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b. Invalidate the decision

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  • Alabama

    The Alabama Open Meetings Act allows courts to invalidate the actions taken during meetings held in violation of the Act. Ala. Code § 36-25A-9(f). However, under the former open meetings law Alabama courts consistently refused to set aside decisions that were made at wrongfully closed meetings. See, e.g., Ex parte Ala. Public Service Commission, 376 So. 2d 665 (Ala. 1979).  Citizens For Better Schools v. Greene, CV 2007-932 (Cir. Ct. of Jefferson County, Ala. Mar. 19, 2008) (declaring vote null and void and imposing fines and awarding attorneys’ fees based on failure to post preliminary agenda in proper location). But see Swindle v. Remington, 2019 WL 1090393 (Ala. 2019), reh'g denied, 2019 WL 2240140 (Ala. 2019) (upholding circuit court’s invalidation of rate increases discussed during improper executive session).

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  • Alaska

    If the meeting has already occurred and action has been taken as a result of proceedings that included open meetings violations, the court has the authority to invalidate the decision or other action taken at such meetings. The Open Meetings Act provides that any action taken in violation of the law is "voidable," AS 44.62.310(f), and both the legislature and the Alaska Supreme Court have said public bodies should be given the opportunity to reconsider and cure their decisions reached as a result of improperly held sessions. The legislature has provided in AS 44.62.310(f) that

    a governmental body that violates or is alleged to have violated this section may cure the violation or alleged violation by holding another meeting in compliance with notice and other requirements of this section and conducting a substantial and public reconsideration of the matters considered at the original meeting. If the court finds that an action is void, the governmental body may discuss and act on the matter at another meeting held in compliance with this section. A court may hold that an action taken at a meeting held in violation of this section is void only if the court finds that, considering all of the circumstances, the public interest in compliance with this section outweighs the harm that would be caused to the public interest and to the public entity by voiding the action.

    The Supreme Court examined this issue of curing violations in Geistauts, ACCFT, and Brookwood. In Geistauts, the Court held that a decision that was void under Section .310(f) must be sent back to the decision-maker for new consideration. The court has suggested that the ultimate remedy in an OMA case is a remand to the transgressing governmental body, which may either ratify or reject its original decision, subject to the statutorily required public scrutiny. ACCFT, 677 P.2d at 890. But how do we prevent the validation meeting from being a mere "rubber stamp" of the original decision? The Court gave the following guidance:

    Approximation of the status quo at the time of the original decision is desirable. A court fashioning a remedy under section 310(f) should attempt to recreate the circumstances surrounding the defective meeting to the extent practicable. Exact duplication of the context of the first meeting is not possible. Even if the decision-making entity can return to its pre-decisional state of mind, it must nevertheless respond to information and developments arising since the time of the first meeting. It is unavoidable and proper that the ratification body act upon all knowledge available to it.

    Id. (footnotes omitted). However, the Court noted,

    There is a limit upon the extent to which the desire to recreate the circumstances of the first meeting answers all of the remedial questions posed by AS 44.62.310(f). Clearly other factors must also guide the courts in fashioning a remedy.

    Concededly section .310(f) does not set forth a detailed scheme for the enforcement of the open meeting laws. [T]he statute is silent as to how 'void' action is to be remedied or cured. Consequences of voidness must therefore be determined with reference to the purposes underlying the OMA.

    AS 44.62.312, entitled "state policy regarding meetings," provides an enunciation of the broad concerns embodied in AS 44.62.310. Section .312 makes clear that the OMA exists primarily to advance the interests of "the people of this state." When the sunshine law is breached it is "the people's right to remain informed" which sustains injury. There is no inherent damage stemming from the substantive action which is taken; it is the manner of action that offends. Of course AS 44.62.310, by ensuring that issues are decided publicly, does attempt to insure that better substantive decisions are made through public scrutiny and adequate information.

    The commentators who have reported upon the sunshine laws in other jurisdictions present a picture of the intent behind these statutes consistent with our reading of AS 44.62.312. Open decision-making is regarded as an essential aspect of the democratic process. It is believed that public exposure deters official misconduct, makes government more responsive to its constituency, allows for greater public provision of information to the decision-maker, creates greater public acceptance of government action, and promotes accurate reporting of governmental processes. . . . Note that none of the above rationales focus upon the substance of the decision made.

    [O]pen meeting statutes were not primarily intended as vehicles for individuals displeased with governmental action to obtain reversals of substantive decisions. What the statutes envision instead is that non-conforming procedures be righted as near to the point of derailment as possible, and that the governmental process be allowed to resume from there.

    Because the OMA protects a public right, the courts must carefully consider public interest concerns in applying section 310(f). Mechanistic vacation of decisions made in nonconformity with the sunshine law may do more disservice to the public good than the violation itself. In a complex case such as the one at hand, many equitable variables must be considered in passing upon the effectiveness of a voluntary ratification.

    677 P.2d at 890-891. The Court in Brookwood summarized the obligations upon agencies that have violated the OMA, stemming from §  310(f):

    In ACCFT, 677 P.2d 886, we discussed the procedure that a trial court should follow to decide whether a subsequent public meeting validated a governmental decision made at a meeting held in violation of the OMA. . . . If a public body acts in violation of the OMA, its actions are void. AS 44.62.310(f). To determine whether a subsequent remedial effort may validate an otherwise void action, we established the following approach. First, the plaintiff must show by a preponderance of the evidence that a violation occurred. Id. at 892. Second, if a violation is shown, the burden shifts to the defendant to show that a "substantial reconsideration" of the issue was made at a subsequent public meeting, i.e., "whether the validation meeting functioned as a true de novo consideration of the defective action." Id. at 891, 893. Third, if the defendant fails to meet this requirement, the court must decide whether invalidation of the governmental action is a proper remedy. To choose invalidation, the court must determine (a) that invalidation is a necessary prerequisite to actual reconsideration of the issue by the government, and (b) that invalidation will serve the public interest. In deciding the public interest issue, the court should weigh the "remedial benefits to be gained in light of the goals of the OMA against the prejudice likely to accrue to the public." Id. at 893.

    Brookwood, 702 P.2d at 1324-1325. Since these cases were decided, the legislature codified and expanded upon regulations relating to curing violations of OMA, as well as factors that should be considered in whether or not to void action. These factors are set forth in AS 44.62.310(f)(1)-(9).

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  • Arizona

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

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  • Arkansas

    If suit is filed after the meeting, the court may invalidate agency action taken at a meeting that was closed in violation of the FOIA or, in some situations, if proper procedures were not followed.

    (1) “No resolution, ordinance, rule, contract, regulation, or motion considered or arrived at in executive session will be legal unless, following the executive session, the public body reconvenes in public session and presents and votes on the resolution, ordinance, rule, contract, regulation or motion.” Ark. Code Ann. § 25-19-106(c)(4). Failure to comply with this provision can lead to invalidation of the action taken in the closed session. Yandell v. Havana Bd. of Educ., 266 Ark. 434, 585 S.W.2d 927 (1979).

    (2) The Supreme Court has held that invalidation is also available when a meeting has been closed in violation of the FOIA. Rehab Hosp. Servs. Corp. v. Delta-Hills Health Sys. Agency Inc., 285 Ark. 397, 687 S.W.2d 840 (1985). However, this remedy is not to be employed routinely. Depoyster v. Cole, 298 Ark. 203, 766 S.W.2d 606 (1989), overruled on other grounds by Harris v. City of Ft. Smith, 366 Ark. 277, 234 S.W.3d 875 (2006). Invalidation is available only if administrative remedies have been exhausted, the plaintiff seeks to vindicate the public interest rather than private concerns, and the FOIA violation is substantial. Rehab Hospital, 285 Ark. 397, 687 S.W.2d 840.

    (3) It is not clear whether invalidation will be available for other types of FOIA violations, such as failure to give notice, inadequate notice, refusal to permit tape-recording of the meeting, or the presence at an executive session of persons other than those specified by statute. However, in Depoyster v. Cole, 298 Ark. 203, 766 S.W.2d 606 (1989), overruled on other grounds by Harris v. City of Ft. Smith, 366 Ark. 277, 234 S.W.3d 875 (2006), the court held that invalidation was inappropriate where a governing body had used unsigned ballots in voting. Moreover, a pre-Rehab Hospital case suggests that allowing unauthorized persons to attend a meeting closed under the FOIA’s personnel exemption is a “procedural irregularity” that does not affect the validity of the governing body’s action. Commercial Printing Co. v. Rush, 261 Ark. 468, 549 S.W.2d 790 (1977).

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  • California

    Under the Bagley-Keene Act, the court will only invalidate action taken in violation of Section 11123 (providing for open meetings) or Section 11125 (notice requirements). Cal. Gov't Code § 11130.3(a). Under the Brown Act, the court will invalidate action taken in violation of Sections 54953 (open and public meetings), 54954.2 (posting of agenda), 54954.5 (description requirements for closed sessions), 54954.6 (public meeting in general tax or assessment of notice thereof), 54956 (special meetings and notice thereof), or 54956.5 (emergency meeting rules). Gov't Code § 54960.1(a).
    However, under both Acts, the court will not invalidate any action: (1) taken in connection with the sale or issuance of bonds, (2) giving rise to a contract that a party has relied on in good faith, (3) taken in substantial compliance with the sections, or (4) taken in connection with the collection of any tax. Cal. Gov't Code §§ 11130.3(b) (Bagley-Keene Act); 54960.1(d) (Brown Act).

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  • Colorado

    Colo. Rev. Stat. § 24-6-402(8) provides that no resolution, rule, regulation, ordinance, or formal action of a state agency, board, committee, commission, or other body shall be valid unless taken or made at a meeting which is open to the public and of which full and timely public notice has been given. See Lanes v. State Auditor's Office, 797 P.2d 764 (Colo. App. 1990). However, unintentional failure to provide advance notice of meetings to persons on a "sunshine list" will not nullify actions taken at an otherwise properly published meeting. Colo. Rev. Stat. § 24-6-402(7).

    Courts will not invalidate a decision if the state or local public body “cured” the violation at a subsequent complying meeting, provided the subsequent meeting was not a mere “rubber stamping” of the earlier decision made in violation of the law. Colo. Off-Highway Vehicle Coalition v. Colo. Bd. of Parks & Outdoor Recreation, 292 P.3d 1132, 1137-38 (Colo. App. 2012).

    A declaration that an agency rule or action is invalid should be sought as a declaratory judgment under Colo. R. Civ. P. 57. The agency, board or commission should be named as an adverse party. See, e.g., Littleton Educ. Ass'n v. Arapahoe Cty. Sch. Dist. No. 6, 191 Colo. 411, 553 P.2d 793 (1976) (collective bargaining agreement reached in secret in violation of public meetings law declared void).

    However, only the persons affected by the rule or action made or taken without compliance with the Open Meetings law have standing to seek a declaration that the rule or action is invalid. See Colo. R. Civ. P. 57(b).

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  • Connecticut

    The court may provide this remedy at its discretion.

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  • Delaware

    A court may find that a violation of the Act occurred.

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  • District of Columbia

    A court may declare action taken at a meeting to be void if it finds that the balance of equities compels that decision or that the violation of the Act was not harmless.  D.C. Code Ann. § 2-579(d).

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  • Florida

    Florida courts are authorized to invalidate actions taken at meetings held in violation of the Sunshine Law. Fla. Stat. § 286.011(4) (1995). See Silver Express Co. v. Dist. Bd. of Tr. of Miami-Dade Cmty. Coll., 691 So. 2d 1099 (Fla. 3d DCA 1997) (committee’s violation of Sunshine Law when it held closed meeting to evaluate proposals was irreparable public injury, warranting temporary injunction prohibiting college and successful bidder from entering into two-year contract based on findings of the committee). But see Zorc v. City of Vero Beach, 722 So. 2d 891 (Fla. 4th DCA 1998) (full and open hearing will cure defect arising from a Sunshine Law violation); Leach-Wells v. City of Bradenton, 734 So. 2d 1168 (Fla. 2d DCA 1999) (city violated Sunshine Law when it failed to hold a public meeting before taking the formal action of short-listing the firms responding to a request for proposals; however, controversy is moot because acts that plaintiff sought to enjoin had already been committed).

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  • Georgia

    The court may invalidate agency action based on a violation of the Act. See O.C.G.A. § 50-14-1(b)(2).

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  • Hawaii

    Yes. Haw. Rev. Stat. § 92-11.

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  • Indiana

    Voiding a decision taken at a meeting that violates the statute is an available remedy. Ind. Code § 5-14-1.5-7(a)(3). In determining whether to declare any policy, decision, or final action void, the court must consider, among other relevant issues, the factors enumerated in Ind. Code § 5-14-1.5-7(d). The decision whether to void any final action taken in violation of the Open Door Law is a matter left to the trial court’s discretion. Thornberry v. City of Hobart, 887 N.E.2d 110 (Ind. Ct. App. 2008). See also Marion-Adams Sch. Corp. v. Boone, 840 N.E.2d 462, 468 (Ind. Ct. App. 2006) (granting declaratory judgment to prevent violation of Open Door Law where complaint requested voiding adoption of budget cuts); see also Frye v. Vigo County, 769 N.E.2d 188, 197 (Ind. App. 2002) (remanding case to the trial court for further consideration of the statutory factors to decide whether voiding the agency’s action would be a proper remedy). But see Hinojosa v. Hammond Bd. of Pub. Works & Safety, 789 N.E.2d 533, 549 (Ind. App 2003) (declining to declare action taken void despite Open Door Law violation).

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  • Iowa

    If challenged within six months.

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  • Kansas

    Injunctive relief is available under. K.S.A. 75-4320a.  But only a county or district attorney, or the attorney general, can void an action within 21 days under K.S.A. 75-4320(a).

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  • Kentucky

    If the agency did not substantially comply with certain provisions of the Open Meetings Act, actions taken at the agency's meeting may be voided by a Circuit Court. See Ky. Rev. Stat. 61.848(5).

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  • Louisiana

    Yes, if suit is brought within 60 days of the action and the public body did not subsequently ratify the action at a meeting that fully complied with the Open Meeting Law. La. Rev. Stat. Ann. § 42:24; Marien v. Rapides Parish Police Jury, 717 So. 2d 1187 (La. App. 3rd Cir.), writ denied, 709 So. 2d 745 (La. 1998) (ratification can cure a violation of the Open Meeting Law); Delta Development Co. Inc. v. Plaquemines Parish Comm'n Council, 451 So. 2d 134 (La. App. 4th Cir.), writ denied, 456 So. 2d 172 (La. 1984) (court declined to void a resolution authorizing a lawsuit because the public body subsequently ratified the resolution in an open meeting where there was full discussion of the resolution); Brown v. Bd. of Trustees-Mun. Police Employees' Ret. Sys., 234 So.3d 260 (La.App. 1st Cir. 2017) (failure of board to provide retired police officer with notice of hearing at which board reduced officer's retirement benefits violated Open Meetings Law and rendered decision null and void); Jackson v. Bd. of Commr’s of HANO, 514 So.2d 628 (La.App. 4th Cir. 1987) (employment contract awarded by housing authority in violation of Open Meetings Law void).

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  • Maine

    The Court may order that any action taken in an illegal closed meeting be declared “null and void.”  1 M.R.S.A. § 409(2).

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  • Maryland

    If the court finds a willful failure to comply with the open meeting, notice, public attendance or minutes requirements and finds that there is no other adequate remedy, the court may declare void the final action of the public body. § 3-401(d)(4); Wesley Chapel Bluemount Ass'n. v. Baltimore County, 347 Md. 125, 149, 699 A.2d 434, 446 (1997). But, a court may not void the action of a public body due to another public body's violation of the Act. § 3-401(a)(2). Further, this remedy is not available for violations of Section 3-305 alone. § 3-401(d)(4).

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  • Massachusetts

    The court clearly has discretionary power to invalidate the decision and this has happened on occasion.

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  • Michigan

    A decision made by a public body may be invalidated (a) if the body has not complied with the requirements of Mich. Comp. Laws Ann. § 15.263(1), (2), and (3) in making the decision or if the failure to give notice in accordance with Mich. Comp. Laws Ann. § 15.265 has "interfered with substantial compliance with" Mich. Comp. Laws Ann.§ 15.263. However, a decision will only be invalidated if the court finds that the noncompliance or failure "has impaired the rights of the public under the OMA]." Mich. Comp. Laws Ann. § 15.270(2). For example, deficiencies in the maintenance of meeting minutes do not provide grounds for invalidating an action taken by a public body. Willis v. Deerfield Twp., 257 Mich. App. 541, 669 N.W.2d 279 (2003).

    Further limitations on a circuit court's jurisdiction to invalidate a decision are that the action must be commenced within 60 days after the approved minutes are made available to the public — unless the decision involves "the approval of contracts, the receipt or acceptance of bids, the making of assessments, the procedures pertaining to the issuance of bonds or other evidences of indebtedness, or the submission of a borrowing proposal to the electors," in which case the action must be commenced within 30 days after the approved minutes relating to that decision are made available to the public. Mich. Comp. Laws Ann. § 15.270(3). Invalidation of decisions made in contravention of the OMA is discretionary with the court. Esperance, supra, 280 N.W.2d at 559. Moreover, in any case where an action has been initiated to invalidate a public body's decision, that body may reenact the disputed decision, in conformity with the OMA "without being deemed to make any admission contrary to its interest . . . ." Mich. Comp. Laws Ann. § 15.270(5). "A decision reenacted in this manner [will] be effective from the date of reenactment and [will] not be declared invalid [because of any] deficiency in the procedure used for its initial enactment." Mich. Comp. Laws Ann. § 15.270(5).

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  • Minnesota

    Previously, the Minnesota Supreme Court held that parties could seek an order rendering the decision taken at a wrongfully closed meeting invalid. Quast v. Knutson, 276 Minn. 340, 150 N.W.2d 199 (1968). After the legislature amended the Open Meeting Law to include civil penalties, the Supreme Court concluded that invalidation was not available. Sullivan v. Credit River Township, 217 N.W.2d 502 (Minn. 1974); Columbus Concerned Citizens, Inc. v. Minnesota Racing Comm’n., 2006 WL 1529494 (Minn. Ct. App. 2006).

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  • Mississippi

    A violation of the Open Meetings Act does not make the decision void or voidable. Shipman v. North Panola Consolidated School District, 641 So. 2d 1106, 1116 (Miss. 1994).

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  • Montana

    Courts will issue injunctions requiring meetings to be opened or enjoining the presiding officer from closing a meeting in violation of the statute. The court may also void the decision or order prospective relief requiring future meetings to be open.

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  • Nebraska

    A court may declare a decision that violates law void. Neb. Rev. Stat. §84-1414(1).

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  • Nevada

    A court can grant an injunction requiring an open meeting.

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  • New Mexico

    A court could invalidate improper decisions made at the meeting.

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  • New York

    The court has the discretionary power, upon a showing by the petitioner of good cause, to invalidate any action taken in violation of the OML, other than unintentional violations relating to notice. N.Y. Pub. Off. Law § 107(1) (McKinney 1988).

    The statute specifically states as follows:

    In any such action or proceedings, the court shall have the power, in its discretion, upon good cause shown, to declare any action or part thereof taken in violation of this article void in whole or in part.

    An unintentional failure to fully comply with the notice provisions required by this article shall not alone be grounds for invalidating any action taken at a meeting of a public body. The provisions of this article shall not affect the validity of the authorization, acquisition, execution or disposition of a bond issue or notes.

    N.Y. Pub. Off. Law § 107(1) (McKinney 1988).

    See Zehner v. Bd. of Educ. of Jordan-Elbridge Cent. Sch. Dist., No. 2010-6515, 2011 WL 1549480 (Sup. Ct., Onondaga Cty., Jan. 20, 2011) (“for purpose of discussing matters related to the appointment or employment of a particular person” was insufficient when actual purpose was to discuss the search for school superintendent); Chenkin v. N.Y. City Council, 72 A.d.3d 548, 898 N.Y.S.2d 839 (1st Dep’t 2010) (“inadvertence or slight negligence” is not good cause to void the decision); Stephenson v. Bd. of Educ. of Hamburg Cent. Sch. Dist., No. 12597/2010, 2011 WL 1877621 (Sup. Ct., Erie Cty., May 17, 2011) (numerous but inadvertent violations of OML not grounds to void school board’s actions); In re Application of Stop BHOD v. N.Y.C., No. 31301/08, 2009 WL 602080 (Sup. Ct., Kings Cty., Mar. 13, 2009) (the board’s failure to provide proper notice was a “mere unintentional technical violation,” and petitioners made no showing the board “sought to minimize public awareness” of the issue, thus decision was not set aside); Reese v. Daines, 62 A.D.3d 1254, 887 N.Y.S.2d 801 (4th Dep’t 2009) (“Respondents did not engage in ‘a persistent pattern of deliberate violations of the [OML]’”); N.Y.S. Tenants & Neighbors Coal., Inc. v. Nassau Cnty. Rent Guidelines Bd., No. 1250/2006, 2006 WL 6351219 (Sup. Ct., Nassau Cty., Oct. 16, 2006) (executive session to discuss low-income guidelines was improper, violated OML, and was overturned); Carrier v. Town of Palmyra Zoning Bd. of Appeals, 30 A.D.3d 1036, 816 N.Y.S.2d 647 (4th Dep’t 2006) (discussion of petitioner’s use of property was not a proper matter for executive session, but petitioner failed to show good cause to void the board’s determination); Gernatt Asphalt Products v. Sardinia, 87 N.Y.2d 668, 664 N.E.2d 1226, 642 N.Y.S.2d 164 (1996) (it is the challenger’s burden to show good cause warranting judicial relief); Sanna v. Lindenhurst Bd. of Educ., 58 N.Y.2d 626, 444 N.E.2d 975, 458 N.Y.S.2d 511 (1982) (whether to declare void an action taken in violation of the OML is a matter for the court’s discretion); Nextel Partners Inc. v. Town of Fort Ann, 1 A.D.3d 89, 766 N.Y.S.2d 712 (3d Dep’t 2003) (Appellate court excused a Town Board’s noncompliance with the Open Meetings Law as not resulting in any prejudice: “[L]ittle discussion is warranted regarding Nextel’s cross appeal addressed to that portion of Supreme Court’s decision declining to find that the Town Board violated the Open Meetings Law. While the record of the public hearings contains support for the conclusion that some aspects of the Town Board’s proceedings on this request were improperly conducted in private in violation of the Open Meetings Law, no resulting prejudice is shown and we find unwarranted any award of counsel fees or costs (see Public Officers Law § 107[2]).”); DeMaria v. Smith, 197 A.D.2d 114, 610 N.Y.S.2d 689 (3d Dep’t 1994) (mere fact that board had previous discussions or held prior meetings in violation of OML is not “good cause” for overturning action); New York University v. Whalen, 46 N.Y.2d 734, 386 N.E.2d 245, 413 N.Y.S.2d 637 (1978) (judicial relief is warranted only upon a showing of good cause, a burden which is on petitioner); Roberts v. Town Bd. of Carmel, 207 A.D.2d 404, 615 N.Y.S.2d 725 (2d Dep’t 1994) (board’s failure, if any, to comply precisely with OML is mere negligence which was not a sufficient ground to invalidate action); McGovern v. Tatten, 213 A.D.2d 778, 623 N.Y.S.2d 370 (3d Dep’t 1995) (petitioner failed to submit proof of existence of good cause to void board action); Town of Moriah v. Cole-Layer-Trumble Company, 200 A.D.2d 879, 606 N.Y.S.2d 825 (3d Dep’t 1994) (vote in executive session in violation of OML was not good cause to void action where board later ratified decision at regular meeting and there was no showing of prejudice); Matthes v. Town of E. Fishkill, 785 F.2d 43 (2d Cir. 1986) (vote at open meeting to convene in executive session at next meeting was improper, but is not sufficient ground to invalidate action); Ireland v. Town of Queensbury Zoning Board, 169 A.D.2d 73, 571 N.Y.S.2d 834 (3d Dep’t 1991) (action at meeting if improperly closed is voidable; not void, but no showing of good cause in this case); Goodson Todman Enterprises v. City of Kingston Common Council, 153 A.D.2d 103, 550 N.Y.S.2d 157 (3d Dep’t 1990) (no finding of bad faith where prior meetings were duly noticed and open to the public); Smithson v. Ilion Housing Authority, 130 A.D.2d 965, 516 N.Y.S.2d 564 (4th Dep’t 1987) (erroneous use of secret ballot to terminate employee did not warrant annulment of determination); Callanan Industries v. City of Schenectady, 116 A.D.2d 883, 498 N.Y.S.2d 490 (3d Dep’t 1986) (in the absence of a sufficient showing of good cause, city council’s determination on a contract bid will not be vacated despite OML violations); Monroe-Livingston Sanitary Landfill Inc. v. Bickford, 107 A.D.2d 1062, 486 N.Y.S.2d 566 (4th Dep’t 1985), mot. lv. appeal dismissed, 65 N.Y.2d 1025, 484 N.E.2d 668, 494 N.Y.S.2d 305 (1985) (even if the notice given was not in full compliance with the OML, invalidation of town board’s action on a landfill permit was not warranted under the circumstances where petitioner had a full opportunity to present its case); Weatherwax v. Town of Stoney Point, 97 A.D.2d 840, 468 N.Y.S.2d 914 (2d Dep’t 1983) (where petitioner was unaware of insurance termination and had to spend his own monies for medical treatment, good cause has been shown to void town board’s decision to terminate insurance coverage which was made in an improper closed session); Concerned Citizens to Review Jefferson Mall v. Town Bd., 83 A.D.2d 612, 441 N.Y.S.2d 292 (2d Dep’t 1981), appeal dismissed, 54 N.Y.2d 957, 429 N.E.2d 833, 445 N.Y.S.2d 154 (1981) (petitioners failed to allege sufficient facts to warrant a finding of good cause to nullify the town board’s action, particularly in view of the ample opportunity for public comment and resulting modifications to the proposed site plan); Woll v. Erie Cty. Legislature, 83 A.D.2d 792, 440 N.Y.S.2d 146 (4th Dep’t 1981), aff’d, 53 N.Y.2d 1030, 425 N.E.2d 886, 442 N.Y.S.2d 498 (1981) (earlier violations of the OML which led to invalidation of reapportionment plan were sufficiently cured by two subsequent public meetings); Kloepfer v. Comm’r of Educ., 82 A.D.2d 974, 440 N.Y.S.2d 785 (3d Dep’t 1981), aff’d, 56 N.Y.2d 687, 436 N.E.2d 1334, 451 N.Y.S.2d 732 (1982) (since petitioner has shown no prejudice to her resulting from the board’s action, she has not met her burden of good cause necessary to nullify board’s appeal decision taken in executive session); White v. Battaglia, 79 A.D.2d 880, 434 N.Y.S.2d 537 (4th Dep’t 1980), mot. lv. appeal denied, 53 N.Y.2d 603, 421 N.E.2d 854, 439 N.Y.S.2d 1027 (1981) (apparent intentional violation of the notice provisions of the OML warrants invalidation of board’s action); Szurnicki v. Janisch, N.Y.L.J., Feb. 13, 1992 (Sup. Ct. Suffolk Cty., 1992) (failure to give notice of special meeting was unintentional and a technical failure to comply with the OML is insufficient to invalidate action of school board); Schofield v. Cmty. Sch. Bd., N.Y.L.J., May 15, 1990 (Sup. Ct., Bronx Cty., 1990) (failure to provide proper notice was not sufficient good cause to invalidate action taken at meeting); Previdi v. Hirsch, 138 Misc.2d 436, 524 N.Y.S.2d 643 (Sup. Ct. 1988) (intentional violations justify voiding actions taken in illegal executive sessions); Gilbert v. Bd. of Educ. (Sup. Ct., Steuben Cty., June 10, 1986) (because most of the board’s discussions were held in executive session, and because of the number and concern of the persons affected by the decision, good cause is shown to void school board’s decision regarding transfer out of its handicapped children’s program); Dombroske v. Bd. of Educ., 118 Misc.2d 800, 462 N.Y.S.2d 146 (Sup. Ct. 1983) (a violation of the OML does not taint a subsequently held legal meeting at which challenged action is taken; rather, the subsequent legal meeting may cure the prior illegality); Muriel Towers Co. v. City of New York, 117 Misc.2d 837, 459 N.Y.S.2d 390 (Sup. Ct. 1983) (action taken at open meeting would not be invalidated because of unruly crowd and circus atmosphere); Devitt v. Heimbach, 109 Misc.2d 463, 440 N.Y.S.2d 465 (Sup. Ct. 1981) (petitioner did not meet burden of proof to invalidate the sale of county-owned property where improper executive session lasted 30 minutes); Kessel v. D’Amato, 97 Misc.2d 675, 412 N.Y.S.2d 303 (Sup. Ct. 1979) (informal luncheon gathering at which staff gave report was technical violation of OML, but was not grounds to invalidate budget); Rent Stabilization Ass’n. v. Rent Guidelines Bd., 98 Misc.2d 312, 413 N.Y.S.2d 950 (Sup. Ct. 1978) (the board’s failure to open meetings to the public and failure to give notice to the press or public requires that implementation of the rent guidelines order be enjoined and that the matter be remanded to the board for further public hearings); Stephenson v. Bd. of Educ. of Hamburg Cent. Sch. Dist., No. 12597/2010, 2011 WL 1877621 (Sup. Ct., Erie Cty., May 17, 2011) (numerous but inadvertent violations of OML not grounds to void school board’s actions, but petitioner was awarded costs and attorney fees).

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  • North Carolina

    The courts have the ability to declare null and void any action taken by a public body in violation of the Open Meetings Law. G.S. § 143-318.16A. In making such a determination, the court must consider six relevant factors:

    (i) the extent to which the violation affected the substance of the challenged action;

    (ii) the extent to which the violation thwarted or impaired access to meetings or proceedings that the public had a right to attend;

    (iii) the extent to which the violation prevented or impaired public knowledge or understanding of the people’s business;

    (iv) whether the violation was an isolated occurrence, or was a part of a continuing pattern of violations of this Article by the public body;

    (v) the extent to which persons relied upon the validity of the challenged action, and the effect on such persons of declaring the challenged action void;

    (vi) whether the action was committed in bad faith for the purpose of evading or subverting the public policy embodied in this Article.

    G.S. § 143-318.16A(c). The Court of Appeals considered and applied these factors in HBS v. Cumberland Co. Bd. of Educ., 122 N.C. App. 49, 468 S.E.2d 517 (1996). Similarly, Superior Court Judge Howard Manning considered and applied these factors in Bladen County Board of Educ. v. Bladen County Board of Commissioners, 05 CVS 0461 (Bladen Co. Sup. Ct. 2005).

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  • North Dakota

    Any action that is a product of an improperly closed meeting may be voidable by a court in a civil action. N.D.C.C. § 44-04-21.2(2).

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  • Ohio

    1. The court has the authority to invalidate a public body's decision reached in a closed session, or reached as a result of deliberation during an unlawfully closed session. Ohio Rev. Code § 121.22(H).
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  • Oklahoma

    Hayworth, supra (board hiring of superintendent invalidated because not listed on agenda); Order Declaring Annexation, supra (vote on annexation invalidated because vote not called in compliance with act). However, the court upheld city's hiring of an employee during a meeting which violated the Act when the employee's contract was not approved until a later meeting held in compliance with the Act. City of Bixby v. State ex rel. Dep't of Labor, 1996 OK CIV APP 118, 934 P.2d 364. A vote taken on an item not listed on the agenda for the public meeting is a willful violation of the Act and is invalid. 2000 OK AG 7.

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  • Oregon

    Simple violations may be rectified by reinstatement of the decision, as described in ORS 192.680(1). A decision shall be voided if the violation was the result of intentional disregard of the law or willful misconduct by a quorum of the governing body’s members. ORS 192.680(3).

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  • Pennsylvania

    The court may invalidate action taken at any meeting that violates any requirement of the Act, including the notice provisions. It may grant declaratory or injunctive relief with respect to particular practices. It may temporarily enjoin challenged action while it considers the merits of the challenge. However, a court is not required to invalidate action taken where there has been a violation of the Sunshine Act. Ackerman v. Upper Mt. Bethel Twp., 567 A.2d 1116 (Pa. Commw. Ct. 1989). Pennsylvania courts have held that a violation of the Act may be “cured” by deliberations and/or official action that occurs at a later meeting open to the public. Id.; see also Ass’n of Cmty. Orgs. for Reform Now v. SEPTA, 789 A.2d 811 (Pa. Commw. Ct. 2002) (holding that “any alleged violation of the Sunshine Act was cured by th[e] subsequent public meeting, at which [SEPTA’s] official action was taken”); Lawrence Cty. v. Brenner, 582 A.2d 79 (Pa. Commw. Ct. 1990) (stating that a violation of the Act may be cured by a subsequent ratification of the action at a public meeting); Doverspike v. Black, 535 A.2d 1217 (Pa. Commw. Ct. 1988) (rejecting the argument that a contract entered into by County Commissioners violated the former Sunshine Act when the contract was voted on at a public meeting after the date the contract was signed); Bianco v. Robinson Twp., 556 A.2d 993 (Pa. Commw. Ct. 1989) (holding that any complaint that decisions made at an executive session violated the Sunshine Act was rendered moot when a public meeting was later held to ratify the actions taken at the executive session).

    The court holds great discretion in deciding whether to invalidate a decision made at a closed meeting. Bradford Educ. Ass’n v. School Dist., 572 A.2d 1314 (Pa. Commw. Ct. 1992) (noting that the trial court has broad discretion to refuse to construe the Act strictly); Keenheel v. Commonwealth, 579 A.2d 1358 (Pa. Commw. Ct. 1990) (noting that although the Pennsylvania Securities Commission should have voted on litigation settlement offer in open meeting, the court did not invalidate the Commission’s approval since petitioner did not claim injury because of that violation); In re Hazelton Area Sch. Dist., 527 A.2d 1091 (Pa. Commw. Ct. 1987) (where the court excused a school district’s failure to comply with the Act’s notice provisions because the violation was technical, occurred under unusual conditions of time pressure, and because no prejudice resulted.)

    Discharge responsible officials. An alleged failure to comply with the requirements of this Act was not found to justify discharging the officials from office. Muncy Creek Twp. Citizens Comm. v. Shipman, 573 A.2d 662 (Pa. Commw. Ct. 1990).

    Order payment of damages. At least one court has declared that damages are not available if a violation of the Sunshine Act has occurred. See Ass’n. of City Mgmt. and Prof. Emps. v. Civil Serv. Comm’n of City of Phila., 721 A.2d 815, 818 (Pa. Cmmw. 1998).

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  • Rhode Island

    The court may declare null and void any actions of a public body found to be in violation of this chapter.  R.I. Gen. Laws § 42-46-8(d).

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  • South Carolina

    The court could invalidate a decision reached in executive session. Piedmont Pub. Serv. Dist. v. Cowart, 459 S.E.2d 876 (S.C. App. 1995).

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  • Tennessee

    Yes. See Abou-Sakher v. Humphreys County, 995 S.W.2d 65 (Tenn. Ct. App. 1977) (County's decision to hire airport manager violated Act and was thus invalid.). However, the governing body might then ratify in a later open meeting the earlier decision found to have been reached in violation of the Act. Allen v. City of Memphis, 397 S.W. 3d. 572 (Tenn. Ct. App. 2012).

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  • Texas

    The Texas Open Meetings Act expressly provides that “[a]n action by a governmental body in violation of this chapter is voidable.” Id. § 551.141. It does not state that governmental acts in violation of act are void or void ab initio. Id. Because the governmental act is merely voidable, it is valid until adjudicated and declared void. Meeker v. Tarrant Cty. College Dist., 317 S.W.3d 754, 759 (Tex. App.—Fort Worth 2010, pet. denied). See also Housing Authority of City of Dallas v. Killingsworth, 331 S.W.3d 806, 812 n.5 (Tex. App.—Dallas 2011, pet. denied) (“Even assuming the manner in which the contract was approved violated [the Act], the approval of the contract in the executive session of the Board is not necessarily null or void. Rather, the approval is merely voidable at the instance of someone with standing to complain. Tex. Gov’t Code § 551.141. The approval remains valid ‘until adjudicated and declared void.’ . . . Thus, even a contract procured by a potentially voidable act is still a valid contract.”).

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  • Utah

    A court may void final action taken in an illegally closed meeting. Utah Code § 52-4-302(1)(a).

    The violation of a temporary restraining order does not void an action taken at an open meeting, unless the trial court abused its discretion. Ward v. Richfield City, 798 P.2d 757, 759-60 (Utah 1990). In Ward, the petitioner obtained a temporary restraining order to stop the city council from conducting further hearings regarding his dismissal as police chief. The council violated the temporary restraining order by proceeding with a public hearing on the matter and by ratifying Ward’s termination. The Utah Supreme Court held that the appropriate remedy for violation of an injunction rests in the trial court’s sound discretion, and that the trial court’s decision not to void the city council’s action was not an abuse of discretion. Id.

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  • Vermont

    The most common relief received for violations of the Open Meeting Law is to invalidate the decision and order that the public body hold a new meeting that complies with the requirements of the statute.  See, e.g.Moorcroft v. Town of Brookfield, No. 147-7-10, 2011 Vt. Super. LEXIS 81, *8 (Vt. Super. Orange County Nov. 8, 2011); Kevan v. Town of Randolph Selectboard, No. 137-7-05 2006 Vt. Super. LEXIS 7, *12 (Vt. Super. Orange County July 31, 2006).  Courts will not, however, invalidate the decision if the public body cured the Open Meeting Law violation by ratifying its decision in a subsequent meeting that complied with the statute.  See Valley Realty & Dev. v. Town of Hartford, 165 Vt. 463, 469, 685 A.2d 292, 296 (Vt. 1996).

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  • Virginia

    Not likely.  See Nageotte v. King George County, 223 Va. 259, 267 n. 2, 288 S.E.2d 423, 427 n.2 (1982).

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  • West Virginia

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

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  • Wisconsin

    The court may also invalidate the action taken at a meeting held in violation of the law if the court "finds, under the facts of the particular case, that the public interest in the enforcement of this subchapter outweighs any public interest which there may be in sustaining the validity of the action taken." Wis. Stat. § 19.97(3).

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  • Wyoming

    A possible remedy is an order finding any decision linked to the illegal closed session to be null and void. The agency may cure the violation by providing a new and substantial reconsideration of the action in open session.

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