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b. Deliberation toward decisions

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  • Alabama

    All deliberations toward decisions must be in open meeting, except that a governmental body may hold an executive (closed) meeting to deliberate and discuss evidence or testimony presented during a public or contested case hearing and vote upon the outcome of the proceeding or hearing if the governmental body is acting in the capacity of a quasi-judicial body, and either votes upon its decision in an open meeting or issues a written decision which may be appealed to a hearing officer, an administrative board, court or other body which has the authority to conduct a hearing or appeal of the matter which is open to the public. Ala. Code § 36-25A-7(a)(9); Guice v. Cherokee Cty. Bd. of Ed., CV 2009-086 (Cir. Ct. of Cherokee County, Ala, Aug. 25, 2010) (holding that the signing of resolutions by individual board members where quorum was present constituted a closed meeting in violation of the Alabama Open Meetings Act); Op. Att’y Gen. Ala., 2011-014 (board members can meet at and deliberate during an open meeting of a committee of the board when quorum of the full board is present).

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  • Alaska

    The Alaska Supreme Court has said that coverage of the Open Meetings Act extends to "every step of the deliberative and decision-making process when a governmental unit meets to transact public business." Brookwood Area Homeowners Ass'n, 702 P.2d at 1323. "Modern public meetings statutes reject the argument that only the moment of ultimate decision must be subject to public scrutiny, and require that preliminary deliberations be open as well." University of Alaska v. Geistauts, 666 P.2d at 428 n. 6.

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  • Arizona

    “Deliberations” are expressly included.  A.R.S. §§ 38-431(4); 38-431.01(A).

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  • Arkansas

    Deliberations of the governing body must be held in public, since the FOIA entitles the public to learn not only of action taken on particular matters, but also the reasons for such action. Ark. Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975); Ark. Op. Att’y Gen. Nos. 91-175, 80-016. The FOIA reaches every step in the decision-making process, not simply the point at which the decision is announced. Ark. Op. Att’y Gen. No. 95-098. One member of the quorum contacting other members to ensure that they understand the meeting agenda is not considered to be deliberations subject to the FOIA. Ark. Okla. Gas Corp. v. MacSteel Div. of Quanex, 370 Ark. 481, 262 S.W.3d 147 (2007).

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  • California

    Deliberations toward decisions are not specifically exempted from the Bagley-Keene Act and are therefore subject to the requirements of the Act.

    The Brown Act specifically states that the deliberation of a legislative body during a meeting is subject to the Act. Cal. Gov't Code § 54952.2(a). See also 216 Sutter Bay Ass'n v. County of Sutter, 58 Cal.App.4th 860, 877, 68 Cal.Rptr.2d 492 (1997); Frazer v. Dixon Unified Sch. Dist, 18 Cal. App. 4th 781, 796, 22 Cal. Rptr. 2d 641 (1993); Sacramento Newspaper Guild v. Sacramento County Bd. of Supervisors, 263 Cal. App. 2d 41, 47-48, 69 Cal. Rptr. 480 (1968) (superseded by statute on the issue of attorney-client privilege).

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  • Colorado

    Executive sessions may be held to conduct deliberations only on a matter that is expressly exempt from the Open Meetings law; all other "deliberations" must occur at a public meeting. See Bagby v. School Dist. No. 1, 186 Colo. 428, 528 P.2d 1299 (1974) (holding that the Open Meetings Law is designed to avoid mere "rubber stamping" in public decisions that are effectively made in private, since the public is entitled to know "the discussions, the motivations, the public arguments and other considerations which led to the discretion exercised . . .");

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  • Connecticut

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

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  • Delaware

    All meetings of a public body for the purpose of discussing or taking action on public business are open to the public unless subject to a specific exemption. 29 Del. C. § 10004(a). The deliberative process does not exist. Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994). FOIA does not allow "straw polling," nor does it allow public bodies to reach "consensus votes" that they strive later to ratify in a public meeting. Del. Op. Att'y Gen., No. 05-ib29 (Oct. 13, 2005).

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  • District of Columbia

    The Open Meetings Act applies to meetings involving deliberations over public business.  D.C. Code Ann. § 2-574(1).

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  • Georgia

    Deliberative sessions are not generally exempt from the Act. O.C.G.A. § 50-14-1(a)(3)(A).

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  • Hawaii

    A meeting of the board to make decisions or deliberate toward a decision upon a matter that is within the board's purview must be open to the public. Haw. Rev. Stat. §§ 92-2, 92-3.

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  • Illinois

    The public policy provision of the Act states that it is the intent of the Act that public bodies' actions "be taken openly and that their deliberations be conducted openly." 5 ILCS 120/1.

    1) Telephone conference calls. The Act defines a “meeting” as “any gathering, whether in person or by video or audio conference, telephone call, electronic means (such as, without limitation, electronic mail, electronic chat, and instant messaging), or other means of contemporaneous interactive communication.” 5 ILCS 120/1.02. The Illinois Appellate Court, Fourth District, has held that conducting a meeting by telephone conference does not, by itself, violate the Act. See Freedom Oil Co. v. Illinois Pollution Control Board, 275 Ill. App. 3d 508, 655 N.E.2d 1184, 211 Ill. Dec. 801 (1995). Public bodies must fully comply with all requirements of the Act, whether their meetings are held in person or by telephone. Id. This simply means that the press and the public can attend conference call meetings.

    2) Nature of discussion. The discussion of public business cannot be disguised by declaring that the meeting is for other purposes. For example, in People ex rel. Difanis v. Barr, 83 Ill. 2d 191, 414 N.E.2d 731, 46 Ill. Dec. 678 (Ill. 1980), nine members of a 15-member city council met an hour and a half before a regularly scheduled meeting for the ostensible purpose of holding a party caucus prior to the council meeting. However, council business was discussed at the meeting. The court concluded that this violated the Act, which it found was intended to apply to more than official meetings of full bodies or duly constituted committees. See Difanis, 83 Ill. 2d at 200, 414 N.E.2d at 735, 46 Ill. Dec. at 682.

    A meeting of a re-elected mayor, a re-elected commissioner and three newly elected, but unsworn, village commissioners to discuss appointments to city offices that could only be made after the new council members assumed office was a meeting subject to public notice requirements of the Act, in the opinion of the Illinois Attorney General. See Op. Att'y. Gen. 005 (1996). As the public body was governed by a mayor and four commissioners, a quorum was three members. See id. The re-elected mayor and the re-elected commissioner thus constituted a majority of a quorum, and since the meeting failed to satisfy the Act's notice requirements, the meeting violated the Act. See id

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  • Indiana

    Deliberations are considered official action. Ind. Code § 5-14-1.5-2(d)(2). The statute defines “deliberate” as “a discussion which may reasonably be expected to result in official action.” Ind. Code § 5-14-1.5-2(i); see Turner v. Town of Speedway, 528 N.E.2d 858, 862 (Ind. Ct. App. 1988) (holding that an “breakfast gathering” in which commissioners discussed applicants after an interview session was a meeting because they deliberated).

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  • Iowa

    The statute covers "deliberation or action" of public bodies. Iowa Code § 21.2(2)(emphasis added). Deliberation connotes discussion and evaluation. 79 Op. Att'y Gen. 164, 166 (May 16, 1979).

    "The statute only applies to a gathering of a majority of the members of a governmental body . . . . Activities of a governmental body's individual members to secure information to be reported and acted upon at an open meeting ordinarily do not violate the statute. " Gavin v. City of Cascade, 500 N.W.2d 729, 732 (Iowa Ct. App. 1993) (citing Wedergren v. Bd. of Dirs., 307 N.W.2d 12, 18 (Iowa 1981); Tel. Herald Inc. v. City of Dubuque, 297 N.W.2d 529, 534 (Iowa 1980)). Similarly, the court in Fleener v. City of Oskaloosa held that a city, county, mayor, and respective board and council members did not violate the Iowa Open Meetings law when each met or conversed with a board member in order to sign a letter. No. 09-0230, 2009 WL 4115658 (Iowa Ct. App. Nov. 25, 2009). The individual in charge of sending a letter to a neighboring city about constructing an airport contacted board and council members individually to obtain their signatures. Id. at *2. The court rejected the plaintiff’s claim that the separate phone calls and e-mails amounted to serial communication resulting in deliberation. Id. at *4-5. Moreover, the court noted there was no evidence that any deliberation or action that would constitute a meeting occurred in the contacts between the various board and council members. Id.

    In Dooley v. Johnson County Board of Supervisors, the court found there was no meeting where deliberations did not occur. No. 08-0915, 2008 WL 5234382, at *5 (Iowa Ct. App. Dec. 17, 2008). The meetings in this case sought “feedback, opinions, and input from the members on the draft” but there was substantial evidence that no deliberation occurred. Id.

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  • Kansas

    These are subject to the Act. Coggins v. Public Employee Relations Board, 2 Kan. App. 2d 416, 581 P.2d 817 (1978); Kan. Att’y Gen. Op. 1980-197.  Deliberations by administrative bodies that are authorized by law to exercise quasi-judicial functions when such bodies are deliberating matters relating to a decision involving such quasi-judicial functions, are not open.  K.S.A. 75-4318(g)(1).

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  • Kentucky

    Deliberations are covered by the Open Meetings Act unless specifically excluded under Ky. Rev. Stat. 61.810(1).

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  • Louisiana

    The definition of meeting includes the convening of a public body "to deliberate." La. Rev. Stat. Ann. § 42:13(2). The Louisiana Constitution also states, "[n]o person shall be denied the right to observe the deliberations of public bodies . . . except in cases established by law." art. XII, § 3 (emphasis added). "Deliberation" is broadly construed to include any discussion of the business of a public body. See, e.g., Op. Att'y Gen. 91-339 (board retreat in Arizona to plan future of public hospital).

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  • Maine

    Deliberations must occur in public. See 1 M.R.S.A. § 405(6) (permitting “[d]eliberations on only” certain delineated matters in executive session).

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  • Maryland

    In 1991, emphasis shifted away from what functions are covered by the Act to what functions are not within its scope. All public bodies are required to meet in open session unless they are performing administrative, judicial or quasi-judicial functions. § 3-103(a). This, in effect, leaves the legislative, quasi-legislative or advisory functions of public bodies subject to the Act. See §§ 3-101, 3-103.  Note, however, that the Attorney General has opined that certain statutory provisions duplicative of the Act may be repealed as part of code revision without effecting a substantive change in the law; however, any such provision that states "no ordinance, resolution, rule, or regulation shall be finally adopted at [a meeting not open to the public]" should be retained.  94 Op. Att'y Gen. 161 (2009).

    The public has the right to observe the deliberative process and the making of decisions by a public body at open meetings. § -3-102; City of New Carrollton v. Rogers, 287 Md. 56, 410 A.2d 1070 (1980); cf., Suburban Hospital Inc. v. Maryland Health Resources Planning Comm'n, 125 Md. App. 579, 726 A.2d 807 (1999), vacating as moot, 364 Md. 353, 772 A.2d 1239 (2001) (hospital advised sufficient evidence to withstand motion for summary judgment made on the basis that there had been no violation of the Act); see also 65 Op. Att'y Gen. 396 (1980) (Thoroughbred Racing Board meeting to decide whether to permit Sunday racing was quasi-legislative function subject to access); 65 Op. Att'y Gen. 208 (1979) (decision by the State Lottery Commission to increase prize payout to daily lottery winners constituted an exercise of a legislative function under the Act).

    Regardless of functional label, any deliberative process concerning the granting of a license or permit or regarding a zoning matter shall be within the scope of the Act's requirements. § 3-103(b); see also Wesley Chapel Bluemount Ass'n v. Baltimore County, 347 Md. 125, 147, 699 A.2d 434, 445 (1997) (discussing the scope of the phase "other zoning matter" as used in the Act, and holding that zoning board's deliberations of a development plan were subject to the Act).

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  • Massachusetts

    At state level, quasi-judicial bodies sitting on adjudicatory matters may deliberate in private. G.L. c. 30A, § 11A, definition of "governmental body." Otherwise and subject to general provisions on executive sessions, deliberations must be public including those of county or municipal level quasi-judicial bodies. Yaro v. Board of Appeals of Newburyport, 10 Mass. App. Ct. 587, 410 N.E.2d 725 (1980) (local zoning board of appeals must deliberate in public). Because of special statutes, a school committee may deliberate in private when deciding teacher disciplinary cases. O'Sullivan v. School Committee of Worcester, 411 Mass. 123, 579 N.E.2d 160 (1991). Deliberations of governmental bodies are subject to the law whether or not the discussions culminate immediately in an official vote. Gerstein v. Superintendent Search Screening Committee, 405 Mass. 465, 469-70, 541 N.E.2d 984, 986-87 (1989).

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  • Montana

    Except for privacy rights, the Montana open meetings law and Constitution do not differentiate on the basis of subject matter to be discussed in determining whether a meeting shall be open.

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  • Nebraska

    These should be covered by the Open Meetings Act. See above ("discussion of public business" and "formation of tentative policy").

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  • Nevada

    Deliberations toward decisions are subject to the OML, even if they are informal.  NRS 241.015(3); Op. Nev. Att’y Gen. No. 241; Op. Nev. Att’y Gen. No. 380 (Jan. 1, 1967).

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  • New Hampshire

    Such deliberations are open to the public unless they address a matter that may be considered in nonpublic meeting. See RSA 91-A:3.

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  • New Jersey

    Since the law applies to both discussions and actions by a public body, deliberations toward decisions must be open to the public and subject to the other requirements of OPMA. See Allan-Deane Corp. v. Bedminster Twp., 153 N.J. Super. 114, 379 A.2d 265 (App. Div. 1977); South Harrison Township Committee v. Board of Chosen Freeholders, 210 N.J. Super. 370, 510 A.2d 42 (App. Div. 1986.

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  • New Mexico

    These are subject to the Open Meetings Act.  NMSA 1978 § 10-15-1(B).

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  • North Carolina

    Covered, unless exempted by the closed session provisions.

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  • North Dakota

    Subject to the law.

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  • Ohio

    All prearranged discussions of public business of a public body by a majority of its members are subject to the statute's requirement of open meetings. Ohio Rev. Code § 121.22(B)(2), (C). This requirement includes "deliberations," and the statute's preamble states that the statute should be liberally construed "to require public officials . . . to conduct all deliberations upon official business only in open meetings." Ohio Rev. Code § 121.22(A).

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  • Oklahoma

    The Act defines a meeting as the “conduct of business.”  The Oklahoma Attorney general has opined that “conduct of business” includes the entire decision-making process including deliberation, decision or formal action.  1982 OK AG 212.  Later opinions concluded that “conduct of business”  would include discussions in which the members of the public body are considering information that will aid them I their decision-making, even though those discussions do not necessarily effectively predetermine their official actions.  2012 OK AG 24.     When a majority of commissioners of the Corporation Commission are present at the same time in a hearing conducted by an administrative law judge, the hearing is subject to the Act because they are engaged in the conduct of business.  Id.

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  • Oregon

    Deliberations (e.g., fact finding or “work sessions”) toward decisions are specifically covered by the Public Meetings Law. ORS 192.610(5).

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  • Pennsylvania

    “Deliberation” is “the discussion of agency business held for the purpose of making a decision.” Ackerman v. Upper Mt. Bethel Twp., 567 A.2d 1116, 1118 (Pa. Commw. Ct. 1989) (holding that private conference among three members of township board of supervisors concerning amendment to zoning ordinance was “deliberation” on agency business, even though no official action was taken). One court has distinguished between “deliberation,” which must be open, and “discussion,” which need not be open. See Conners v. W. Greene Sch. Dist., 569 A.2d 978 (Pa. Commw. Ct. 1989), appeal denied, 581 A.2d 574 (Pa. 1990) (finding that apparent discussion among some school board members during recess in a public budget proposal meeting did not constitute a violation of the Sunshine Act since there is a “substantial difference between discussion and deliberation”). “Agency business” is the framing, preparation, making, or enactment of laws, policy or regulations; the creation of liability by contract or otherwise; or the adjudication of rights, duties and responsibilities, but not including administrative action.

    In Ackerman v. Upper Mt. Bethel Twp., supra, the court found that an ad hoc meeting on a proposed zoning amendment concerned “agency business.” The Task Force to Address Residents’ Concerns of the Solid Waste Disposal Facility in York Newspapers, Inc. v. Springettsbury Township, (York Ct. C.P., August 15, 1990) (unpublished opinion) did not engage in “deliberations” since it merely made nonbinding recommendations to the Township supervisors and it was the supervisors who would then formulate policy in open meetings. In League of Women Voters v. Pennsylvania, 683 A.2d 685 (Pa. Commw. Ct. 1996), the court held that “the mere preparation of a written report prior to the public meeting” do not qualify as “deliberations” for purposes of bringing a claim for violation of the Sunshine Act.

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  • South Carolina

    Some deliberations, such as whether to dismiss an employee, may be held in a meeting closed to the public, but the decision has to be made in an open meeting and the specific purpose for closing the meeting muse be stated. S.C. Code Ann. § 30-4-70.

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  • South Dakota

    These deliberations are subject to the law.

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  • Tennessee

    The Act covers meetings to deliberate toward a decision on any matter. The Act, however, does not require the members of the public body to verbalize or discuss a matter before a vote. Baltrip v. Norris, 23 S.W.3d 336, 341 (Tenn. Ct. App. 2000). Chance meetings of two (2) or more members of a public body are not to be considered meetings, but such chance meetings, informal gatherings, or electronic communications cannot be used to circumvent the spirit or requirement of the Act. T.C.A. § 8-44-102(c)(1995). This subsection of the Act has been construed not to bar separate solicitations of commission members' votes by one who wished an appointment to the commission. Jackson v. Hensley, 715 S.W.2d 605 (Tenn. Ct. App. 1986) (holding that no statutory meeting occurred until the commission met to elect the new trustee). However, the Act was violated when three of five councilmen discussed and agreed to an item in advance of a city council meeting. Op. Att'y Gen. No. 83-033 (Jan. 24, 1983). However, the Attorney General has opined that an exit conference between the State Comptroller and members of a governing body which was conducted for the limited purpose of imparting information to local government officials, with the officials not deliberating toward or making a decision, was not subject to the Act. Op. Att'y Gen. No. 99-090 (April 12, 1999). Job interviews conducted by a county airport committee are considered meetings because they clearly involve deliberation toward employment decisions. Op. Att'y Gen. No. 96-040 (March 12, 1996).

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  • Texas

    Deliberations toward decisions may be subject to the Act. See Willmann, 123 S.W.3d at 472 (“[The Act] requires ‘openness at every stage of a governmental body’s deliberations’ because the citizens of Texas are entitled to know not only what government decided but also to observe how and why every decision is enacted.”) (citing Acker v. Tex. Water Comm’n, 790 S.W.2d 299, 300 (Tex. 1990)). City of Port Isabel v. Pinnell, 207 S.W.3d 394, 406 (Tex. App.—Corpus Christi 2006, no pet.) (“Every regular, special, or called meeting or session of every governmental body shall be open to the public.”)(quoting Section 551.002).

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  • Utah

    Deliberations toward decisions are subject to the Open Meetings Act. See Utah Code § 52-4-102(b), -103(3), (6)(a), -205(m).

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  • Vermont

    The “deliberations” of any boards or agencies or commissions acting in a judicial or quasi-judicial capacity are not subject to the open meeting law. 1 V.S.A. § 312(e).   Deliberations are defined as “weighing, examining, and discussing the reasons for and against an act or decision, but expressly excludes the taking of evidence and the arguments of parties.”  1 V.S.A. § 310(2).

    Quasi-judicial proceedings are defined as “contested case[s] under the Vermont Administrative Procedure Act” or “case[s] in which the legal rights of one or more persons who are granted party status are adjudicated, which is conducted in such a way that all parties have opportunity to present evidence and to cross-examine witnesses presented by other parties, which results in a written decision, and the result of which is appealable by a party to a higher authority.”  Id. at § 310(6).

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  • Virginia

    A meeting held to discuss or transact public business is still a meeting within the meaning of the Act even where no votes are taken or decisions made. Va. Code Ann. § 2.2-3701. One court has observed that officially transacting public business “contemplates a broad view extending not only to the taking of an official vote but also to the peripheral discussions surrounding the vote.” WDBJ Television Inc. v. Roanoke County Supervisors, 4 Va. Cir. 349 (Roanoke Cir. Ct. 1985).

    Non-Public Business: A meeting of Board of Supervisors to discuss communication and decision making skills is not a meeting subject to the provisions of this section. WDBJ Television Inc. v. Roanoke County Supervisors, 4 Va. Cir. 349 (Roanoke Cir. Ct. 1985).

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  • West Virginia

    The Open Meetings Act does not mention deliberations toward decisions. Before McComas, the West Virginia Supreme Court had held that deliberations toward decisions constitute an adjudicatory session, exempt from the Act under W. Va. Code § 6-9A-2(4), Appalachian Power Co. v. Public Service Commission, 162 W. Va. 839, 253 S.E.2d 377 (1979), and deliberations seemed to be exempt from the public's constitutional right of access to adjudicatory proceedings under the State Bar and Board of Medicine decisions. Daily Gazette v. W. Va. State Bar, 176 W. Va. 550, 326 S.E.2d 705, 706 (1984); Daily Gazette v. W. Va. Board of Medicine, 177 W. Va. 316, 352 S.E.2d 66 (1986).

    However, the Supreme Court was moving toward interpreting the Open Meetings Act to require public scrutiny of some of the deliberative processes of government in Common Cause of W. Va. v. Tomblin, 186 W. Va. 537, 413 S.E.2d 358 (1991). There, the court ruled that the process by which the Legislature's Conferees Committee on the Budget prepares an informal but influential budget "digest" setting forth its view of the specific purposes for which general appropriations should be used, must comply with the Open Meetings Act. The court noted that the contents of the digest are the result of "various compromises and agreements [which] emerge from myriad negotiations" by legislators and ruled that this process of negotiation and compromise must be open to public view. Not only must the digest be approved in public meetings, the court held, but the Conferees Committee must create and maintain for public inspection "memoranda of the negotiations, compromises and agreements or audio recordings of committee or subcommittee meetings where votes were taken or discussions had that substantiate the material which is organized and memorialized in the Budget Digest." Syl. Pt. 5. Common Cause of W. Va. v. Tomlin, 186 W. Va. 537, 413 S.E.2d 358 (1996). This suggests such meetings may be subject to the Open Meetings Act.

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  • Wisconsin

    “[W]henever members of a governmental body meet to engage in government business, be it discussion, decision or information gathering, the Open Meeting Law applies . . . .” Showers, 135 Wis. 2d at 80, 398 N.W.2d at 156.

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