Outagamie Cty. v. Smith, 38 Wis. 2d 24, 155 N.W.2d 639 (1968). “Quasi-governmental corporations” need not be created by government for the open meetings law to apply. A private corporation that significantly resembles a governmental corporation in function, effect or status, is covered. State v. Beaver Dam Area Dev. Corp., 2008 WI 90, ¶¶ 33–36, 312 Wis. 2d 84, 752 N.W.2d 295 (economic development corporation that serves only the city is a quasi-governmental corporation). The non-exhaustive list of factors to be considered in making this determination includes: (1) the extent to which the private corporation is supported by public funds; (2) whether the private corporation serves a public function and, if so, whether it also has other, private functions; (3) whether the private corporation appears in its public presentations to be a governmental entity; (4) the extent to which the private corporation is subject to governmental control; and (5) the degree of access that government bodies have to the private corporation’s records. Id., ¶ 62.
In a 2016 case, the Supreme Court ruled that a committee formed by the City of Cheyenne to recommend a final plan for employee compensation to the city council for adoption was not covered by the Public Meetings Act. Cheyenne Newspapers v. City of Cheyenne, 2016 WY 125. The decision found that the committee’s function was “of a special and temporary character” and that it was created via a resolution, not ordinance. The Public Meetings Act definition of agencies governed by its provision includes “any authority, bureau, board, commission, committee, or subagency of the state, a county, a municipality or other political subdivision which is created by or pursuant to the Wyoming constitution, statue or ordinance. . .” The Court recognized the potential for governmental entities to evade public access by forming temporary committees, and quoted from courts from other states stating that such evasion violates the Act. It found no such evasive activity in this case.