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b. Are certain executive functions covered?

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  • Alaska

    It is only "meetings" of those governed by the OMA that are within the coverage of the OMA. Staff meetings or other gatherings of the employees of a public entity are exempt. AS 44.62.310(d)(6). Conduct of individuals, as such, whether it be individual board or commission members meeting with a constituent or lobbyist, or the governor or mayor exercising a veto or signing legislation, is not subject to the provisions of the Open Meetings Act. However, if an official were serving as a member of a body, then his or her conduct as such would be subject to the act. A hypothetical was raised during a committee hearing on revisions to the OMA in 1994 about the effect of the mayor of a city or borough assembly serving as an ex officio member, who can vote only to break a tie. The question posed was whether the presence of the mayor, along with three of the six regular voting members of an assembly, would constitute a meeting under the definition which requires "more than three or a majority, whichever is less." Legislators considering the bill, including the most vigorous opponents of liberal public access, agreed that this hypothetical gathering would, and should, be considered a meeting, consistent with the general rule that doubtful cases should be resolved in favor of openness.

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  • Arizona

    (This section is blank. See the point above.)

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  • Arkansas

    The mayor is considered a member of the city council for FOIA purposes. Ark. Op. Att’y Gen. Nos. 97-057, 96-067, 95-227.

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  • California

    Where a member of a state body, in his or her official capacity, sits as a member of a board, commission, committee or similar multimember body, the Bagley-Keene Act also applies to that body if it receives funds from the state body, regardless of whether the body is organized and operated by the state body or by a private corporation. Cal. Gov't Code § 11121(d).

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  • Colorado

    The Sunshine Law expressly applies to all meetings of two or more members of any state agency or committee thereof. Colo. Rev. Stat. § 24-6-401(2)(a). See, e.g., Hyde v. Banking Bd., 38 Colo. App. 41, 552 P.2d 32 (1976).

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  • Connecticut

    (This section is blank. See the point above.)

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  • Delaware

    When an executive official delegates any of his or her decision-making authority to a group of individuals, FOIA might apply because the group may amount to a "committee" appointed by an executive body. Del. Op. Att'y Gen., No. 01-ib15 (Oct. 23, 2001).

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  • District of Columbia

    The Act does not restrict its application only to certain executive functions.

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  • Georgia

    Executive branch agencies and officials are subject to the Act.  O.C.G.A. §§ 50-14-1(a); 50-14-6.

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  • Hawaii

    The law covers any attempt by a board to decide on or deliberate about matters over which the board is allowed to exercise supervision, control, jurisdiction or on which it renders advice. See Att'y Gen. Op. No. 86-19 (Sept. 2, 1986) (holding that an OHA meeting potentially involving disciplinary actions against trustees was subject to Sunshine Laws).

    A 1996 amendment deleted a provision in Haw. Rev. Stat. § 92-5(b) stating that the law does not apply to chance meetings, defined as "social or informal assemblage[s] of two or more members [of a board] at which matters relating to official business are not discussed." Haw. Rev. Stat. § 92-2. It prohibits use of "chance meetings . . . or electronic communication . . . to circumvent the spirit or requirements of [the law] to make a decision or to deliberate toward a decision upon a matter over which [a] board has supervision, control, jurisdiction, or advisory power." id. § 92-5(b) (Supp. 1999); Att'y Gen. Op. No. 86-19, at 2 (Sept. 2, 1986) (citing Haw. Rev. Stat. § 92-5(b)).

    The wording of the statute may create a technical loophole in cases where a board or so-called board might attempt to decide or deliberate on a matter not within its jurisdiction. In such cases, because the board lacks jurisdiction, the public may impliedly be denied access to the board meeting or minutes with the result that agencies attempting to act outside of their jurisdiction may be able to circumvent public accountability for doing so. Consequently, although the board's actual or so-called actions might lack official weight, any discussion and/or decisions reached at such a meeting may be the actual basis for later or related action, thus facilitating avoidance of public scrutiny and meaningful participation of the public in government.

    This kind of situation arose in 1978 when seven newly elected Democratic Honolulu City Council members met "informally" to consider leadership and committee assignments six weeks before the official swearing in. Corporation Counsel opined that the "individuals who were in attendance at the informal assemblage can close its meeting to the public as well as the media because it was not a meeting of a duly constituted council and therefore not subject to . . . the State Sunshine Law." Honolulu Corp. Counsel Op. (Nov. 20, 1978); cf. Att'y Gen. Op. No. 90-7 (Sept. 12, 1990) (allowing consulting "subcommittees" of advisory board to operate outside the law). But see Haw. Rev. Stat. §§ 92-1(2), (3) (calling for liberal construction of provisions requiring open meetings and strict construction regarding the provisions allowing closed meetings).

    In contrast, the Sunshine Law may require that the public be given access to internal agency meetings. In response to a letter from the Sunshine Law Coalition, the Corporation Council stated that "it is unquestionable that the provisions of Chapters 91 and 92 . . . are applicable to the activities of the City government . . . ." Honolulu Corp. Counsel Letter (Jan. 20, 1983). Corporation Counsel agreed that a committee meeting of the City Council to consult with its non-legal staff must be open to the public. Id.; accord Applicability of the State Sunshine Law to the County Councils and the Presentation of Oral or Written Testimony on Agenda Items, Att'y Gen. Op. No. 86-5 (Feb. 10, 1986).

    In 1996, the Hawaii legislature authorized private communications between two or more members of a board under certain circumstances. See Haw. Rev. Stat. § 92-2.5 (Supp. 1999). Section 92-2.5 permits two members of a board to discuss between themselves matters related to official board business, provided that either no commitment to vote is made or sought, and a quorum is not achieved. Haw. Rev. Stat. § 92-2.5. Among the other permitted interactions, discussions between the governor and one or more members of a board may be conducted in private without limitation or subsequent reporting, so long as the discussion does not relate to a matter which the board is adjudicating. Haw. Rev. Stat. § 92-2.5(f).

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  • Idaho

    Although elected officials are excluded when acting in their official individual capacities, many officials are statutory members of other public bodies. For instance, the governor, attorney general, secretary of state, superintendent of public instruction, and state auditor are all members of the State Board of Land Commissioners (“Land Board”), which makes policy decisions concerning the use and/or transfer of state owned lands. See Idaho Code § 58-101 et seq. The Land Board acting as a governing body of a public agency is subject to the Idaho Open Meeting Law.

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  • Illinois

    The Act does not exempt specific executive functions.

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  • Indiana

    All executive functions are covered, as the Open Door Law does not distinguish among them. See Ind. Code § 5-14-1.5-2(a).

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  • Iowa

    No statutory provision limits application to specified executive functions such as serving on city council, voting to break a tie, or exercising a veto.

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  • Kansas

    A mayor who breaks a tie vote is not a member of the council voting unless expressly made a member by statute. Kan. Att’y Gen. No. 1986-110.

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  • Kentucky

    "State and local cabinet meetings and executive meetings" are exceptions to the Open Meetings Act, allowing such meetings to be held in closed session. Ky. Rev. Stat. 61.810(1)(h).

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  • Louisiana

    Executive functions such as serving on city council, voting to break a tie, or signing or vetoing legislation, are covered only when they occur in the context of a meeting of a public body which is otherwise covered.

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  • Maine

    The Act apples to the “transactions of any functions affecting any or all citizens of the State” by the bodies designated by the Act.  Any board or commission of any state agency or authority is subject to the Act.  1 M.R.S.A. §402(2)(B).

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  • Maryland

    The Act generally does not apply to a public body when it exercises an administrative function. § 3-103(a)(1)(i). The term "administrative function" means the administration of a state, county, or local law, or a rule, regulation, or bylaw of a public body. § 3-101(b)(1); see also Dyer v. Bd. of Educ., 216 Md. App. 530, 538 (2014) (administering a law can include applying existing regulations to a particular set of facts to resolve a complaint). Administrative function does not include an advisory, judicial, quasi-judicial, legislative, or quasi-legislative function. § 3-101(b)(2). However, if the body is considering granting permits or licenses or is considering zoning matters, the function is within the scope of the Act. § 3-103(b); see also Tuzeer v. Yim, LLC, 201 Md. Appl 443 (2011) (regarding use permit); Handley v. Ocean Downs, LLC, 151 Md. App. 615 (2003) (regarding special exception). The former Act did not expressly include these specific functions. See also Compliance Board Opinion 01-07, 28:11 Md. Reg. 1015 (May 8, 2001) (the mere existence of a law does not mean that every action pursuant to that law is an "administrative function." Rather, the action must be administrative in character as opposed to policy-making to qualify).

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  • Massachusetts

    If the mayor, police chief, school superintendent, or other public official is a member of the City Council or School Committee or other multi-member body, that body remains subject to the Open Meeting Law.  However, the law would not extend to functions the mayor or other official performs alone.

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  • Montana

    Only when the executive makes decisions through a body or collection of other decision makers.

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  • New Hampshire

    Yes, the Statute applies to the Governor acting together with the Governor's Council as well as the Governor's Council alone, including any advisory committee established by either the Governor or the Governor's Council, as well as any state public body. RSA 91-A:1-a,VI(b).

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  • New Jersey

    When an executive acts as a part of a public body, such as a mayor serving on a city council, the executive's functions in this respect are subject to OPMA. N.J.S.A. 10:4-8.

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  • New Mexico

    Any and all officials as part of a quorum of a board, commission, administrative adjudicatory body, or other policymaking body of any state, county or city, district or other political subdivision are covered.  NMSA 1978 § 10-15-1(B).  Executive privilege in New Mexico can only apply to “communications” because the privilege exists solely to protect the executive's “access to candid advice.”  In Republican Party of New Mexico v. New Mexico Taxation & Revenue Dep't, ¶¶ 43-46, 2012-NMSC-026, 283 P.3d 853.

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  • North Carolina

    Provided the body is exercising a legislative, policy-making, quasi-judicial, administrative, or advisory function, the body is covered by the Open Meetings Law.

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  • Ohio

    No functions peculiar to the executive branch are excluded or included.

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  • Oklahoma

    Any meeting between the Governor and a majority of members of any public body is covered. 25 O.S. § 308.

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  • Oregon

    No, except as the executive is involved in a meeting of a governing body with a quorum which is making a decision or deliberating toward a meeting.

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  • Rhode Island

    There is no limitation as to executive functions involved.  The OML covers all public bodies which “convene” to discuss or act upon any matter over which the public body has “supervision, control, jurisdiction, or advisory power”.  R.I. Gen. Laws § 42-46-2(1).

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  • South Carolina

    A meeting is the convening of a quorum of the constituent membership of a public body, so an executive branch agency such as a commission or board would meet when a quorum of the commissioners or board members gathered. A recent Supreme Court decision, Quality Towing Inc. v. City of Myrtle Beach, 547 S.E.2d 862 (S.C. 2001, made clear the application of the act to advisory committees appointed by executive branch bodies.)

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  • South Dakota

    Particular executive functions are not specified.

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  • Tennessee

    The Governor’s Commission for Judicial Appointments for Purposes of Filling Vacancies in the Trial and Appellate Courts in Tennessee is exempt because the Act states that it “shall not apply to … the governor." Durham v. Haslam, 2016 Tenn. App. LEIX 236 (Oct. 20, 2016)

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  • Texas

    Any deliberation between a quorum of members of a governmental body at which any public business or public policy is discussed must be open. See the general language of Section 551.002 and the definition of “meeting,” in Section 551.001(4).

    In Tex. Att’y Gen. Op. No. JM-1127 (1989), the Attorney General was asked if the Act is violated when a quorum of one commission attends a meeting of a separate body it created that is managed by its own board of directors. The Attorney General advised that “[m]ere physical presence of a quorum . . . in the same room without such deliberations does not establish a meeting” within the Act. Tex. Att’y Gen. Op. No. JM-1127 (1989). However, if the commission members “deliberate,” their attendance before the board will be a meeting of the commission. The Attorney General further warned that “[i]ndirect deliberations would occur when . . . commissioners speak to the . . . board in turn, addressing to it remarks intended for the other commissioners.” Id. at 6. Although Section 551.001(4)’s definition of “meeting” discusses a “deliberation between a quorum of a governmental body,” the Attorney General has advised that subcommittees including even a single member of a governmental body may be subject to the Act if the subcommittee discusses public business or policy over which the parent body has supervision or control. Tex. Att’y Gen. Op. No. JM-1072 (1989). An appellate court has also concluded that the Act applies to committees and subcommittees that supervise and control the parent governmental body’s public business or make recommendations that the governmental body routinely rubber-stamps. Willmann v. City of San Antonio, 123 S.W.3d 469, 478 (Tex. App.—San Antonio 2003, pet. denied) (“a governmental body does not always insulate itself from [the Act’s] application simply because less than a quorum of the parent body is present”).

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  • Vermont

    Yes.  The Open Meeting Law requires that “[a]ll meetings of a public body . . . be open to the public at all times.”  1 V.S.A. § 312(a).  A meeting is defined 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.”  Id. at § 310(3)(A).  Public bodies are defined as “any board, council or commission of the state or one or more of its political subdivisions, any board, council or commission of any agency, authority or instrumentality of the state or one of its political subdivisions, or any committee of any of the foregoing boards, council or commissions, except that ‘public body’ does not include “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).

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  • West Virginia

    (This section is blank. See the point above.)

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  • Wyoming

    Any action taken as part of a "governing body" is covered. Id.

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