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a. Must a minimum number be present to constitute a "meeting"?

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  • Alaska

    The law defines a meeting as a gathering of more than three, or a majority, of the members of a public body. In most cases, the minimum number of people that must be present to constitute a meeting would be three (for a group with five or more members). However, it would be two, when the committee, subcommittee, or other subordinate unit of a governmental body consists of either two or three members. It is also possible that a series of gatherings of fewer than the number of members necessary to constitute a meeting could still be held a violation of the OMA, where the intent or effect of such gatherings was to circumvent the OMA. For example, in a Florida case cited in briefing of various open meetings cases, the court held that a series of sequential meetings between a school superintendent and individual members of the school board (so that no more than one member of the body was ever present at the same time) still constituted a violation of that state's open meetings act, where it was done with the purpose of avoiding the requirements of the public meetings law.

    In Hickel v. Southeast Conference, 868 P.2d 919 (Alaska 1994), the superior court held that the Reapportionment Board violated the OMA by "meeting outside of noticed meetings to do the business of reapportionment." In particular, the superior court found that the Board members had one-on-one conversations with each other, in which they discussed reapportionment affairs and districting preferences, and solicited each other's advice, and also found that the "dearth of [substantive] discussion on the record, combined with the manner of some Board members at trial, as well as other evidence presented at trial, convinces this court that important decision-making and substantive discussion took place outside the public eye." The Supreme Court reiterated its earlier holding in Brookwood Area Homeowners' Ass'n v. Anchorage, 702 P.2d 1317, 1323 (Alaska 1985) that "a 'meeting' includes every step of the deliberative and decision-making process when a governmental unit meets to transact public business." The Hickel court reiterated that the Supreme Court had noted in Brookwood that "the question is not whether a quorum of a governmental unit was present at a private meeting. Rather, the question is whether activities of public officials have the effect of circumventing the OMA." Hickel, 868 P.2d at 929, quoting Brookwood, 702 P.2d at 1323, n.6. The Supreme Court stated that its review of the record indicated support for the factual finding that the Reapportionment Board had conducted some of its reapportionment business outside scheduled public meetings, and based on this, the Supreme Court agreed that the Board had violated the OMA. It is arguable that this decision, which was issued by the court before the 1994 amendments to OMA were adopted, may be affected by the fact that the legislature defined a meeting in that case as a gathering of more than three or a majority of the members, whichever is less. However, the legislature did not intend by this clarification or definition of meeting to change the rule articulated in Brookwood, that situations that would not otherwise constitute meetings would still violate the OMA where the purpose or effect of the communications was to circumvent the OMA. This point was made on a number of occasions throughout the legislative committee hearings and other proceedings leading up to the 1994 revisions of the OMA, and was a point upon which proponents of both sides of the OMA debates, as well as the key legislators involved, did not differ.

    Voting by mail.

    A member of a body may vote by mail (or by teleconferencing, so long as the vote is recorded to identify each person, and show how the person voted). AS 44.62.600. Voting by mail does not constitute a meeting, per se, but the Attorney General has recommended to agencies that all mail voting materials contain a notice stating in part: "Board action on this matter is being taken via mail vote in accordance with AS 44.62.600. Due to open meeting requirements in this state, members are reminded not to discuss this matter with one another." July 5, 1994 Attorney General Opinion No. 663-94-0569.

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  • Arizona

    The OML does not apply if a quorum is not present.

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  • Arkansas

    The FOIA is silent as to the number of members of the governing body that must be present for the meeting to be subject to the act. The Arkansas Supreme Court has held that the FOIA applies to meetings of less than a quorum of the governing body and to committee meetings. See Mayor & City Council of El Dorado v. El Dorado Broad. Co., 260 Ark. 821, 544 S.W.2d 206 (1976). According to the Attorney General, the “number of attendees at a meeting is not, in and of itself, dispositive,” and the relevant inquiry is “the extent to which the facts suggest potential evasion of the FOIA.” Ark. Op. Att’y Gen. No. 99-018. For example, “successive meetings of two members prior to action by the governing body” could be viewed as an attempt to “avoid public discussion” and would likely trigger the act. However, “[i]f the two members meet alone, and there is no evidence that the FOIA is being circumvented,” then such a meeting would likely fall outside the act. This is so even though government business is discussed. Id. See also Ark. Op. Att’y Gen. No. 99-014 (it would be unreasonable to suggest that a meeting for FOIA purposes occurs every time school board members gather for a tour of the school, but discussion during the tours of matters likely to come before the board would trigger the act). Meetings at which government business is not discussed, or social functions where the discussion of such business is intermittent and incidental, are not subject to the FOIA. Ark. Op. Att’y Gen. Nos. 95-020, 93-355.

    A statute governing county election commissioners provides that “any meeting of two (2) or more commissioners” shall be held pursuant to the FOIA “when official business is conducted.” Ark. Code Ann. § 7-4-105(b). There are only three such commissioners and the presence of two is required for a quorum.

    As a general matter, there is no “meeting” for FOIA purposes when one member of a governing body meets with an employee who is not a member. For example, discussions between a school board member and the superintendent of schools are not covered by the act. However, a series of meetings between the superintendent and each board member held for the purpose of making decisions out of the public eye violates the FOIA. Ark. Op. Att’y Gen. No. 2000-111. See also Harris v. City of Ft. Smith, 359 Ark. 355, 197 S.W.3d 461 (2004); Rehab Hosp. Servs. Corp. v. Delta-Hills Health Systems Agency, 285 Ark. 397, 687 S.W.2d 840 (1985).

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  • California

    Under the Brown Act, two or more people must be present to conduct a meeting. Wilson v. San Francisco Municipal Ry., 29 Cal. App. 3d 870, 878-79, 105 Cal. Rptr. 855 (1973). A majority of the members of a legislative body of a local agency constitutes a meeting under the Brown Act. Cal. Gov't Code § 54952.2(a).

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  • Colorado

    State. Under Colo. Rev. Stat. § 24-6-402(2)(a), all meetings attended by two or more members of any state board, commission, committee, or other body at which any public business is discussed or at which any formal action may be taken are declared public meetings open to the public at all times.

    Local Government. Under Colo. Rev. Stat. § 24-6-402(2)(b), all meetings of a quorum, or of three or more members of any local public body, whichever is fewer, at which any public business is discussed or at which any formal action may be taken are declared public meetings open to the public at all times.

    The former local government open meetings law simply declares that "all meetings" are open to the public, without specifying a required number in attendance. Colo. Rev. Stat. § 29-9-101(1) (Repealed 1991).

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  • Connecticut

    In Hauser v. City of New Haven, Do. #FIC 82-88 (Nov. 16, 1982), the FOIC held that when less than a quorum of a public agency met to discuss matters over which the public agency had supervision and control, that constituted a "meeting" despite the lack of a quorum. But see Windham v. FOIC.

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  • Delaware

    A quorum is the minimum number to be present to constitute a "meeting." The Act does not define what minimum number constitutes a "quorum." The number could be set by statute at a number greater than a majority. See Delaware Solid Waste Auth. v. News-Journal Co., 480 A.2d 628 (Del. 1984). A public body could be subject to the Act without a quorum if the body attempts to avoid the Act by meeting without a quorum. See Del. Op. Att'y Gen., No. 96-ib02 (Jan. 2, 1996). A gathering of members of a committee of a public body is a "public meeting" if a quorum of the committee is present. Del. Op. Att'y Gen., No. 02-ib33 (Dec. 23, 2002) ("If the public body has five members, and appoints a committee of three members, then a meeting of a quorum (two) members of the committee will be subject to FOIA.").

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  • District of Columbia

    A "quorum" of the members of a given public body must be present in order for a gathering to constitute a "meeting" subject to the Act.  D.C. Code Ann. § 2-574(1).

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  • Georgia

    The Act requires the gathering of a quorum, broadly defined.  O.C.G.A. § 50-14-1(a)(3)(A).  See, e.g., Claxton Enterprise v. Evans County Board of Commissioners, 249 Ga. App. 870, 549 S.E.2d 830 (2001); Jersawitz v. Fortson, 213 Ga. App. 796, 446 S.E.2d 206 (1994).

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  • Hawaii

    "'Meeting' means the convening of a board for which a quorum is required in order to make a decision or to deliberate toward a decision . . . ." Haw. Rev. Stat. § 92-2. The law is ambiguous on whether a quorum is required to constitute a meeting, although a board will usually be unable to conduct official business without a quorum. Haw. Rev. Stat. § 92-15 (1996) (requiring concurrence of majority absent statutory or other provision prescribing quorum).

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  • Idaho

    By definition, a governing body must consist of two or more members. Idaho Code § 74-202(5). The definition, therefore, squares with a common sense understanding that at least two members of the governing body must be present or participating to constitute a meeting.

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  • Illinois

    The Act defines "meeting" as "any gathering of a majority of a quorum of the members of a public body held for the purpose of discussing public business." 5 ILCS 120/1.02. For example, in a village governed by a commissioner form of government in which the village council comprises a mayor and four commissioners, the Illinois Attorney General has opined that a quorum would be three members, and a majority of that quorum would be two. See Op. Att'y. Gen. 005 (1996).

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  • Indiana

    A majority of the governing body of a public agency must be present. Ind. Code § 5-14-1.5-2(c). A governing body must contain two or more individuals. Ind. Code § 5-14-1.5-2(b).

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  • Iowa

    Yes, there must be a majority present. E.g., Iowa Code § 21.2(2); Gavin v. City of Cascade, 500 N.W.2d 729 (Iowa Ct. App. 1993) (finding no meeting had occurred where there was never a majority of the council present).

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  • Kansas

    Majority must be present. K.S.A. 75-4317a.  In 2009, the legislature addressed “serial meetings” i.e., communications involving less than a majority of the members of an agency, but which collectively resulted in at least a majority involvement.  Interactive communications now must be open if they 1) collectively involve a majority of the members; 2) share a common topic or discussions of the agency’s affairs; 3) are intended by any or all participants to reach agreement in a matter that would require binding action. K.S.A. 75-4318(f).

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  • Kentucky

    A meeting under Kentucky’s Open Meetings Act does not occur unless a quorum of the public agency is present: "All meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings . . . ." Ky. Rev. Stat. 61.810(1).

    Even a quorum may not constitute a meeting where the gathering was not called by the public agency but instead takes place at a convention or social event. See 95-OMD-136 (though quorum of city council members attended convention, this did not constitute public meeting; council members were not authorized to take action affecting city or to discuss matters affecting city).

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  • Louisiana

    A quorum – a simple majority of the total membership of a public body – must be present to constitute a "meeting." La. Rev. Stat. Ann. § 42:13(2) and (4). Thus, a gathering of a quorum of members at which business is discussed is subject to the Open Meeting Law, even if labeled an "informal supper meeting." Op. Att'y Gen. 96-207. Proxies may not vote and do not count in determining whether a quorum is present. Op. Att'y Gen. 00-204; Op. Att'y Gen. 93-708. A member may not vote via a video telephone. Op. Att'y Gen. 99-385. If the members rotate being present to avoid creating a quorum, such "walking quorums" are a violation of the Open Meeting Law. Op. Att'y Gen. 85-113. See also Op. Att'y Gen. 92-166 (law may not be circumvented "in any unannounced or secretive manner," including telephone contact among quorum to decide on a course of action). See also Op. Att'y Gen. 99-50 and 00-144 (there is no violation where less than an actual quorum of the public body or a committee of a public body meets where no decisions, votes, or other actions are taken).

    Recent opinions of the Attorney General have emphasized that the Open Meetings Law requires the physical presence of members of a public body at open meetings in order to participate in any matter. Any participation by telephone, whether to obtain a quorum or to allow voting by non-present board members is a violation of the law. Op. Att'y Gen. 02-0040; see also Op. Att'y Gen. 01-0256 (non-present board members cannot be counted by telephone to form a quorum or vote by voice or facsimile); Op. Att'y Gen. 00-423 (deliberation or act by teleconferencing would be a violation of the open meetings law).

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  • Maine

    The term “meeting” is not defined in the Act.  1 M.R.S.A. § 406.  If a body is subject to open meetings requirements, it generally must meet in public, regardless of the number of members actually present at a particular meeting. 1 M.R.S.A. § 406.  The Act applies to a gathering at which a quorum is present and the business of the body is discussed, even if not all members of the body have been notified or are present and the circumstances are informal.  A gathering of less than a quorum may also be deemed  meeting if “the transactions of any functions affecting any or all citizens of the State” are conducted.  1 M.R.S.A. § 402(2).  Some bodies have taken the position that a “meeting” cannot occur without a quorum, but the term “quorum” is not mentioned in the Act.  Other bodies have taken the position that a gathering of three or more members of a body or agency is a meeting because public notice is required of “a meeting of a body or agency consisting of 3 or more persons.”  1 M.R.S.A. § 406.  There are no exceptions for information gathering, fact finding, deliberations, advisory functions, workshops, or the like, and such activities do constitute the transaction of public business.

    A "Legislative Subcommittee," is defined as “3 or more Legislators from a legislative committee appointed for the purpose of conducting legislative business on behalf of the committee.”   1 M.R.S.A. § 402(1-A).

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  • Maryland

    A quorum must be present to constitute a meeting. § 3-101(g).

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  • Michigan

    By definition, a gathering of less than a quorum of a public body generally does not constitute a "meeting" within the meaning of the OMA and need not comply with the requirements set forth in the OMA.  2009 Op. Att'y Gen. No. 7235 (2009) Quorum is not defined in the act, so the dictionary definition is applicable; Black’s Law Dictionary defines a quorum as the minimal number of members (usually a majority of all of the members) who must be present for a deliberative assembly to legally transact business. 8th ed. p. 1284.

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  • Montana

    In order for a "meeting" to occur within the meaning of the Montana open meetings law a quorum must be present. Mont. Code Ann. § 2-3-202. However, a public body may not appoint any committee or subcommittee for the purpose of conducting business that is within the jurisdiction of the agency in order to avoid the constraints of the open meetings law. See Mont. Code Ann. § 2-3-203(5).

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  • Nevada

    To have a meeting, a quorum of the members of a public body must be present. NRS 241.015(5).

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  • New Hampshire

    A quorum is required but it may not exceed “a majority of the members of such body.” RSA 91-A:2,I.

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  • New Jersey

    Yes, as noted above, a quorum of the members of the public body must be present in order to constitute a meeting.

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  • New Mexico

    A quorum is required.  NMSA 1978 § 10-15-1(B).

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  • North Carolina

    A majority of the members of a public body must be present in order for an “official meeting” to occur. G.S. § 143-318.10(d).

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  • North Dakota

    Yes. A quorum of the members of the governing body of a public entity regarding public business must be present to meet the statutory definition of a “meeting.” N.D.C.C. § 44-04-17.1(9). Alternatively, less than a quorum of the members of the governing body of a public entity regarding public business may constitute a meeting, if the members attending one or more of such smaller gatherings collectively constitute a quorum and if the members hold the gathering for the purpose of avoiding the requirements of the open meetings law. N.D.C.C. § 44-04-17.1(9).

    A “quorum” is defined as one-half or more of the members of the governing body, or any smaller number if sufficient for a governing body to transact business on behalf of the public entity. N.D.C.C. § 44-04-17.1(15).

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  • Ohio

    A majority of the public body's members must be present in person for a "meeting" to exist. Ohio Rev. Code § 121.22(B)(2).

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  • Oklahoma

    A majority is required. Id. See also Monkey Island Development Authority v. Paul Staten, 2003 OK CIV APP 64, 76 P.3d 84 (rejecting a claim that a meeting violated the Act, stating "Without a majority, there could be no ‘meeting’ under the Act and no violation").  In a videoconference meeting, at least a quorum of the public body must be present at the posted meeting site.  25 O.S. § 307.1(A)

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  • Oregon

    Under ORS 192.610(5) a “meeting” is the convening of a governing body of a public body for which a quorum is required in order to make a decision or deliberate toward a decision on any matter. Therefore, a quorum – typically, a majority of members of the governing body – must be present in order to constitute a meeting. A “governing body” must contain “two or more members.” ORS 192.610(3); Indep Contrs Research Inst v. Dep’t of Admin Servs, 207 Or. App. 78 (2006).

    In Tri-Cty. Metro. Transp. Dist. of Oregon TriMet v. Amalgamated Transit Union Local 757, 362 Or. 484, 488 (2018), the Oregon Supreme Court rejected the argument that it was possible to have a governing body without a quorum requirement. Id. at 500 (“In other words, for every organized body, there is some minimum number of members that must participate in order for the body to be competent to transact business. Thus, every organized body has a ‘quorum.’”). The Court further opined that a majority of the governing body was the default quorum requirement for a body, citing ORS 174.130. However, the Court did not expressly decide whether a public body could establish a different quorum.

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  • Rhode Island

    The Rhode Island Supreme Court has interpreted the OML to require that a quorum must be present to constitute a meeting for purposes of the OML.  See e.g. Fischer v. Zoning Bd. of Town of Charlestown, 723 A.2d 294 (R.I. 1999).  A quorum is a simple majority unless otherwise defined by law.  R.I. Gen. Laws § 42-46-2(4).

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  • South Carolina

    A quorum must be present to have a "meeting" under the act. S.C. Code Ann. § 30-4-20(d).

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  • South Dakota

    A quorum must be present to constitute a "meeting."

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  • Tennessee

    Two or more people may constitute a meeting. T.C.A. § 8-44-102(b)(1)(A).

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  • Texas

    Every gathering of a quorum of a governmental body, no matter how informal, to deliberate public business must be held in public after proper notice. For example, in Acker v. Texas Water Comm’n, 790 S.W.2d 299 (Tex. 1990), the Texas Supreme Court held that the Act’s requirement, that all “meetings” should be open to the public, is violated if two members of a three-member commission discuss a contested public issue while in a restroom. “When a majority of a public decision-making body is considering a pending issue, there can be no ‘informal’ discussion. There is either formal consideration of a matter in compliance with the . . . Act or an illegal meeting.” Id. at 300.

    However, even without a quorum of the governing body, a committee of a governmental body may be subject to the Act if the committee supervises or controls public business or policy. Willmann, 123 S.W.3d at 478; Tex. Att’y Gen. Op. No. LO 97-058 (1997). The Fort Worth Court of Appeals departed from this rule in Tarrant Reg’l Water Dist. v. Bennett, 453 S.W.3d 51, 57-58 (Tex. App.—Fort Worth 2014, pet. denied) (“The legislature could not have been more clear. While a board’s meetings must be conducted in accordance with TOMA, meetings of the board’s committees in which less than a quorum of the board is present are not subject to TOMA’s open-meetings requirements.”)

    The attorney general has also opined that a city council member violates the Act when he telephones individually a quorum of the council members to express his views about public business that has not been formerly considered by the council in an open session. Tex. Att’y Gen. Op. No. LO-95-055 (1995).

    The Act applies to so-called walking quorums, where members of a governmental body intentionally meet in a series of small groups to avoid triggering the Act, but the aggregate number of members consulted adds up to a quorum. See Tex. Att’y Gen. Op. GA-326 (2005); see also Foreman v. Whitty, 392 S.W.3d 265, 277 (Tex. App.—San Antonio 2012, no pet.).

    Pursuant to Section 551.0415, however, a quorum of the governing body of a municipality may receive from municipal staff and a member of the governing body may make a report about items of community interest during a meeting of the governing body without having given notice of the subject of the report as required by this subchapter if no action is taken and, except as provided by Section 551.042, possible action is not discussed regarding the information provided in the report.

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  • Utah

    For a meeting to convene, a quorum must be present. See Utah Code § 52-4-103(6)(a). “Quorum” is defined in the Open Meetings Act as “a simple majority of the membership of a public body, unless otherwise defined by applicable law.” Id. § 52-4-103(11)(a). “‘Quorum’ does not include a meeting of two elected officials by themselves when no action, either formal or informal, is taken on a subject over which these elected officials have advisory power.” Id. § 52-4-103(11)(b).

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  • Vermont

    The Open Meeting Law defines a meeting as “a gathering of a quorum of the members of a public body for the purpose of discussing the business of the public body or for the purpose of taking action.”  1 V.S.A. § 310(3)(A).  A quorum of the members of a public body may, however, participate in the meeting via electronic means.  1 V.S.A. § 312(a)(2)(D).  If, however, a quorum or more of the members of a public body attend a meeting without being physically present at a designated meeting location, “[a]t least one member of the public body, or at least one staff or designee of the public body, shall be physically present at each designated meeting location” identified on the agenda.  Id.

     

    The statute also provides that a gathering of a quorum of a public body does not constitute a “meeting” when they “attend[] social gatherings, conventions, conferences, training programs, press conferences, media events, or otherwise gathers, provided that the public body does not discuss specific business of the public body that, at the time of the exchange, the participating members expect to be business of the public body at a later time” or attend “a duly warned meeting of another public body, provided that the attending public body does not take action on its business.”  Id. at §§ 310(3)(C)-(D).

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  • Virginia

    Three members, or a quorum if less than three. Va. Code Ann. § 2.2-3701 (definition of “meeting”).

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  • Washington

    If a majority of the governing body or a quorum are engaged in deliberations or other action, the meeting is subject to the OPMA. Eugster v. City of Spokane, 128 Wn. App. 1, 114 P.3d 1200 (2005).

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  • West Virginia

    A meeting is defined as "the convening of a governing body of a public agency for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter which results in official action." The term "meeting” does not include:

    (A) Any meeting for the purpose of making an adjudicatory decision in any quasi-judicial, administrative or court of claims proceeding;

    (B) Any on-site inspection of any project or program;

    (C) Any political party caucus;

    (D) General discussions among members of a governing body on issues of interest to the public when held in a planned or unplanned social, educational, training, informal, ceremonial or similar setting, without intent to conduct public business even if a quorum is present and public business is discussed but there is no intention for the discussion to lead to an official action; or

    (E) Discussions by members of a governing body on logistical and procedural methods to schedule and regulate a meeting."

    W. Va. Code § 6-9A-2(4). Subsections (D) and (E) were added by the 1999 amendments.

    "Quorum" is defined as "a simple majority of the constituent membership of a governing body." W. Va. Code § 6-9A-2(7). In Appalachian Power Co. v. Public Service Commission, 162 W. Va. 839, 253 S.E.2d 377 (1979), the West Virginia Supreme Court interpreted these two provisions to mean a meeting is subject to the Open Meetings Act only if the convening is for the purpose of making a decision or deliberating toward a decision, and if some statute or rule requires a quorum as a prerequisite to convening. However, while the court's opinion in McComas clearly broadened the definition of "meeting," the continued viability of McComas' interpretation of the breadth of the term "meeting" is questionable. The new definition most certainly narrows the scope of the term from that identified in McComas, 197 W. Va. 88, 475 S.E.2d 280 (1996).

    Also, the quorum requirement need not be explicit. In Common Cause v. Tomblin, 186 W. Va. 537, 413 S.E.2d 358 (1991), the court reviewed the state Legislature's process of preparing an annual "budget digest," which by statute must be "prepared at the direction of and approved by members of the conferees committee on the budget." The court held the statute "contemplates preparation of the Budget Digest by the entire Conferees Committee on the Budget (or a quorum thereof)," and that the process therefore must comply with the Open Meetings Act. Id.

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  • Wyoming

    In 1995, the Wyoming Legislature clarified what constituted a meeting by writing a new definition under 16-4-402(a)(iii), which states:

    "Meeting" means an assembly of at least a quorum of the governing body of an agency which has been called by proper authority of the agency for the purpose of discussion, deliberation, presentation of information or taking action regarding public business. Id.

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