b. Notice requirements
The Alabama Open Meetings Act does not provide a time limit for giving notice of executive sessions beyond the procedural requirements discussed above.
When the subject of the executive session involves critical infrastructure or critical energy infrastructure information, the owners and operators of the infrastructure are to be given notice and an opportunity to attend the executive session. Ala. Code § 36-25A-7(a)(4).
If a government body fails to fulfill the procedural requirements for convening an executive session, including by failing to follow notice requirements, enforcement of the Alabama Open Meetings Act may be sought by civil action brought in the county where the governmental body's primary office is located. Ala. Code § 36-25A-9(b)(1). Remedies available include declaratory judgments, injunctions, invalidation of actions taken during the meeting held in violation of the act, and civil penalty up to $1,000 or one half of the defendant’s monthly salary for the government body, whichever is less, against the individual members of the body. Ala. Code § 36-25A-9(e)–(g).
Only the time, date and place of a meeting need be published as a general rule, and not any information specific to the executive session. And, actual notice cures any defect in formal notice under the OMA. Ramsey v. City of Sand Point, 936 P.2d 126, 135 (Alaska 1997).
Since there is no subject matter notice required for meetings generally, there is no special public notice required in advance of executive sessions. As to the general requirements concerning notice of meetings, a requirement in the state’s Municipal Code that governmental bodies of municipalities covered by Title 29 give subject matter notice of items to be discussed at their meetings may require specific notice of executive sessions. While notice to the general public of executive sessions may not be required, AS 44.62.310(c)(2) requires advance notice to an individual who is to be discussed in executive session, so that this person may meaningfully exercise his or her right to request an open hearing. See University of Alaska v. Geistauts, 666 P.2d at 429, in which the Alaska Supreme Court held that failure to give the affected faculty member adequate notice of tenure committee meetings deprived him of his right to request an open discussion pursuant to AS 44.62.310(c)(2). "In our view, requiring the governmental body to inform the individual only of the time and place of the upcoming meeting is inadequate notice." The Court held the University had an implied statutory obligation to inform the faculty member of all meetings in which his tenure application would be considered and to inform him that he had the right to request that the meetings be open to the public. See also Revelle v. Marston, 898 P.2d 917. See, March 15, 1979, Attorney General Opinion No. J-66-485-79, concerning whether an individual whose hiring, firing or transfer is to be discussed is entitled to advance notice of an executive session for that purpose. The Attorney General notes that if the individual requests a public discussion, there can be no executive session to discuss hiring, firing or transferring him.
He may exercise this right, however, only if he has advance notice that his hiring, firing or transfer is to be discussed; that matters tending to injure his reputation and character will (or may) be discussed; and that the body intends to meet in executive session at a given time and place; and that he may request that the matter be discussed in public rather than at an executive session. Only in this manner will the affected person have a reasonable opportunity to exercise his right to a public meeting. Cf., McCarrey v. Comm'r. of Natural Resources, 526 P.2d 1353 (Alaska 1974).
If, without adequate notice to the person affected, a governing body announces in the course of its meeting that it is going into executive session, the person affected will have no reasonable way of exercising his right to a public meeting. Even if the person happened to be present at the meeting, the failure to afford him adequate advance notice compels him to consider his options in unreasonable haste, without any time to prepare, and without any opportunity to seek counsel on the matter. The individual's statutory rights are made a sham. We very much doubt that the courts would look with favor on that kind of practice.
As a practical matter, a week to ten days is a minimum period — absent an emergency — for adequate notice. For more complicated matters, at least 30 days is the minimum reasonable period of notice. We conclude, therefore, that in order to use the exception for executive sessions under AS 44.62.310(c), the governing body must give the person affected at least one week's notice that it intends to do so, together with notice of the subject to be discussed and of his right to a public discussion on the subject.
There is no special posting requirement in the OMA for executive or closed sessions, and there is no apparent requirement that the special, personal notice that must be given to an individual who the governmental body proposes to discuss in executive session must also be posted or otherwise published unless this is required by the state municipal code for governmental bodies covered by it, or by local ordinance or other statute or regulation, specific public notice of an executive session to be conducted as part of a meeting does not require separate public notice.
The Alaska Supreme Court recognized that individuals who are the subject of executive sessions based upon AS 44.62.310(c)(2) have additional rights personal to them as opposed to the public generally, as the discussion would tend to prejudice their reputation or character. The statute gives such individuals the right to require that the session the governmental body had proposed to conduct in secret instead be conducted in public. The Supreme Court has made it clear that individuals discussed in an executive session will have a remedy for failure to give adequate notice. This notice must be timely and complete enough to allow the person to exercise a meaningful choice about whether to attend, to decide whether or not to have the discussion conducted publicly, and to decide whether or not the presence of legal counsel is advisable. It would appear that the 180-day time limit applies to an individual bringing suit to challenge an action taken in violation of his or her right to notice of an executive session to conduct a prejudicial discussion about that person. However, it is likely that a court would balance factors in this circumstance somewhat differently. In the first place, the personal nature of the right afforded by AS 44.62.310(c)(2) would seem to dictate that more than the "public interest in compliance with the OMA" must be taken into account, and that the individual's interest must also be balanced against any harm that would be caused to the public interest and to the public entity by voiding an action affecting that individual. See Revelle v. Marston.
“[N]otice of executive sessions shall be required to include only a general description of the matters to be considered.” A.R.S. § 38-431.02(I). In Shelby School, the court found that a motion containing broad language similar to A.R.S. § 38-431.03(A)(2) and (3) satisfied the notice requirements of A.R.S. § 38-431.02(I). 192 Ariz. at 167-68, 962 P.2d at 241-42. Except for cases of actual emergencies, “a public body shall not discuss any matter in an executive session which is not described in the notice of the executive session.” A.R.S. § 38-431.03(E).
Other than an actual emergency, the notice of a meeting must be posted at least 24 hours in advance. A.R.S. § 38-431.02(C). “The twenty-four hour period includes Saturdays if the public has access to the physical posted location in addition to any website posting, but excludes Sundays and other holidays prescribed in section 1-301.” Id.
A meeting can be recessed and resumed with less notice than 24 hours if proper notice of meeting had been given and, if prior to recessing, “notice is publicly given as to the time and place of the resumption of the meeting or the method by which notice shall be publicly given.” A.R.S. § 38-431.02(E).
Notice of executive sessions must be given to the members of the public body and the general public. A.R.S. § 38-431.02(B).
The same posting requirements as for regular meetings must be followed for executive sessions. A.R.S. § 38-431.02(A).
An agenda is also required for an executive session and must “provide more than just a recital of the statutory provisions authorizing the executive session, but need not contain information that would defeat the purpose of the executive session, compromise the legitimate privacy interests of a public officer, appointee or employee or compromise the attorney-client privilege.” A.R.S. § 38-431.02(I).
The notice must include “the provision of law authorizing the executive session.” A.R.S. § 38-431.02(B).
The notice requirements for regular and special or emergency meetings also apply to meetings which will be closed to the public in whole or in part under an exception to the FOIA. Ark. Op. Att’y Gen. No. 99-157; Ark. Op. Att’y Gen. (Nov. 22, 1971).
The FOIA does not establish a time requirement for notice of regular meetings. However, the governing body “must give notice within a period of time that is reasonably sufficient to allow [persons] who have requested notice to arrange to attend the meeting.” Ark. Op. Att’y Gen. No. 98-033. See also Ark. Op. Att’y Gen. (Mar. 1, 1971) (six days advance notice is acceptable). For special or emergency meetings, notice must be given at least two hours in advance to news organizations that have requested notification. Ark. Code Ann. § 25-19-106(b)(2). The FOIA does not specify the form that the notice must take. Whether a particular form (e.g., e-mail, fax, voicemail) satisfies the act must be determined on a case-by case basis. Ark. Op. Att’y Gen. No. 96-074. For example, a notice for a 7:00 a.m. meeting, faxed during the night, is not sufficient if the sender is aware that no one will be present to receive the fax at the time that it is sent. Id. Verbal notice at an earlier public meeting is adequate only if representatives of all media who are entitled to notice are present. Id.
Notice of regular meetings must be furnished to anyone who requests it. Ark. Code Ann. § 25-19-106(b)(1). A person is entitled to notice only if he or she so requests. Elmore v. Burke, 337 Ark. 235, 987 S.W.2d 730 (1999); Nance v. Williams, 263 Ark. 237, 564 S.W.2d 212 (1978). Organizations as well as individuals may request notice. Ark. Op. Att’y Gen. (Mar. 1, 1971). For special or emergency meetings, notice must be given to news media located in the county where the meeting is to be held and to news media located elsewhere which cover regular meetings of the governing body. Ark. Code Ann. § 25-19-106(b)(2). See Ark. Op. Att’y Gen. No. 96-074. A request for notice may be made orally or in writing. Ark. Op. Att’y Gen. No. 99-157.
The FOIA does not require that notice of a meeting be posted or that an agency purchase newspaper advertising to inform the public of a meeting. However, other statutes, city ordinances, or administrative regulations may impose this requirement on a particular agency. See Ark. Op. Att’y Gen. No. 81-30; Ark. Op. Att’y Gen. (Mar. 4, 1969). The FOIA does not require that an agenda or listing of subjects to be considered at the meeting be included in the notice, Ark. Op. Att’y Gen. No. 98-033, but other statutes, ordinances, or regulations may impose such a requirement upon particular governing bodies.
For regular meetings, the “time and place” of the meeting must be stated in the notice. Ark. Code Ann. § 25-19-106(b)(1). A schedule of upcoming meetings is sufficient. 2005-167; Ark. Op. Att’y Gen. (Oct. 4, 1971). The notice for special meetings must contain the “time, place, and date” of the meeting. Id. § 25-19-106(b)(2). A meeting must not be set at a time that would “effectively avoid the public meeting requirement of the FOIA.” Ark. Op. Att’y Gen. No. 92-162. See also Ark. Op. Att’y Gen. Nos. 96-317, 95-308, 93-299. If proper notice is not given, action taken at the meeting may be subject to invalidation. See Rehab Hosp. Servs. Corp. v. Delta-Hills Health Sys. Agency Inc., 285 Ark. 397, 687 S.W.2d 840 (1985).
Bagley-Keene Act: For a regular meeting, the state body must post 10-days advance notice on the Internet and give notice to any person who requests it in writing. Cal. Gov't Code § 11125(a). The notice shall include a brief, general description of the business to be transacted or discussed in open or closed session. The description need not exceed 20 words. Cal. Gov't Code § 11125(b). A description of an item to be transacted or discussed in closed session must include a citation to the specific statutory authority under which a closed session is being held. Id.
The notice shall include the name, address, and telephone number of any person who can provide further information prior to the meeting. The notice shall additionally include the address of the Internet site where notices required by the Act are made available. Cal. Gov’t Code § 11125(a).
A special meeting may be called any time by the presiding officer or by a majority of the state body. Cal. Gov't Code § 11125.4(a). The state body must provide notice of a special meeting to each member of the state body, to all parties who have requested notice, and on the Internet as soon as is practicable after the decision to hold a special meeting has been made. Cal. Gov't Code § 11125.4(b). However, the state body must deliver notice in a manner that allows it to be received by the members and by newspapers of general circulation and radio or television stations at least 48 hours before the special meeting. Id. Notice must also be posted on the Internet at least 48 hours before the special meeting. Id.
In addition to posting an agenda with a brief description of items to be discussed in a closed session, a state body must also disclose in an open meeting, prior to the closed session, the nature of the items to be discussed. Cal. Gov't Code § 11126.3(a). The disclosure may take the form of a reference to the items as they are listed by number or letter on the agenda. Id.
If the closed session is to discuss complaints or disciplinary action against a public employee, the body must give 24 hours advance written notice to the employee of his or her right to have a public hearing. Cal. Gov't Code § 11126(a)(2). If the state body does not give the employee such notice, any action taken against the employee is null and void. Id.
Brown Act: For regular meetings, the legislative body of the local agency shall post the agenda, describing each item to be discussed in open and closed session, at least 72 hours in advance of the meeting. Cal. Gov’t Code § 54954.2(a)(1). The description need not exceed 20 words. Id. The notice must specify the time and location of the meeting and shall be posted in a location that is freely accessible to members of the public. Id.
In addition to posting an agenda with a brief description of items to be discussed in a closed session, a legislative body of a local agency must also disclose in an open meeting, prior to the closed session, the nature of the items to be discussed. Cal. Gov't Code § 54957.7(a). The disclosure may take the form of a reference to the items as they are listed by number or letter on the agenda. Id. The Brown Act suggests agenda descriptions for various closed sessions. Cal. Gov't Code § 54954.5.
Notice of a special meeting shall be delivered and received at least 24 hours prior to the meeting to each member of the legislative body and to each local newspaper of general circulation and radio or television stations that requested notice. Cal. Gov't Code § 54956(a).
If the closed session is to discuss complaints or disciplinary action against a public employee, the body must give 24 hours advance written notice to the employee of his or her right to have a public hearing. Cal. Gov't Code § 54957(b)(2). If the legislative body does not give the employee such notice, any action taken against the employee is null and void. Id.
Penalties: It is a misdemeanor for a member of a legislative body of a local agency or a state body to knowingly attend a meeting where action is taken in violation of any provision of the open meeting laws, where the member intends to deprive the public of information to which it is entitled. Cal. Gov't Code §§ 11130.7 (Bagley-Keene Act); 54959 (Brown Act).
Actions: Mandamus, injunctive or declaratory relief is available to stop or prevent violations or threatened violations of the Bagley-Keene Act or the Brown Act, or to determine the application of the statutes to on-going actions or threatened future actions or to determine the application of the statutes to past actions. Cal. Gov't Code §§ 11130 (Bagley-Keene Act); 54960 (Brown Act). Additionally, mandamus or injunctive relief is available to declare as null and void an action in violation of the Bagley-Keene Act or the Brown Act. Cal. Gov’t Code §§ 11130.3 (mandamus relief available under Bagley-Keene Act for violations of Sections 11123 (open meetings) or 11125 (notice of meetings)); 54960.1(a) (mandamus relief available under Brown Act for violations 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)).
However, under both Acts, the code authorizes nullification of action taken in violation of these provisions only if the action was not in substantial compliance with the requirements. Cal. Gov’t Code §§ 11130.3(b)(3) (Bagley-Keene Act); 54960.1(d)(1) (Brown Act). See Regents of Univ. of Cal. v. Superior Court, 20 Cal. 4th 509, 527, 85 Cal. Rptr. 2d 257, 976 P.2d 808 (1999); see, e.g., Castaic Lake Water Agency v. Newhall Cty. Water Dist., 238 Cal. App. 4th 1196, 1207, 190 Cal. Rtpr. 3d 151 (2015) (description of closed agenda item that cited wrong provision authorizing closed session to confer with counsel over litigation was held to be in substantial compliance with Brown Act); San Joaquin Raptor Rescue Ctr. v. Cty. of Merced, 216 Cal. App. 4th 1167, 1177, 157 Cal. Rptr. 3d 458 (2013) (failure to separately disclose consideration of a mitigating negative declaration concerning an environmental project noticed for approval on the agenda held to violate Brown Act); N. Pacific LLC v. Cal. Coastal Comm’n, 166 Cal. App. 4th 1416, 1431-32, 83 Cal. Rptr. 3d 636 (2008) (“[S]tate actions in violation of [the notice] requirements should not be nullified, so long as the state agency’s reasonably effective efforts to notify interested persons of a public meeting serve the statutory objectives of ensuring that state actions taken and deliberations made at such meetings are open to the public.”).
Additionally, even when technical violations of the Acts are shown, action will not be invalidated absent a showing of prejudice. Cal. Coastal Comm’n, 166 Cal. App. 4th at 1433 (Bagley-Keene Act); Cohan v. City of Thousand Oaks, 30 Cal. App. 4th 547, 555-56, 35 Cal. Rptr. 2d 782 (1994) (Brown Act).
An executive session may be held only at a regular or special meeting, and only after the announcement to the public of the topic for discussion in the executive session and the affirmative vote of two-thirds of the entire membership of the state public body or two-thirds of the quorum present of the local public body. Colo. Rev. Stat. §§ 24-6-402(3)(a) (state) and 24-6-402(4) (local). If an executive session is not convened properly, then the meeting and the recorded minutes are open to the public. Gumina v. City of Sterling, 119 P.3d 527, 530 (Colo. App. 2004) (Colo. App. 2004) (City council's failure to "strictly comply" with the requirements of the statute rendered its meeting open and the terminated city employee had the right to inspect the minutes.); Zubeck v. El Paso County Ret. Plan, 961 P.2d 597, 600 (Colo. App. 1998); WorldWest LLC v. Steamboat Springs Sch. Dist. RE-2 Bd. of Educ., No. 07-CA-1104, 37 Media L. Rep. (BNA) 1663 (Colo. App. 2009); Ctr. for Indep. Media v. Indep. Ethics Comm’n of Colo., No. 09-cv-5109, 37 Media L. Rep. (BNA) 2522 (Colo. Denver Dist. Ct. Aug. 31, 2009)
Sunshine Law: "Full and timely" notice. § 24-6-402(2)(c) provides that "full and timely notice to the public" must be given before any meeting can be held at which adoption of any proposed policy, position, resolution, rule, regulation, or formal action occurs, or at which a majority or quorum of the body is in attendance or expected to be in attendance.
"Full and timely notice" is a flexible standard, and the time for giving notice of daily meetings, for example, differs from that of monthly meetings. See Benson v. McCormick, 195 Colo. 381, 578 P.2d 651 (1978).
Some overt action must be taken by the public body within a reasonable time to give notice to the public that a meeting is to be held. Hyde v. Banking Board, 38 Colo. App. 41, 552 P.2d 32 (1976).
A local government body is deemed to have given full and timely notice if notice of the meeting is posted in a designated place within the boundaries of the local government body no less than 24 hours before the meeting. Colo. Rev. Stat. § 24-6-402(2)(c).
Notice under Colo. Rev. Stat. § 24-6-402(2) must be given to the public, that is, made available to the public by posting notice in an area open to public view, see Hyde v. Banking Board, supra, or by distributing copies of the notice to the media. See Benson v. McCormick, supra. Places of posting notices of local government body meetings shall be designated annually at the body's first regular meeting of each calendar year.
"Sunshine Lists." Persons who within the previous two years have requested notification of all meetings of a local public body or of meetings where certain specified policies are discussed shall have their names placed on a "sunshine list" by the secretary or clerk of the state or local public body. The secretary or clerk shall then provide reasonable advance notification of such meetings to all persons on the list. Colo. Rev. Stat. § 24-6-402(7). However, notice to persons on the Sunshine List is not a substitute for notice to the general public. Hyde v. Banking Board, supra.
Although notice under Colo. Rev. Stat. § 24-6-402(2)(c) must be "full," it need not designate with specificity the precise agenda for each meeting, particularly if a strict agenda would interfere with public duties. See Benson v. McCormick, supra. However, the posting shall include specific agenda information where possible. Colo. Rev. Stat. § 24-6-402(2)(c).
Notice must state the topic for the closed session or executive meeting, cite the specific subsection of the statute relevant to the topic(s) to be discussed, and identify the matter in as much detail as possible without compromising the purpose of the session. Worldwest Ltd. Liability Co. v. Steamboat Springs Sch. Dist. RE-2, 37 Media L. Rptr. (BNA) 1663 (Colo. App. 2009); Ctr. for Indep. Media v. Indep. Ethics Comm’n of Colo., No. 09-cv-5109, 37 Media L. Rep. (BNA) 2522 (Colo. Denver Dist. Ct. Aug. 31, 2009).
Any resolution, rule, or regulation made or any formal or quasi-formal action taken by a public body at a meeting which is not public or for which notice was not given is invalid. Colo. Rev. Stat. § 24-6-402(8). Lanes v. State Auditor's Office, 797 P.2d 764 (Colo. App. 1990); see Hyde v. Banking Board, supra (invalidating order of board issued at meeting where no public notice of meeting was given). 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).
Minutes of meeting for which notice was invalid are public records and must be released. Gumina v. City of Sterling, 119 P.3d 527, 530 (Colo. App. 2004) (Colo. App. 2004); Zubeck v. El Paso Cty. Ret. Plan, 961 P.2d 597, 600 (Colo. App. 1998); Worldwest Ltd. Liability Co. v. Steamboat Springs Sch. Dist. RE-2, 37 Media L. Rptr. 1663 (Colo. App. 2009); Ctr. for Indep. Media v. Indep. Ethics Comm’n of Colo., No. 09-cv-5109, 37 Media L. Rep. (BNA) 2522 (Colo. Denver Dist. Ct. Aug. 31, 2009).
A planned executive session must be contained in the posted agenda.
If a notice of appeal concerns an announced agency decision to meet in executive session or an ongoing agency practice of meeting in executive sessions, for a stated purpose, the commission or a member or members of the commission designated by its chairperson shall serve notice upon the parties in accordance with this section and hold a preliminary hearing on the appeal within seventy-two hours after receipt of the notice, provided such notice shall be given to the parties at least forty-eight hours prior to such hearing. If after the preliminary hearing the commission finds probable cause to believe that the agency decision or practice is in violation of sections 1-200 and 1-225, the agency shall not meet in executive session for such purpose until the commission decides the appeal. If probable cause is found by the commission, it shall conduct a final hearing on the appeal and render its decision within five days of the completion of the preliminary hearing. Conn. Gen. Stat. §1-206(b)(1).
In Ethics Commission, Glastonbury v. FOIC, 2007 Conn. Super. LEXIS 3095 (2007), the court upheld a sanction imposed by the FOIC that the public agency make and maintain electronic audio recordings of all its executive sessions for three years.
Notice must be given at least seven days in advance for an executive session called during a regular meeting and at least 24 hours in advance for an executive session called during a special meeting. 29 Del. C. § 10004(e)(4). A public body meeting only to discuss matters authorized for executive session must still notice the meeting to the public so that the public has the opportunity to attend the opening of the meeting, to see that the public body follows the required procedures for going into executive session, and to observe any discussion of any public business that follows. Del. Op. Att’y Gen., No. 02-ib17 (Aug. 6, 2002).
The purpose of such executive sessions shall be set forth in the agenda and shall be limited to the purposes listed in Section 10004(b) of the Act. 29 Del. C. § 10004(c); see Common Cause of Del. v. Red Clay Consol. Sch. Dist., 1995 WL 733401 (Del. Ch. Dec. 5, 1995); Del. Op. Att’y Gen., No. 01-ib03 (Feb. 16, 2001) (the reasons for an executive session must be clearly delineated in the agenda); Del. Op. Att’y Gen., No. 03-ib20 (Sept. 3, 2003) (agenda listed a topic authorized by section 10004(b)(9) as one suitable for executive session, but since town council discussed item that would have been suitable for executive session under a different section of 10004(b)(1), a technical FOIA violation had occurred).
Failure to give adequate notice could result in the action taken at the meeting being voidable. 29 Del. C. § 10005(a); see also Del. Op. Att’y Gen., No. 02-ib33 (Dec. 23, 2002).
District of Columbia
Closed meetings are subject to the same notice requirements as open meetings. See D.C. Code Ann. § 2-576(1).
In addition to their general authority to order appropriate remedies for violations of the Open Meetings Act, courts have special authorities related to closed meetings. First, if a court finds that a member of a public body engages in a pattern or practice of willfully participating in one or more closed meetings in violation of the provisions of the Open Meetings Act—presumably including those related to adequate notice—the court may impose a civil fine of not more than $ 250 for each violation. See D.C. Code Ann. § 2-579(e). Second, if a court finds that a public body plans to hold a closed meeting in violation of the Act, it may enjoin the public body from closing the meeting, order that future meetings of the same kind be open, or order that the record of a meeting be made public. Id. § 2-579(c).
The Act provides that no agency may close any portion of any meeting—i.e., go into executive session—except by a majority vote, in public session, of the quorum present. O.C.G.A. § 50-14-1(b)(1); § 50-14-4(a). Meetings at which an agency contemplates going into executive session are not excepted from the Act’s requirements that the agency afford due notice of the meeting and comply with the Act’s posting and agenda requirements. Id.
The time limit for giving notice of executive and limited meetings is the same as regular meetings — at least six days in advance. Haw. Rev. Stat. §§ 92-3.1(3), 92-7. Notice must be given to all those included on the board's mailing list of individuals requesting notice six days in advance or as soon as practicable. Id. § 92-7.
The posting and agenda requirements are the same for regular meetings and for executive and limited meetings. The purpose for holding an executive meeting must be stated. Id. § 92-7(a).
Regarding penalties for failure to give adequate notice, a final action is voidable upon proof of a violation. Id. § 92-11.
Executive sessions carry the same particular notice requirements in the Open Meeting Law as provided for regular or special meetings, if the executive session is part of such a meeting. If an executive session only will be held, a 24-hour meeting and agenda notice is required, otherwise consistent with special meeting notice requirements. Idaho Code § 74-204(3). The executive session notice must also state the reason and the specific provision of law authorizing the executive session. Id. The general penalties under the law also apply to violations of the notice requirements concerning executive sessions. Idaho Code § 74-208.
If proper notice has been given for an open meeting, the public body may hold a closed meeting without additional notice. See 5 ILCS 120/2a. However, “the vote of each member on the question of holding a meeting closed to the public and a citation to the specific exception contained in Section 2 of this Act which authorizes the closing of the meeting to the public shall be publicly disclosed at the time of the vote and shall be recorded and entered into the minutes of the meeting.” 5 ILCS 120/2a (emphasis added).
There is no requirement that the notice or agenda include a reference to a closed session.
No agenda is required to be published for a closed meeting, but the provision of the Act authorizing the closed meeting must be publicly disclosed and be recorded and entered into the minutes of the meeting at the time the vote to close is taken. See 5 ILCS 120/2a. Although citation to the statutory subsection of the Act authorizing closure of the meeting is helpful, it is not required; a public body need only quote or call attention to the exception upon which it relies. Henry v. Anderson, 356 Ill. App. 3d 952, 955, 827 N.E.2d 522, 524, 292 Ill. Dec. 993, 995 (4th Dist. 2005).
The notice requirements for executive sessions are the same as for regular sessions, Ind. Code § 5-14-1.5-5, except the notice for an executive session must also state the subject matter of the meeting by specific reference to the statutory exemptions for which executive sessions may be held. Ind. Code § 5-14-1.5-6.1(d); see also Gary/Chicago Airport Bd. of Auth. v. Maclin, 772 N.E.2d 463, 468 (Ind. App. 2002) (board violated the Open Door Law because notice of executive session failed to state the subject matter by specific reference to the enumerated instance or instances for which executive sessions may be held under Ind. Code § 5-14-1.5-6.1(b)); Frye v. Vigo Cnty., 789 N.E.2d 188, 194 (Ind. Ct. App. 2002) (holding that the executive session notice did not meet the special requirements). At least 48-hour notice (not including Saturdays, Sundays, or legal holidays) before the meeting is required. Ind. Code § 5-14-1.5-5(a).
Notice must be given to the public and to all news media which annually request it. The news media must expressly request to receive notice of all meetings for the calendar year by submitting a written request to the public agency by Jan. 1 of each year. Ind. Code § 5-14-1.5-5(b). A state agency must provide electronic access to the notice through the computer gateway administered by the office of technology under Ind. Code § 4-13.1-2-1. Ind. Code § 5-14-1.5-5(b).
The notice must be posted at the principal office of the public agency holding the meeting or, if no such office exists, at the building where the meeting is to be held; and by mailing (with postage prepaid), e-mailing or faxing notice to all news media which provide the governing body of the public agency with an annual written request for such notices. Ind. Code § 5-14-1.5-5.
If the governing body uses an agenda, the agenda must be posted at the entrance to the location of the meeting prior to the meeting. Ind. Code § 5-14-1.5-4(a). The Open Door Law does not specify what agenda items are required, however. Yet, the statute specifically provides that “a rule, regulation, ordinance, or other final action adopted by reference to agenda item alone is void.” Id.
Failure to give proper notice of an executive session violates the Open Door Law. See Town of Merrillville v. Blanco, 687 N.E.2d 191, 201 (Ind. App. 1997) (executive session violated the Open Door Law, where board of metropolitan police commissioners’ notice of hearing failed to inform the public that an executive session would be held). There are penalties for failing to provide adequate notice of regular meetings, Ind. Code § 5-14-1.5-7, but a violation may not result in a reversal of the action taken at the executive session. See Thornberry v. City of Hobart, 887 N.E.2d 110, 117–18 (Ind. Ct. App. 2008). Further, injunctions may be granted for threatened violations of the Open Door Law. See Common Council of City of Peru v. Peru Daily Tribune, 440 N.E.2d 726, 733 (Ind. Ct. App. 1982) (holding that proposed executive sessions threatened violation of the Open Door Law).
No additional notice requirements are imposed, simply because the governmental body intends to hold a closed session. There are no requirements separate from those imposed upon "regular" meetings. Twenty-four hours’ notice must be provided to (a) the public; (b) news media who have filed a request for notice with the governmental body. Iowa Code § 21.4(1).
Notice must be posted “on a bulletin board or other prominent place which is easily accessible to the public and clearly designated for that purpose at the principal office of the body holding the meeting, or if not such office exists, at the building in which the meeting is to be held." Iowa Code § 21.4(1).
Before going into closed session, a public agency must give notice in the open meeting of “the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of [Ky. Rev. Stat.] 61.810 authorizing the closed session.” Ky. Rev. Stat. 61.815(1)(a)
No matters may be discussed in a closed session "other than those publicly announced prior to convening the closed session." Ky. Rev. Stat. 61.815(1)(d).
"There must be specific and complete notification in the open meeting of any and all topics which are to be discussed during the closed meeting. The specific reason given for a closed session must be the only topic of discussion while the Board convenes in such a secret session." Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 924 (Ky. 1997). Discussions in closed session between Members concerning matters not identified in the open meeting with proper notice are a violation of the Open Meetings Act and constitute illegal conduct which may be voided by a court. Id.
A notice which merely stated that the closed session was for discussions concerning "property and negotiations" failed to comply with the notice requirement. The notice failed to reveal whether the property was real or personal, whether the Board proposed to purchase or sell the property, and whether the publicity would affect its value. Jefferson County Bd. of Educ. v. Courier-Journal, 551 S.W.2d 25 (Ky. Ct. App. 1977); see also Reed v. City of Richmond, 582 S.W.2d 651 (Ky. Ct. App. 1979).
A court may void any action taken by a public agency if it fails to substantially comply with the notice requirements for closed meetings. See Ky. Rev. Stat. 61.848(5); Carter v. Smith, 366 S.W.3d 414 (Ky. 2012).
A public body may hold executive sessions only upon an affirmative vote of two-thirds of its constituent members present at an open meeting for which notice was given pursuant to La. Rev. Stat. Ann. § 42:19. La. Rev. Stat. Ann. § 42:16. Once a meeting is called and notice given, it may not be canceled or converted into an executive session except in compliance with statutory procedure. Norris v. Monroe City School Bd., 580 So.2d 425 (La. App. 2nd Cir. 1991).
There are no special requirements for the time limit for giving notice of executive sessions, for who must be given notice of executive sessions, for where notice must be posted for executive sessions, for agenda items for executive sessions, or for penalties for failure to give adequate notice of executive sessions.
Note, however, that there must be attached to the notice of meeting a statement identifying the court, case number, and the parties relative to any pending litigation to be considered; and a statement identifying the parties involved and reasonably identifying the subject matter of any prospective litigation to be considered for which formal written demand has been received. La. Rev. Stat. Ann. 42:19(A)(l). The statement must be attached regardless of whether such matters will be discussed in an executive session. Id.
Public notice must be given for all public proceedings in ample time to allow public attendance. Notice must be disseminated in a manner reasonably calculated to notify the general public in the jurisdiction served by the body or agency concerned. 1 M.R.S.A. § 406. No Maine decision specifically addresses whether the notice must refer to any executive session planned for a meeting, but providing notice of any anticipated executive session is good practice vis-à-vis members of the body itself and the public. A notice that does not actually say what is going to take place at a meeting may be “notice” in name only.
An executive session may be called only by a public recorded vote of 3/5 of the members, present and voting, of a body or agency. The motion must state the precise nature of the business of the session. 1 M.R.S.A. § 405(4).
The Act requires notice of all meetings subject to its provisions, whether or not they are closed. § 3-302(a). No special notice, provisions are required prior to conducting a closed meeting. However, prior to closing the meeting, the public body must publicly vote to do so and must provide a written statement of the reasons for closure. § 3-305(d). Additionally, the reopening of a previously closed meeting requires a good-faith effort to notify the press and public of the changed status of the meeting. See 03 OMCB 01-115 (2001). Further, the Act is violated if a meeting is open in name but not in reality. Id. (citing prior opinions).
Before meeting in open or closed session, the public body must give reasonable advance notice. § 3-302(a); see also Malamis v. Stein, 69 Md. App. 221, 516 A.2d 1039 (1986); City of New Carrollton v. Rogers, 287 Md. 56, 410 A.2d 1070 (1980); 64 Op. Att'y Gen. 20 (1979). The Act does not provide a specific time limit for giving notice, but "adequate" and "reasonable advance notice" is required. §§ 3-102(c), 3-302(a).
There are no special notice requirements for closed meetings. Units of the state government may publish notice in the Maryland Register. § 3-302(c)(1). For other public bodies, notice may be given by delivery to members of the news media who regularly report on such matters, or by any other reasonable method. §§ .3-302(c)(2), (c)(4).
Posting notice at a convenient public location at or near the place of the session or online at a website ordinarily used by the public body to provide information to the public is permitted provided that the public body has previously used such methods to provide public notice. § 3-3-302(c)(3).
The notice is required to be in writing and must include the date, time, and place of the session. § 3-302(b). A statement of the reasons for closing the meeting, authority for doing so, and a listing of the topics to be discussed must be made prior to closing the meeting. § 3-305(d)(2)(ii). A public body shall keep a copy of the written statement for at least one year after the date of the session. § 3-305(d)(5).
The notice shall, when reasonable and if appropriate, state that all or part of the meeting may be conducted in closed session. § 3-302(b)(3). A statement of the reasons for closing the meeting, authority for doing so, and a listing of the topics to be discussed must be made prior to closing the meeting. § 3-305(d)(2)(ii). Notice has been found sufficient, even though not formal, where information was conveyed to the press and advance notice of the meeting had been given to the public. 64 Op. Att'y Gen. 20 (1979).
The Act provides two venues for redress for persons adversely affected by a public body's failure to comply with the Act's requirements, the Circuit Court and the OMCB.
Under the first, an adversely affected person may file a petition in the circuit court having proper venue, seeking declaratory relief, injunctive relief, a ruling that voids the action of the body altogether, or any other remedy that the court deems appropriate. § 3-401(b). In an action pursuant to the Act, the public body is presumed to have complied with the Act and the complainant has the burden of proving violation vel non. § 3-401(c); see also Suburban Hospital Inc. v. Maryland Health Resources Planning Comm'n, 125 Md. App. 579, 588-89, 726 A.2d 807, 811 (1999). Injunctions and declaratory relief are available without proof that the violation was willful. 125 Md. App. at 590, 726 A.2d at 812. If the violation was willful, however, and no other remedy is adequate, the court may void the final action of the public body. § 3-401(d)(4); see also 125 Md. App. at 590, 726 A.2d at 812. "Willfully" under § 3-401(d), has been defined by the Maryland Court of Special Appeals as "non-accidentally," and not requiring knowledge that the meeting actually violates the Act. 125 Md. App. at 596-97, 726 A.2d at 815.
The court may also award attorneys' fees and expenses to the prevailing party. § 10-510(d)(5). Wesley Chapel Bluemount Ass'n v. Baltimore County, 347 Md. 125, 150, 699 A.2d 434, 447 (1997). A prevailing party is not automatically entitled to recover its fees, however, nor does the fact of prevailing create a presumption in favor of a fee award. Baltimore County v. Wesley Chapel Bluemount Ass'n, 128 Md. App. 180, 189, 736 A.2d 1177, 1183 (1999). The prevailing party need not prove that the public body acted willfully in order to succeed on its attorneys' fees claim. Id.; see also Suburban Hospital Inc., 125 Md. App. 579, 591, 726 A.2d 807, 812 (1999). Rather, in determining whether a fee award is appropriate, the court is to consider a variety of factors, including the public body's basis for closing the session, its degree of willfulness (if present), whether the issue of the applicability of the Act required appellate review, and the benefit to the parties and the public in resolving the issue. Id.
A public body that willfully convenes a closed meeting with knowledge that the meeting is held in violation of the Act is subject to a civil penalty not to exceed $250 for the first violation and $1,000 for each subsequent violation occurring within 3 years after the first violation. § 3-402. The Maryland Court of Special Appeals, in this context, has noted that a higher level of violative conduct is required under § 3-402 because that provision imposes a more "personally intrusive penalty" on members of the public body than the "general curative remedies established by § [3-401] for the public body as a whole." Suburban Hospital, 125 Md. App. at 592, 726 A.2d at 813.
Alternatively, any person may file a complaint regarding a past or anticipated future violation of the Act by a public body with the OMCB. §§ 3-205 through 3-212. Upon consideration of the complaint and response, the Board will render an opinion concerning the propriety of the body's action. § 3-207. Its opinion cannot compel action by the public body, is solely advisory, and may not be used as evidence in a subsequent judicial proceeding. §§ 3-209 to 3-211. If the complaint concerns an anticipated future violation, the Act provides an expedited procedure for Board review. § 3-212.
Time limit for giving notice.
The time limit for giving notice is the same as for regular meetings — 48 hours, excluding Saturdays, Sundays and legal holidays. See G.L. c. 30A, § 20(b).
To whom notice is given.
Posting only, although many boards also notify members, and some notify the local press.
Same as for regular meetings. G.L. c. 30A, § 20(c).
Penalties and remedies for failure to give adequate notice.
The same as for regular meetings, that is, possible judicial invalidation of action taken at meeting and remote possibility of fine.
While the OMA contains no express definition of closed meetings, it does state: "A meeting of a public body shall not be held unless public notice is given as provided in this section by a person designated by the public body." Mich. Comp. Laws Ann. § 15.265(1). A public body must meet in public before closing a meeting and take a 2/3 roll call vote of its members to enter into a closed session. Id. § 15.267(1). Additionally, for purposes of calling a closed meeting, there must be a two-thirds roll call vote of all the members of the public body appointed and serving, not merely two-thirds of those attending the particular meeting. 1977 Op. Att’y. Gen. 5183, p. 21. (1977). Thus, notice of the public meeting during which the 2/3 vote is taken must be given in accordance with Mich. Comp. Laws Ann. § 15.264.
Pursuant to Mich. Comp. Laws Ann. § 15.265, notice for regular meetings must be posted within 10 days of the first meeting of the body with all the dates, times and places of the regular meetings. Mich. Comp. Laws Ann. § 15.265(2). Rescheduled or special meetings must provide at least 18 hours’ notice, and for conference calls, 6 hours’ notice. Id. § 15.265(4).
Notice of meetings must be posted at the principal office of the public body and “any other locations considered appropriate by the public body.” Id. § 15.264(a), (b). Cable television may also be used. Id. For public bodies without a “principal office,” notice must be posted at the county clerk’s office in which the public body serves. Id. § 15.264(d). For state public bodies without a principal office, notice must be posted in the office of the secretary of state. Id.
Nothing more is required in the notice/agenda other than the public body’s name, telephone number and address. Id. § 15.264(a); see also Lysogorski v. Bridgeport Charter Twp., 662 N.W.2d 108 (Mich. App. 2003) (finding that an agenda containing only the public body’s name, address and telephone number was properly published and satisfied the notice requirement). The nature of the business to be conducted at the meeting does not need to be set forth in advance. Mich. Comp. Laws Ann. § 15.264(a); see also Haven v. City of Troy, 197 N.W.2d 496 (Mich. App. 1972).
The Open Meeting Law states that its notice requirements apply to closed meetings as well as open meetings. Minn. Stat. § 13D.04, subd. 5.
In addition, if a public body decides to hold a closed meeting "to consider strategy for labor negotiations, including negotiation strategies or developments or discussion and review of labor negotiation proposals," the time and place of the closed meeting shall be announced in a public meeting. Minn. Stat. § 13D.03, subds. 1(b) and (c).
Notice must be given as for other meetings. The meeting must begin as an open meeting and requires a three-fifths vote to declare an executive session. § 25-41-7(1); see Op. Att'y Gen. June 13, 1990 to Freddie Love (application of § 25-41-7 to a meeting of a mayor and city aldermen).
The time limits, to whom the notice should be given, and where such notice is posted are the same as for other meetings.
A public governmental body proposing to hold a closed meeting or vote shall comply with the notice requirements for public meetings set forth above. Notice must be given at least twenty-four hours prior to the commencement of any meeting of a governmental body unless for good cause such notice is impossible or impractical, in which case as much notice as is reasonably possible must be given. Mo.Rev.Stat. § 610.020.2 & .4.
Notice must reasonably apprise the public. Reasonable notice includes making available copies of the notice to any representative of the news media who requests notice of the meetings of a particular government body. Mo.Rev.Stat. § 610.020.1.
Reasonable notice requires posting of notice of meetings of public governmental bodies on a bulletin board or other prominent place which is easily accessible to the public and clearly designated for that purpose at the principal office of the body holding the meeting. If the body has no such office, notice is to be posted at the building in which the meeting is to be held. Mo.Rev.Stat. § 610.020.1.
Public governmental bodies must give tentative agendas for meetings in their notices of those meetings. Mo.Rev.Stat. § 610.020.1.
A public governmental body proposing to hold a closing meeting must give notice of the time, date and place of such closed meeting and the reason for holding it by reference to a specific exception in the Sunshine Law authorizing closure. Mo.Rev.Stat. § 610.022.2.
Where the court finds by a preponderance of the evidence that a public governmental body or a member of a public governmental body purposefully violated the Sunshine Law, it may order that member to pay a civil fine up to $5,000. Mo.Rev.Stat. § 610.027.4. Where the court finds by a preponderance of the evidence that a public governmental body or a member of a public governmental body knowingly violated the Sunshine Law, it may order that member to pay a civil fine up to $1,000. Mo.Rev.Stat.§ 610.027.3. See The Kansas City Star v. Shields, 771 S.W.2d 101, 105 (Mo.Ct.App. 1989) (affirmed a fine imposed on a member of city council who failed to leave a meeting of the council’s finance committee that violated the Sunshine Law); Strake v. Robinwood West Cmty. Improvement Dist., 473 S.W.3d 642, 645 (Mo. banc 2015) (Court held that community improvement district refusal to provide requested documents related to the district’s settlement of a personal injury lawsuit was part of a conscious design, intent, or plan to violate the Sunshine Law with awareness of the probable consequences, therefore amounting to a purposeful violation, even though the settlement agreement included a confidentiality clause barring disclosure unless required by law or by order of the court, and even though the district’s attorney advised the district not to disclose the settlement agreement). But see Laut v. City of Arnold, 491 S.W.3d 191 (Mo. 2016) (Court held that to be subject to penalty under § 610.027.3 the governmental body’s purpose must be to violate the Sunshine law, not merely to not produce a government document for trial).
The court “shall void any action taken in violation of [the law] if the court finds under the facts of the particular case that the public interest in enforcement of the policy of [the law] outweighs the public interest in sustaining the validity of the action taken at the closed meeting.” Mo.Rev.Stat. § 610.027.5.
Closed meetings are subject to the same requirements as open meetings.
In addition to the notice requirements for open meetings, a closed meeting to consider the character, misconduct, competence or health of a person may not be held unless the subject of the meeting is served with written notice of the meeting. NRS 241.033. The agenda must state the purpose for the closed meeting and the name of the person whose character, alleged misconduct or professional competence will be considered in a closed meeting. NRS 241.020(4).
The penalties for failing to give adequate notice of a closed meeting are the same as for open meetings.
Notice requirements are the same as for regular meetings. Penalties are the same as for any other violation of the Statute. See RSA 91-A:8; Voelbel v. Town of Bridgewater, 140 N.H. 446 (1995); Carter v. City of Nashua, 113 N.H. 407 (1973); Stoneman v. Tamworth Sch. Dist., 114 N.H. 371 (1974).
In order to go into closed session, a public body must adopt a resolution at a public meeting. N.J.S.A. 10:4-13. Once the resolution to go into closed session is adopted at a public meeting, no further notice of the closed session is required. N.J.S.A. 10:4-13; see also Atty. Gen. Formal Op. 1976, No. 29. However, where the closed session is to discuss termination or disciplining of personnel, actual notice of the session must be given to the affected employees so they can decide if they desire a public meeting. See Rice v. Union County Regional High School Bd. of Educ., 155 N.J. Super. 64, 71, 382 A.2d 386 (App. Div. 1977); see also Kean Fed’n of Teachers v. Morell, 233 N.J 566, 586, 187 A.3d 153, 165 (2018).
Adequate notice for the public meeting at which the resolution to enter into executive session has been adopted must be given pursuant to N.J.S.A. 10:4-8.
The resolution to go into closed session must: (i) state the "general nature" of the subject matter to be discussed in the closed session, and (ii) state "as precisely as possible" the time when and the circumstances under which the discussion conducted in closed session can be disclosed to the public. N.J.S.A. 10:4-13.
The penalties and remedies for improperly resolving to go into closed session are the same as those for other violations, i.e., injunctive relief, voiding of the action taken, and fines. See N.J.S.A. 10:4-15, 16 and 17.
If made by motion in an on-going open meeting, no separate, additional notice is necessary. NMSA 1978 § 10-15-1(I)(1). If called for when the public body is not in an open meeting, "appropriate" notice is required. NMSA 1978 § 10-15-1(I)(2); see also NMSA 1978 § 10-15-1(D) (requiring a public body to determine at least annually what notice for public meetings is reasonable). Notice is required in an open meeting, to those persons present at the meeting. NMSA 1978 § 10-15-1(I)(1). If scheduled when the public body is not in an open meeting, notice must be given to the members and to the general public. NMSA 1978 § 10-15-1(I)(2). NMSA 1978 § 10-15-1(B), requiring the public body to determine what notice is reasonable, may be applicable. No specific statutory obligation to post in particular places or mediums exists, but the Attorney General has advised that posting in places readily accessible to the public is necessary. 1993 Op. Att’y Gen. No. 93-2. Additionally, arguably, the notice must include broadcast stations licensed by the FCC and those papers of general circulation that have provided a written request for such notice. The general subject must be identified with "reasonable specificity.” NMSA 1978 § 10-15-1(I)(1). In terms of possible penalties for failure to provide adequate or timely notice, a resolution, rule, regulation, ordinance, or action of any public body is not valid unless taken or made at a meeting held in accordance with all of the requirements of the New Mexico Open Meetings Act. NMSA 1978 § 10-15-3(A).
A public body may go into executive session “upon a majority vote of its total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered.” N.Y. Pub. Off. Law § 105(1) (McKinney 1988). An executive session may not be had until the appropriate motion is made and adopted at an open meeting of the public entity involved. Oneonta Star v. Bd. of Trustees, 66 A.D.2d 51, 412 N.Y.S.2d 927 (3d Dep’t 1979).
Closed sessions are authorized only upon a majority vote, taken in an open meeting, on a motion to go into executive session. N.Y. Pub. Off. Law § 105(1) (McKinney 1988). It is improper for a public body to schedule an executive session in advance of an open meeting. Gordon v. Vill. of Monticello, 87 N.Y.2d 124, 661 N.E.2d 691 (1995); Doolittle v. Board of Educ., No. 81-1942 (Sup. Ct., Chemung Cty., Oct. 20, 1981); Steele v. City of Niagara Falls, (Sup. Ct., Niagara Cty., March 31, 1980); Contra Previdi v. Hirsch, 138 Misc.2d 436, 524 N.Y.S.2d 643 (Sup. Ct. 1988) (posting of a single notice on a school bulletin board is inadequate notice of an executive session held later the same day; the executive session could have been scheduled for another date and more extensive notice given); Stephenson v. Bd. of Educ. of Hamburg Cent. Sch. Dist., No. 12597/2010, 2011 WL 1877621 (Sup. Ct., Erie Cty., May 17, 2011) (executive session improperly scheduled before a properly noticed public meeting violated OML).
Notice is provided to those present during the closure vote taken in the open meeting. N.Y. Pub. Off. Law § 105(1) (McKinney 1988).
The OML does not require that notice of a meeting include a proposed agenda. Parents v. Board of Educ., (Sup. Ct., Ulster Cty., Sept. 22, 1982); Exmoor House, LLC v. Vill. of Millbrook Planning Bd., 82 A.D.3d 763, 917 N.Y.S.2d 905 (2d Dep’t 2011) (notice of the agenda of a special meeting need not be given to the public).
A court has the power, in its discretion and upon good cause shown, to declare void any action taken in violation of the OML. N.Y. Pub. Off. Law § 107(1) (McKinney 1988). This discretion may be exercised in instances of violations relating to executive sessions; however, “[i]nclusion by the legislature of this language vesting in the courts the discretion to grant remedial relief makes it abundantly clear that not every breach of the Open Meetings Law automatically triggers its enforcement sanctions.” Matter of Krauss v Suffolk Cty. Bd. of Elections, 61 N.Y.S.3d 569 (2d Dep’t 2017), citing New York University v. Whalen, 46 N.Y.2d 734, 386 N.E.2d 245, 413 N.Y.S.2d 637 (1978); Compare, e.g., Weatherwax v. Town of Stony Point, 97 A.D.2d 840, 468 N.Y.S.2d 914 (2d Dep’t 1983) (invalidating action taken by town board which was made at an improperly convened executive session after which no notice was provided that action had been taken) with Sanna v. Lindenhurst Bd. of Educ., 58 N.Y.2d 626, 444 N.E.2d 975, 458 N.Y.S.2d 511 (1982) (upholding school board’s decision to dismiss a teacher even though made at improperly convened executive session); Specht v. Town of Cornwall, 13 A.D.3d 380, 786 N.Y.S.2d 546 (2d Dep’t 2004) (The Town of Cornwall fired Specht, a probationary employee in its police department, for performance reasons. At the request of the Chief of Police, the Town Board unanimously voted to terminate her employment. Because the Board failed to record this decision in the minutes of its executive session, the trial court found that it had violated the Open Meetings Law, Public Officers Law § 106(2). The intermediate appellate court reversed and dismissed the appeal, holding that the Board’s action was merely a technical violation of the Open Meetings Law that did not require the determination to be annulled because it was not prejudicial. Proof of the termination decision was contained in affidavits and record entry that the Board had adjourned to executive session to meet with counsel and discuss the employment history of an employee. Further, the violation could be corrected if the Board recorded its vote in the minutes of its executive session).
Public bodies must establish a schedule of regular meetings and make that schedule public. Otherwise, there is no requirement of notice of each meeting. Nor is there any requirement that notice be provided that the public body will meet in closed session.
The penalties and remedies are the same as for any other violation of the Open Meetings Law.
The notice given for the general meeting also contain the general subject matter of any executive session expected to be held during the meeting. N.D.C.C. § 44-04-20(2).
Before holding an executive session, the governing body must first convene in an open session and, unless a confidential meeting is required, passes a motion to hold an executive session. N.D.C.C. § 44-04-19.2(2). Additionally, the governing body must announce during the open portion of the meeting the topics to be discussed or considered during the executive session and the body’s legal authority for holding an executive session on those topics. N.D.C.C. § 44-04-19.2(2).
Executive sessions can occur only during the course of open regular or special sessions. Ohio Rev. Code § 121.22(G). Accordingly, the same notice provisions that apply to regular and special meetings apply to executive sessions, although the notice need not state an intention to hold or call for an executive session.
To convene an executive session, the public body must first hold a roll call vote, and a majority of the body's quorum must vote affirmatively for the executive session. Immediately upon such a vote, the body may convene the executive session. Ohio Rev. Code § 121.22(G).
Anyone who has paid a reasonable fee and requested advance notice of the body's discussion of certain subject matter is entitled to advance notice of that discussion, with no distinction between open and closed discussion. See Ohio Rev. Code § 121.22(F).
Generally, a public body need provide notice of executive sessions only to those present at the regular or special meeting at which the executive session is being convened. Ohio Rev. Code § 121.22(G).
Notice of executive sessions per se need not be posted; it is primarily given by oral motion and roll call vote. Ohio Rev. Code § 121.22(F), (G).
Anyone who has paid a reasonable fee and requested advance notice of the body's discussion of certain subject matter is entitled to advance notice of that discussion, with no distinction between open and closed discussion. See Ohio Rev. Code § 121.22(F).
Information required in notice of executive session is: a roll call vote, specifying the purpose or purposes of the executive session, such as to discuss negotiation strategy for a collective bargaining contract. Ohio Rev. Code § 121.22(G).
If a public body holds an executive session for personnel matters, the motion and vote to hold that executive session must state the specific kind of personnel matter to be discussed, e.g., discipline of a public employee. The notice need not name the person being considered. Ohio Rev. Code § 121.22(G)(1).
Failure to provide notice of executive sessions as provided by law could invalidate official action taken as a result of the executive session. Ohio Rev. Code § 121.22(H).
The remedies available to enforce the notice requirements are injunction, and probably an extraordinary writ of mandamus or mandatory injunction. Ohio Rev. Code § 121.22(I) (injunction); see White v. Clinton Cty. Bd. of Comm'rs, 76 Ohio St. 3d 416, 667 N.E.2d 1223 (1996) (mandamus).
The statute also provides for a civil forfeiture of $500 and a discretionary award of court costs and attorneys' fees. Ohio Rev. Code § 121.22(I)(2). The statute also provides that "[a] resolution, rule, or formal action adopted in an open meeting that results from deliberations in a meeting not open to the public is invalid" unless the closed session was held in accordance with the statute's requirements. Ohio Rev. Code § 121.22(H).
If a public body proposes to go into executive session, the proposal must appear on the agenda of the regular, special or emergency meeting. 25 O.S. § 311.B.1.
The agenda must be posted in the same place as required by the particular meeting in which the executive session is a part. Id.
The agenda shall contain sufficient information for the public to ascertain that an executive session will be proposed, identify the item of business and purpose for the executive session and state the specific statutory authorization for the executive session. 25 O.S. § 311.B.2; see also 1997 OK AG 61 (“[T]he word ‘identify’ as used in Section 311(B), connotes a requirement by the Legislature that public bodies must provide the public with enough information on its agenda to all the public to know the nature of an executive session discussion.”).
The items to be discussed on the agenda are limited to the areas which are specifically outlined under the Act. Public notice posted in advance of a meeting shall state if such meeting will be conducted via video conferencing. 25 O.S. § 307.1.A.2.
Any willful violation can result in a misdemeanor prosecution. 25 O.S. § 307.F.1. If the act is violated all minutes and other records of the executive session, including tape recordings, are immediately made public. 25 O.S. § 307.F.2.
The notice requirements for an executive session are generally the same as those for a non-executive session meeting. However, for an executive session, the notice must also provide the statutory justification for holding the executive session. ORS 192.640.
ORS 192.640(2) specifies that if an executive session is to be the exclusive basis of a meeting, the notice is to state the specific provision authorizing the executive session. While the statute requires advance notice of executive session matters, there are instances where the executive session is called during the course of a regular meeting without previous notice of the executive session. The law allows such a practice. ORS 192.660(1). The statutory basis for an executive session called during a regular meeting must be specified before the executive session begins, however.
The penalties and remedies are the same as those for regular meetings.
The executive session may be held during an open meeting or at the conclusion of an open meeting, or it may be announced for a future time. 65 Pa. C.S.A. § 708(b).
The reason for holding an executive session must be announced at the open meeting occurring “immediately prior or subsequent to the executive session.” 65 Pa. C.S.A. § 708(b). If the session is not announced for a specific future time, the Act requires that agency members receive 24 hours’ notice of the time, date and place of the meeting and the purpose of the executive session. Id.
Beyond the announcement of the session and statement of its purpose, the Act does not require that a notice be “posted” or publicly list specific agenda items or other information.
The reasons given for holding an executive session “must be specific, indicating a real, discrete matter that is best addressed in private.” Reading Eagle Co. v. Council of the City of Reading, 627 A.2d 305 (Pa. Commw. Ct. 1993). This level of specificity is necessary to allow the public “to determine from the reason given whether they are being properly excluded from the session.” Id.
In Reading Eagle, the court entered a permanent injunction that required all subsequent announcements of executive sessions to be given with the necessary specificity. 627 A.2d at 308.
The only special notice requirements provided in the OML are applicable only to closed meetings in which the job performance, character, or physical or mental health of a person or persons is going to be discussed or an executive session of a local school committee exclusively for the purposes (a) of conducting student disciplinary hearings or (b) of reviewing other matters which relate to the privacy of students and their records. R.I. Gen. Laws §§ 42-46-5(a)(1) and (8). With respect to each such meeting, advance written notice must be provided to the affected person(s) or student(s) and he or she must be advised that he or she may require that the discussion be held at an open meeting. Id. Failure to provide such notification shall render any action taken against the affected person(s) or student(s) null and void. Id. Before going into a closed meeting pursuant to this subsection, the public body shall state for the record that any person(s) or student(s) to be discussed have been so notified and this statement shall be noted in the minutes of the meeting. Id.
Otherwise, there is no special notice requirements for closed meetings.
Same time list for notice as for regular meetings.
The OML does not specifically address to whom notice must be given and only addresses the posting of notices.
Same posting requirements as for regular meetings.
The meeting agenda must give fair notice of what will be discussed in any closed session. Although reasonable minds can differ as to what will constitute fair notice in any given situation, the notice should give some specific indication of the nature of the business to be discussed in closed session, i.e., “a personnel matter”, and not simply reference that there will be a closed session. Op. Att’y Gen., OM 09-20/PR 09-36 (Dec. 17, 2009), 2009 WL 6329143. If more than one matter of a specific type will be discussed at the closed session, the agenda must indicate the number of matters to be discussed. Op. Att’y Gen., OM 07-05 (Apr. 11, 2007), 2007 WL 1696981. With respect to litigation matters and personnel matters, if the matter is not yet public the public body may simply list “litigation matter” or “personnel matter” in its agenda. But if the matter is already one of public record, such as a pending court case, the public body should state the name of the case. Id. If the closed meeting relates to threatened litigation on a subject where the public is already aware of the existing discord, it is not sufficient for a school committee to list an agenda item as simply “litigation”, there must be more specific notice of the subject, such as “Litigation—Threatened Litigation as to Breathalyzer Policy” or “Litigation – Breathalyzer Policy” on the public agenda, to more fairly inform the public. Phoenix-Times Publishing Co. v. Barrington School Committee, No. PC-2009-4665, 2010 R.I. Super. LEXIS 170 (R.I. Super. Nov. 15, 2010).
The same penalties and remedies apply as for regular meetings.
The OML provides for a maximum civil fine of $5,000.00 per meeting for willful violation of any provision in the OML. In addition, the court may issue injunctive relief and declare null and void any actions of a public body found in violation of the OML. R.I. Gen. Laws § 42-46-8.
One Court of Appeals decision has held that there is no obligation to give notice of an executive session. Herald Pub. Co. v. Barnwell, 351 S.E.2d 878 (S.C. App. 1986). It would seem that if there were to be action taken on the subject discussed in executive session, the action item would need to be on the agenda even if the executive session were not.
No notice other than the notice for a public meeting is required because an executive session must be convened from a public meeting. S.C. Code Ann. § 30-4-70.
Notice is to be given to local news media and other persons or groups who request notice, and notice of a meeting must be posted. S.C. Ann. § 30-4-80. Efforts to comply with such notification must be noted in the public body’s minutes. S.C. Code Ann. § 30-4-80(E).
Notice of the public meeting is to be posted in the office of the public body or at the place of the meeting, and the public body’s website if it has one. S.C. Code Ann. § 30-4-80.
No agenda is required for a regular meeting, but if used must be posted. An agenda is always required for a special meeting. S.C. Code Ann. § 30-4-80.
Notice of regularly scheduled meetings must be given at the first of each year, and must state at a minimum the date, time and place of the meetings. S.C. Code Ann. § 30-4-80(a).
The failure to give notice of a public meeting can result in injunctive relief against the public body. S.C. Code Ann. § 30-4-90. The failure to give notice of a meeting at which an ordinance was adopted led to the voiding of the ordinance by the court as an equitable remedy. Business License Opposition Committee v. Sumter County, 426 S.E. 2d 745 (S.C. 1992).
Executive sessions, if planned, should be noticed as part of the agenda of an open meeting under SDCL §1-25-1.1. In essence, executive sessions are meetings within meetings, and "notice" is technically given by the vote of the public body in the course of an open meeting, a requirement of SDCL §1-25-2. Maximum penalty for failure to close meeting properly and for a proper purpose is 30 days and/or $100 fine.
Any executive session must be provided in the agenda for the meeting. T.C.A. § 8-44-102(b)(1)(E)(ii). The time limit for notice is the same as for notice of open meeting. The notice should be to the persons to whom notice of the open meeting is given. The notice should be posted the same as for notice of open meeting. Requirements for agenda items for executive sessions are the same as those required for the notice of an open meeting.
The presiding officer must publicly announce at an open meeting that a closed session will be held.
Notice of an open meeting at which the announcement of a closed meeting will be made must be posted in a public place 72 hours before the scheduled time of the open meeting. Tex. Gov’t Code §§ 551.043, 551.101.
The notice must be given to the general public. Id. § 551.041. In some instances the news media must be given special notice by telephone or telegraph if they have both requested it and agreed to reimburse the governing body for the cost of providing the special notice. Id § 551.052 (stating the special notice required of school districts); Id. § 551.047 (stating the rule for noticing emergency meetings or when a meeting agenda has been supplemented).
A state governmental body shall provide notice of each meeting to the secretary of state, who shall then "post the notice on the Internet." Id. § 551.048. Furthermore, the "secretary of state shall provide during regular office hours a computer terminal at a place convenient to the public in the office of the secretary of state that members of the public may use to view the notice." Id. "A county governmental body shall post notice of each meeting on a bulletin board at a place convenient to the public in the county courthouse." Id. § 551.049. "A municipal governmental body shall post notice of each meeting on a bulletin board at a place convenient to the public in the city hall." Id. § 551.050. "A school district shall post notice of each meeting on a bulletin board at a place convenient to the public in the central administrative office of the district" and shall give notice by telephone or telegraph to any news media requesting such notice after agreeing to reimburse the district for the cost of providing the special notice. Id. §§ 551.051-.052.
The governing board of a single institution of higher education, in addition to providing any other notice required under the Act, must post notice of each meeting at the county courthouse and in a student newspaper. Id. § 551.055. The school can also post notice at another place convenient to the public. Id.
A governmental body of a water district or other district or political subdivision covering all or part of four or more counties must (1) post notice at a place convenient in its administrative office or political subdivision; (2) furnish the notice to the Secretary of State (who must post the notice on the Internet and provide during regular office hours a computer terminal at a place convenient to the public in the office of the secretary of state that members of the public may use to view the notice); and (3) furnish the notice to the county clerk of the county in which the administrative office of the district or political subdivision is located. Id. § 551.053. The clerk must then post notice on a bulletin board in a convenient place in the county courthouse. Id.
The governing body of a water district, other district, or other political subdivision [not covered by the preceding Section 551.053] must post the notice at a place convenient to the public in its administrative office and provide the notice to the county clerk or clerks of the county or counties in which the district or political subdivision is located. Id. § 551.054. The county clerk(s) must post the notice on a bulletin located at a place convenient to the public in the county courthouse. Id.
The following governmental bodies and economic development corporations must post notice of a meeting on the internet: (a) a municipality, (b) a county, (c) a school district, (d) the governing body of a junior college, and (e) a development corporation. This posting requirement is in addition to the other posting requirements. This section applies only to those governmental bodies or economic development corporations which maintain websites. A governmental body or economic development corporation which makes a good faith attempt to comply with this section is not affected by a technical problem beyond its control. Id. § 551.056.
The written notice must indicate the date, hour, place, and subject of each meeting held by the governmental body. Id. § 551.041. The notice must specifically disclose the subjects to be considered at the upcoming meeting. Cox Enter. Inc., 706 S.W.2d at 959. In addition, as public interest in a matter increases, the Act requires correspondingly more detailed descriptions of the subject to be discussed. Id. Therefore, notice should specifically and fully disclose the subjects to be considered. Finlan, 888 F. Supp. at 783. As public interest in a particular subject of a closed meeting increases, the notice must become more specific than for open meetings. Id.
Criminal penalties apply for a member of a governing body who, in connection with a closed meeting, knowingly violates the sections of the Act concerning closed meetings. Tex. Gov’t Code§ 551.144. Participation in such a meeting, among other things, is a misdemeanor punishable by a $100 to $500 fine, one to six months imprisonment in the county jail, or both. Id. The same fine and punishment range exist for governmental body members who knowingly engage in a series of communications to avoid the Act by meeting in numbers less than a quorum to deliberate in secret. Tex. Gov’t Code § 551.143.
A public body must give “not less than 24 hours’ public notice” of the agenda, date, time, and place of each of its meetings. Utah Code § 52-4-202(1). In addition, “a public body which holds regular meetings that are scheduled in advance over the course of a year shall give public notice at least once each year of its annual meeting schedule,” which notice must “specify the date, time, and place of the scheduled meetings.” Id. § 52-4-202(2). Notice must be provided by posting written notice at its principal office or, if no such office exists, at the building where the meeting is to be held and on the Utah Public Notice Website and by providing notice to at least one newspaper of general circulation within the geographic jurisdiction, or to a local media correspondent. Utah Code § 52-4-202(3)(a).
Public notice must include the meeting agenda. Id. § 52-4-202(1)(b). Although “[t]he absence of an item of business on the Agenda does not preclude its consideration, it would clearly violate the public policy behind the Act to strategically hide sensitive public issues behind the rubric of other business.” Ward v. Richfield City, 798 P.2d 757, 759 (Utah 1990) (quotations omitted). Notices also must specify the date, time, and place of the meeting. Utah Code § 52-4-202(1)(b)-(d).
Any final action taken by a public body in violation of the Open Meetings Act is “voidable by a court of competent jurisdiction.” Utah Code § 52-4-302(1)(a) (emphasis added). “Voidable” means that the court may overturn the action; it does not mean that the action is automatically void. The court may award court costs and reasonable attorneys’ fees to a successful plaintiff. Id. § 52-4-303(4).
The only statutorily required notice in advance of an executive session is by specific motion at the public meeting itself, which must “indicate the nature of the business of the executive session.” 1 V.S.A. § 313(a). The vote to go into executive session must be public and duly recorded in the minutes. Id.
The notice requirements governing regular meetings are applicable given that the public body must be in a properly convened meeting before members may vote to go into closed session. Once the open meeting is convened, the public body must move and vote in accordance with the provisions of Va. Code Ann. § 2.2-3712. Prior notice of closed meetings is not mandated, but the intention to conduct a closed meeting is typically disclosed in meeting agendas distributed in advance of regular meetings. An exception exists to the notice requirement when the public body is holding a closed meeting solely for the purpose of interviewing candidates for the position of chief administrative officer. For such interview, the public body must announce it will be holding closed meetings for that purpose within the next fifteen days. Va. Code. Ann. § 2.2-3712.B.
An announcement of an executive session can take place any time; there is no specified time limit. OPMA does not require posting of notice of an executive or closed session; however, the presiding officer of the governing body must publicly announce the purpose for excluding the public from the meeting place. The governing body is only required to publicly announce to those in attendance that it is going into an executive session. RCW 42.30.110(2).
At the time a meeting is closed, the presiding officer must announce when the executive session will be concluded and, if it is not concluded at that time, the presiding officer must make a subsequent announcement as to the extension of the time. Id.
If an agency fails to follow the minimal notice requirements of the OPMA, any person may commence an action for an injunction or mandamus. RCW 42.30.130. If the challenger prevails against the agency, he or she will recover his or her reasonable expenses and attorney fees in bringing the action, RCW 42.30.120(2). To prevail, the party need only establish that a violation occurred, not that the participants knowingly violated the law. See, e.g., Miller, 138 Wn.2d at 331-32 (awarding attorneys’ fees and costs despite findings that participants believed they were acting appropriately under the law. Also, any final actions taken may be declared null and void. RCW 42.30.060 (2000); Responsible Urban Growth Group v. Kent, 123 Wn.2d 376, 868 P.2d 861 (1994); Slaughter v. Snohomish Cnty. Fire Dist., 50 Wn. App. 733, 750 P.2d 656 (1988). Also, each member of the governing body who attends the meeting with knowledge that the meeting is in violation of the OPMA is personally liable for a civil penalty of $500 (or $1,000 after the first violation). RCW 42.30.120(1)–(2). A knowing violation can also result in a recall from office. In re Andersen, 131 Wn.2d 92, 929 P.2d 410 (1997); In re Recall of Roberts, 115 Wn.2d 551, 799 P.2d 736 (1990); Pedersen v. Moser, 99 Wn.2d 456, 662 P.2d 866 (1983); Cole v. Webster, 103 Wn.2d 280, 692 P.2d 799 (1984); Bocek v. Bailey, 81 Wn.2d 831, 505 P.2d 814 (1973). The Governor may also remove appointees confirmed by the Senate if the Governor believes such appointee has violated the OPMA. RCW 43.06.080; see also Price v. Seattle, 39 Wash. 376, 81 P. 847 (1905); State v. Johns, 139 Wash. 525, 248 P. 423 (1923) (confirming Governor’s plenary power to remove appointees believed to have committed misconduct or malfeasance).
The Open Meetings Act does not require any formal written notice be given before a public agency may go into executive session. Before a regular, special or emergency meeting can be closed, the presiding officer of the governing body must first identify the authorization under the statute for holding an executive session and present the issue to the governing body and to the general public. The governing body must approve of the closure by majority vote. W. Va. Code § 6-9A-4.
The presiding officer is required to announce to the other members of the governing body and the general public that the public agency is going to go into executive session and state the authority for doing so. Moreover, there is no requirement for posting the notice of an executive session. Under the statute, the presiding officer simply can give notice orally during the course of the meeting.
There is no requirement for particular public agenda items to be included in the presiding officer's request to go into executive session. However, since the request must specify the justification for a closed session, it necessarily must give some description of the items to be discussed. There is no other information required in the request for an executive session.
The Open Meetings Act does not provide any penalties for failing to follow the rules set out for going into executive session. The Act does provide that the public agency cannot make any decision in executive session; therefore, any decision reached in such a closed meeting would be voidable.
The notice and agenda requirements for a closed meeting are the same as those for an open meeting. See E.1.b., above. However, “[n]o governmental body may commence a meeting, subsequently convene in closed session and thereafter reconvene again in open session within 12 hours after completion of the closed session, unless public notice of such subsequent open session was given at the same time and in the same manner as the public notice of the meeting convened prior to the closed session.” Wis. Stat. § 19.85(2).
There are no specific notice requirements for executive sessions. The governing body may provide for holding executive sessions by ordinance or resolution if no statutory provision controls. The ordinance or regulation will establish procedures for executive sessions. The governing body must vote to go into executive session.
There is no time limit in the Public Meetings Law. Specific statutes relating to the governing body, or in the governing body's ordinances or resolutions may provide time limits. See e.g., Rudolph, supra, at 101.
The Act does not specify to whom notice must be given.
As noted, there is no posting requirement for regular meetings, unless provided in specific statutes relating to the governing body or the governing body's ordinances or resolutions.
There is no explicit agenda requirement. See, e.g., Wyo Stat. § 16-4-406(c) (1977, Rev. 1995).
The Public Meetings Law imposes no additional requirements for executive sessions. Refer to specific statutes relating to the governing body or the governing body's ordinances or resolutions. Knowingly and willfully violating the Act by holding an illegal executive session is punishable as a misdemeanor. An illegal executive session may render any action by the governing body "null and void."