The Alabama Open Meetings Act requires that, unless otherwise specified by law, a governmental body subject to the Act must provide seven days’ notice prior to a meeting except under certain circumstances. Ala. Code § 26-25A-3.
Some statutes require specific time and manner of notice for particular meetings. See, e.g., Ala. Code § 11-44-136 (1994) (seven days' notice by publication in a newspaper is required before a commission may enact a resolution or ordinance granting a franchise, appropriating money, providing for public improvements, or enacting any regulation regarding public comfort, safety or health or of any other general and permanent nature, except in case of an emergency regarding public safety or health).
The Alabama Open Meetings Act does not specify where notice is to be posted by the respective houses of the Alabama Legislature but requires the houses to "develop rules consistent with the Constitution of Alabama of 1901, providing for . . . prior notice" of meetings. Ala. Code § 36-25A-3(a)(1).
Any governmental body with statewide jurisdiction is required to submit notice of its meeting to the Secretary of State. The Secretary of State is then required to post the notice on the Internet and send e-mail notification to those who have registered with the Secretary of State to receive notification of meetings. Ala. Code § 36-25A-3(a)(2); Op. Att’y Gen. Ala., 2007-086 (University of North Alabama does not exercise statewide jurisdiction and thus is not required to provide notice of meetings via Secretary of State).
A municipal governmental body is required to post notice of each meeting on a bulletin board at a place convenient to the public in city hall. A corporation a majority of whose governing board is appointed or elected by a municipality may, in lieu of posting notice in city hall, post notice on a bulletin board at a place convenient to the public in the principal office of the corporation or other instrumentality. Ala. Code § 36-25A-3(a)(3).
Local school boards are required to post notice of each meeting on a bulletin board at a place convenient to the public in the central administrative office of the board. Ala. Code § 36-25A-3(a)(4).
Any other governmental body is required to post notice of each meeting in a "reasonable location" or use a "reasonable method of notice that is convenient to the public." Any change of the location or method for posting notices of meetings shall not take effect until the change has been approved at an open meeting by the members of the governmental body and announced to the public at an open meeting. Ala. Code § 36-25A-3(a)(5).
If practicable, governmental bodies must provide direct notification to any member of the public who has registered with the governmental body to receive notification of meetings. Notice may be transmitted by e-mail, telephone, facsimile, U.S. Mail, or any other method reasonably likely to provide the requested notice. Ala. Code § 36-25A-3(a)(6).
If the governmental body has created a preliminary agenda, the Alabama Open Meetings Act requires that it be posted as soon as practicable in the same location or manner as the notice of the meeting. Citizens For Better Schs. 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). A governmental body may discuss matters not included in the preliminary agenda Ala. Code § 36-25A-3(c); Underwood v. Ala. State Univ., 51 So. 3d 1010 (Ala. 2010). If a preliminary agenda has not been created, the notice must include a general description of the nature and purpose of the meeting.
Notices posted pursuant to the Alabama Open Meetings Act must include the time, date and place of the meeting. Ala. Code § 36-25A-3(c); see also Op. Att'y Gen. Ala., No. 2006-027, 2005 Ala. AG LEXIS 196 (Nov. 15, 2005).
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. Such an action may be brought for failure of the governmental body to follow the notice requirements of the Act. 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. Ala. Code § 36-25A-9(e)-(g); Citizens For Better Schs. v. Greene, CV 2007-932 (Jefferson Cty. Cir. Ct. 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).
The civil penalty may be imposed against individual members of the governmental body who voted to go into an unauthorized executive session. Ala. Code § 36-25A-9(g).
The OMA simply requires "reasonable notice" for all meetings. AS 44.62.310(e). What is reasonable will vary depending on the type of meeting and circumstances. A 1981 Attorney General's opinion provides some further guidance on this. (See May 11, 1981, Attorney General Opinion, supra, at 6-7.
What is reasonable depends upon the situation in which the public body must meet to hear, consider, deliberate and take — or not take — action, and the effect of its doing so on the public and on any individual. The greater the exigency of the former, the less notice will probably be necessary. The greater the latter, the more notice will probably be required.
Regularly scheduled meetings need no further notice, if the time and place are known to the public, but special meetings always require special notice, unless an emergency makes notice impractical or impossible.
Public bodies must plan ahead and their failure to do so will not justify their holding a meeting without adequate, effective public notice. Absent exigent circumstances, three days notice appears to be the minimum allowable to be reasonable public notice and the three days cannot include Saturday, Sunday or holidays.
Id. Similarly, another Attorney General opinion stated that the notice requirement of the OMA required that the Museum Collections Advisory Committee publish a schedule of its fixed monthly meetings twice yearly, stating the date, time and place of the meetings. For unscheduled meetings, the public could be notified by public service announcements on the radio, as long as there is confidence that the announcements will in fact be made; but regardless of the media used, at least three days notice should be given. See December 30, 1992, Attorney General Opinion.
In addition to this general interpretation of the statutory notice requirements under the OMA, there may be other statutes, regulations, or local ordinances that require more specific public notice for particular agencies. See, for example, the statute referencing applicability of the Open Meetings Act to the University of Alaska Board of Regents says the Board of Regents may determine the time and place of its meetings, but that 30 days notice is required for all regular meetings and 10 days notice is required for special meetings of the Board of Regents, its committees or subcommittees called under the bylaws or rules or procedure of the Board of Regents. Emergency meetings may be called without notice. AS 14.40.160(b). And, members of the Alaska Bar and the public must be given 30 days' notice of meetings of the Alaska Bar Association Board of Governors, except for emergency meetings, and meetings of the board must take place in the state. AS 08.08.075. See also, AMC 2.30.035(L) requiring publication of the agenda for the regular Anchorage Assembly meeting in a newspaper of general circulation not less than 36 hours before the meeting. Note that Alaska law affords the public not only a right to attend meetings of municipal bodies, but also a reasonable right to be heard at all regular and special meetings. AS 29.20.020(a). This right is afforded in the Municipal Code, and is not part of the OMA, so that no such right exists generally with respect to all governmental bodies or public entities in the state other than those covered by the Municipal Code. However, the municipal code otherwise tracks the open meetings act by incorporating its exceptions and exemptions, so this right to be heard at municipal meetings does not extend a right to participate, or even be present, to the subject of an adjudication in the portion of an adjudicatory meeting closed pursuant to AS 44.62.319(d)(6) or its analogues. Griswold v. City of Homer, 55 P.3d 64, 73 (Alaska 2002).
The Supreme Court addressed the issue of what constitutes "reasonable public notice" in Hickel v. Southeast Conference, and upheld superior court factual findings and legal conclusions that the Reapportionment Board had violated the OMA by providing inadequate notice for a number of its meetings. The superior court found that the Board violated its own guidelines as to reasonable notice. Although the executive director had adopted a policy of five days notice for meetings, the Board provided less notice for a number of them, including three days notice for some and four days notice for others. The superior court also found that the Reapportionment Board had failed to advertise in rural newspapers on several occasions, providing either no notice or insufficient notice in these papers. Finally, the superior court found that in several instances the Board had provided information about meetings that was "varied and confusing," as to time and also as to whether a meeting or hearing would take place. 868 P.2d at 919, n.13-15. The superior court also found that the manner of notification discouraged citizen participation. Based on these findings, the Supreme Court held that the Reapportionment Board violated the OMA by failing to provide reasonable notice regarding the Board's meetings throughout the state.
Notice of all meetings must be given to the public, and in terms of timing, it is the receipt of notice that counts. Mailing notices to the media three days before a meeting will not suffice, May 11, 1981 Attorney General Opinion, supra, at 6, and where a public service announcement on the radio is used, there must be confidence that the announcement will in fact be made. In addition to the general public notice, the law requires specific notice to any individual a governmental body proposes to discuss in executive session for the reason that a public discussion could harm that person's reputation or character. In such cases, giving only general public notice, or even giving the individual only notice of the time and place of the upcoming meeting, are inadequate. The governmental body has an obligation under the OMA to inform the affected individual of the meeting at which the discussion about him or her will take place, and to inform the person of the right to request that the meeting be open to the public. University of Alaska v. Geistauts, 666 P.2d 424, 429 (Alaska 1983). See also, Revelle v. Marston, 898 P.2d 917 (Alaska 1995). Actual notice cures any defect in formal notice under the OMA. Ramsey v. City of Sand Point, 936 P.2d 126, 135 (Alaska 1997).
The OMA provides that subject to posting notice of a meeting on the Alaska Online Public Notice System as required by AS 44.62.175(a), notice of a meeting may be given using print or broadcast media. Notice of meetings must be posted at the principal office of the public entity or, if the public entity has no principal office, at a place designated by the governmental body. The governmental body shall provide notice in a consistent fashion for all its meetings." AS 44.62.310(e).
The Open Meetings Act does not contain any requirement for publication of an agenda or other subject matter notice of items to be discussed at meetings. For years, the wording of the OMA did not make clear whether it requires either general or specific notice of the subjects to be discussed at meetings. The Supreme Court has been presented with the question once, but avoided answering it. Malone v. Meekins, 650 P.2d 351, 358-359 (Alaska 1982) (court found it unnecessary to decide this question, given that circumstances of case before it involving reorganization of the state legislature, which the court found did not require notice at all because of an OMA exception for meetings held to organize a body).
In 1985, the notice provision of the OMA was amended to add: "The notice must include the date, time and place of the meeting, and if the meeting is by teleconference the location of any teleconferencing facilities that will be used." AS 44.62.310(e). This additional language would lend support to an argument that subject matter notice is not required by the language specifying "reasonable public notice." Note that there may be other applicable legal requirements, in the Municipal Code and local ordinances, which do specifically require some form of subject matter notice to certain governmental bodies. See, e.g., AMC 2.30.030(L) (requiring advance publication of agenda for Anchorage Assembly meetings). Section 17.05 of the Anchorage Municipal Charter, a provision identical to § 1.25.010 of the Anchorage Municipal Code, requires municipal agencies to give reasonable advance notice of the subject of each meeting. Tunley v. Municipality of Anchorage, 631 P.2d 67, 81 n.5 (Alaska 1981); Anchorage Independent Longshore Union Local 1 v. Municipality of Anchorage, 672 P.2d 894, 895 (Alaska 1983). In Longshore Union, the Municipality argued that sufficient proper notice had been given, because the matter was "simple," "pro forma," and "ministerial," and the public had notice that matters other than those on the agenda might be discussed since the agenda included a reference to "items not on the agenda." Further, it argued that any alleged deficiencies had been cured because a representative of the plaintiff had received actual notice. The Court held that whether such notice should be deemed to satisfy the requirements of Tunley, or whether any deficiency was cured, involved issues of fact for the trial court to resolve on remand. Id. Actual notice cures any defect in formal notice under the OMA. Ramsey v. City of Sand Point, 936 P.2d 126, 135 (Alaska 1997).
Action taken at or as the result of meetings held or conducted in violation of the OMA, due to failure to provide notice or for otherwise, is voidable. AS 44.62.310(f). In 1994 amendments, the legislature codified and expanded upon judicial decisions discussing the circumstances that would lead to voiding of action taken as the result of OMA violations. At the same time, the legislature limited the right to bring suit to void an action taken in violation of the OMA to a 180-day period after the date of the action the party seeks to void. AS 44.62.310(f). Previously, the statute had contained no statute of limitations, and the Supreme Court had ruled that the doctrine of laches did not apply to bar OMA suits based on the passage of time between the violation alleged or the action taken, and when the suit was filed to set the action aside. In addition, the legislature eliminated the right to bring suit to void an action taken in violation of the OMA based upon OMA violations by purely advisory groups. AS 44.62.310(g). Previously, the Supreme Court had specifically recognized the right to challenge an action taken when a violation had occurred at any stage of the process leading up to it, including violations by advisory groups in early stages of the fact-gathering process.
Alaska Supreme Court decisions before the OMA was revised in 1994 indicated that a public body could cure violations by having another meeting at which there is a substantial, independent, de novo reconsideration of the issues, but not just a rubber stamp confirmation of the earlier action. See Alaska Community College's Federation of Teachers Local No. 2404 v. University of Alaska (hereinafter, "ACCFT ") 677 P.2d 886 (Alaska 1984). The OMA now provides that a governmental body that violates or is alleged to have violated the OMA may cure the violation or alleged violation by holding another meeting in compliance with notice and other requirements of the OMA, and conducting a substantial and public reconsideration of the matters considered at the original meeting. The law now explicitly states what was understood before the 1994 amendments — even if a court finds that an action is void, the governmental body may discuss and act on the matter at another meeting held in compliance with the OMA.
A court may hold that an action taken at a meeting held in violation of the OMA is void only if the court finds that, considering all the circumstances, the public interest in compliance with the OMA outweighs the harm that would be caused to the public interest and the public entity by voiding the action. AS 44.62.310(f). In making the determination of whether or not to void a challenged action due to violations of the OMA, the legislature has directed the court to consider at least nine factors now specified in the act (largely codifying principles articulated in Supreme Court decisions to that time) as well as any others the court finds relevant. These factors are: (1) the expense that may be incurred by the public entity, other governmental bodies, and individuals if the action is voided; (2) the disruption that may be caused to the affairs of the public entity, other governmental bodies, and individuals if the action is voided; (3) the degree to which the public entity, other governmental bodies, and individuals may be exposed to additional litigation if the action is voided; (4) the extent to which the governing body, in meetings held in compliance with (the OMA), has previously considered the subject; (5) the amount of time that has passed since the action was taken; (6) the degree to which the public entity, other governmental bodies, or individuals have come to rely on the action; (7) whether and to what extent the governmental body has, before or after the lawsuit was filed to void the action, engaged in or attempted to engage in the public reconsideration of matters originally considered in violation of (the OMA); (8) the degree to which violations of (the OMA) were willful, flagrant or obvious; and (9) the degree to which the governing body failed to adhere to the policy stated in AS 44.62.312(a). See, e.g., In re: 2001 Redistricting Cases, 44 P.3d 141, 147 (Alaska 2002) (no remedy for assumed OMA violation resulting from e-mail exchanges of Board members, given stronger public interest in upholding than voiding redistricting plan).
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).
“A public body that intends to meet for a specified calendar period, on a regular day, date or event during the calendar period, and at a regular place and time, may post public notice of the meetings at the beginning of the period.” A.R.S. § 38-431.02(F).
Notice must be given to members of the public body and the general public. A.R.S. § 38-431.02(C).
Notice for most public bodies must be provided as follows:
(a) Conspicuously post a statement on their website stating where all public notices of their meetings will be posted, including the physical and electronic locations, and shall give additional public notice as is reasonable and practicable as to all meetings.
(b) Post all public meeting notices on their website and give additional public notice as is reasonable and practicable to all meetings. A technological problem or failure that either prevents the posting of public notices on a website or that temporarily or permanently prevents the use of all or part of the website does not preclude the holding of the meeting for which the notice was posted if the public body complies with all other public notice requirements required by this section.
Notice “shall include an agenda of the matters to be discussed or decided at the meeting or information on how the public may obtain a copy of such an agenda.” A.R.S. § 38-431.02(G).
Agendas “shall list the specific matters to be discussed, considered or decided at the meeting.” A.R.S. § 38-431.02(H). They must be available at least 24 hours before the meeting except in the case of an actual emergency. A.R.S. § 38-431.02(G).
Public bodies may only discuss, consider or decide those “matters listed on the agenda and other matters related thereto.” A.R.S. § 38-431.02(H). Nothing can be added to an agenda once a meeting has begun, not even by a majority vote of the public body (except in the case of an actual emergency). Ariz. Att’y Gen. Op. No. I79-192.
In cases of actual emergencies, however, matters not listed on the agenda can be discussed, considered, and decided at the public meeting. A.R.S. § 38-431.02(J). Moreover, the presiding officer or a member of the public body may summarize current events without listing the specific matters on the agenda, provided the summary is listed and the public body does not discuss or take legal action on any matter not properly noticed. A.R.S. § 38-431.02(H). In addition, public bodies also may make open calls to the public to discuss matters that fall within their jurisdiction. A.R.S. § 38-431.01(H).
Other than challenges to the validity of executive sessions, “the burden of proving a violation of the open meeting law generally is on the party asserting the violation.” City of Prescott v. Town of Chino Valley, 166 Ariz. 480, 486 n.4, 803 P.2d 891, 897 n.4 (1990).
Arizona law provides for penalties for failure to comply with Notice and Agenda Requirements.
“All legal action transacted by any public body during a meeting held in violation of any provision of [the OML] is null and void” unless properly ratified by the public body. A.R.S. § 38-431.05(A) (emphasis added); see Cooper v. Ariz. W. Coll. Dist. Governing Bd., 125 Ariz. 463, 610 P.2d 465 (Ct. App. 1980); Ariz. Att’y Gen. Op. No. I79-045. But see Ariz. Att’y Gen Op. No. I80-001 (determining that “a violation of the OML during the meeting with respect to a single agenda item does not render all legal action taken with respect to other agenda items null and void”).
A technical violation or a “minor deviation,” however, will not nullify all business undertaken at a meeting when there is no demonstrated prejudicial effect on the complaining party and the meeting complies with the intent of OML. Karol v. Bd. of Educ. Trustees., Florence Unified Sch. Dist. No. One., 122 Ariz. 95, 98, 593 P.2d 649, 652 (1979); see Ahnert v. Sunnyside Unified Sch. Dist. No. 12, 126 Ariz. 473, 475, 616 P.2d 933, 935 (Ct. App. 1980). In addition, a matter that was inappropriately decided at an executive session may be corrected by a formal vote at a public meeting that complies with the OML. See Valencia v. Cota, 126 Ariz. 555, 557, 617 P.2d 63, 65 (Ct. App. 1980).
For any violation of the OML, the court may (1) award attorneys’ fees and costs in favor of plaintiff and against the public body, (2) impose up to $500 in civil penalties against the person violating or knowingly aiding, agreeing to aid, or attempting to aid in the violation of the OML, and (3) remove the offending public officer from office and assess the officer and/or any person who knowingly aids, agrees to aid, or attempts to aid the officer with all costs and attorneys’ fees awarded to the plaintiff. A.R.S. § 38-431.07(A).
- Ratification of actions done in violation of open meetings law:
Legal actions violating OML are usually null and void. A.R.S. § 38-431.05(A); see, e.g., Thurston v. City of Phoenix, 157 Ariz. 343, 345, 757 P.2d 619, 621 (Ct. App. 1988) (voiding otherwise lawful action taken by the city because the action was not on the meeting’s agenda).
A public body, however, may ratify any legal action taken in violation of the OML by complying with the following requirements:
- Ratification shall take place at a public meeting within thirty days after discovery of the violation or after such discovery should have been made by the exercise of reasonable diligence.
- The notice for the meeting shall include a description of the action to be ratified, a clear statement that the public body proposes to ratify a prior action and information on how the public may obtain a detailed written description of the action to be ratified.
- The public body shall make available to the public a detailed written description of the action to be ratified and all deliberations, consultations and decisions by members of the public body that preceded and related to such action. The written description shall also be included as part of the minutes of the meeting at which ratification is taken.
- The public body shall make available to the public the notice and detailed written description required by this section at least seventy-two hours in advance of the public meeting at which the ratification is taken.
A.R.S. § 38-431.05(B). A judicial determination that the public body took legal action in violation of the OML triggers the 30-day period for ratification. See Tanque Verde Unified Sch. Dist. No. 13 of Pima Cty. v. Bernini, 206 Ariz. 200, 208-10, 76 P.3d 874, 882-84 (Ct. App. 2003).
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). The FOIA does not specify the form that the notice must take. Whether a particular form (e.g., e-mail, fax, voice-mail) satisfies the act must be determined on a case-by case basis. Ark. Op. Att’y Gen. No. 96-074.
Notice 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 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). 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. 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. Nos. 2001-012, 98-033. However, other statutes, ordinances, or regulations may impose such a requirement upon particular governing bodies.
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. Ark. Op. Att’y Gen. No. 2005-167; Ark. Op. Att’y Gen. (Oct. 4, 1971). 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. Nos. 96-317, 95-308, 92-162. If the location of the meeting has changed since notice was given, a second notice containing the correct information is required. Ark. Op. Att’y Gen. No. 97-327.
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: At least 10 days before the regular meeting, the state body shall provide notice of its meeting to anyone who requests it in writing, and shall also give notice on the Internet. Cal. Gov't Code § 11125(a). The notice shall include the name, address and phone number of any person who can provide further information prior to the meeting, but need not include a list of witnesses who will appear at the meeting. Id. The written notice shall also contain the Internet site address where notice is available. Id.
The notice of a meeting shall include a specific agenda for the meeting, which shall include a brief description of any items of business to be transacted or discussed in either open or closed session. 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 the closed session is being held. Id. The notice must include a brief, general description which need not exceed 20 words, and no item can be added to the agenda after this notice is given. Id. Notice of a state body complying with the above requirements shall also constitute notice of an advisory body meeting of that state body, if the business to be discussed is covered by the notice, and the time and place of the advisory meeting is disclosed during the state body's open meeting. Cal. Gov't Code § 11125(c). The advisory meeting must be conducted within a reasonable time of and nearby to the state body's meeting. Id.
The descriptions of the items of business must not be vague and must inform the reader of the subject matter. See 67 Ops. Cal. Att'y Gen. 84 (1984). No action may be taken on any item not listed in the agenda unless: (1) upon a determination by a majority vote of the state body that an emergency situation exists, or (2) a 2/3 vote of the state body that there is a need for immediate action and that need came to the attention of the state body after the agenda was posted. Cal. Gov't Code § 11125.3(a). If less than 2/3 of the members are present, then a unanimous vote of those members present will suffice. Cal. Gov't Code § 11125.3(a)(2). Notice of the additional item shall be provided to each member of the state body and all persons who have requested notice as soon as is practicable after the determination of immediacy is made, but must be delivered in a manner so that it is received by newspapers and radio or television stations at least 48 hours before the meeting. Cal. Gov't Code § 11125.3(b).
A person may request and be provided with notice to all meetings of a state body or to a specific meeting or meetings. Cal. Gov't Code § 11125(d). At the state body's discretion, a person may request and be provided with notice to only those meetings at which a particular subject or subjects will be discussed. Id.
Brown Act: The legislative body of a local agency must post an agenda and mail a copy of the agenda or the agenda packet to anyone who has requested it at least 72 hours before a regular meeting or upon distribution to all, or a majority of all, of the members of a legislative body, whichever occurs first. Cal. Gov't Code §§ 54954.1, 54954.2(a)(1). The legislative body of the local agency shall post the agenda in a location that is freely accessible to members of the public. Cal. Gov't Code § 54954.2(a)(1).
The agenda must contain a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session, as well as the time and location of the regular meeting. Id. A brief general description of an item generally need not exceed 20 words. Id.
Every agenda for a regular meeting must provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body's consideration of the item. Cal. Gov't Code § 54954.3(a). However, no public input is necessary on any item that has already been considered by a committee composed exclusively of the members of the legislative body, at a public meeting wherein the public was already provided an opportunity to be heard. Id.
Notice is not required to reach the person requesting it before the meeting takes place. Cal. Gov't Code § 54954.1. The descriptions of the items of business must not be vague and must inform the reader of the subject matter. See 67 Ops. Cal. Att'y Gen. 84 (1984). No action may be taken on any item not listed in the agenda unless: (1) upon determination by a majority vote that an emergency situation exists, (2) a 2/3 vote of the legislative body that there is a need for immediate action (if less than 2/3 of the members are present, then a unanimous vote of those members present will suffice) and that need came to the attention of the local agency after posting the agenda, or (3) the item was posted for a prior meeting of the legislative body occurring not more than 5 calendar days prior to the date action is taken on the item and at the prior meeting, the item was continued to the meeting at which action is being taken. Cal. Gov't Code § 54954.2(b).
Any person may request a copy of the agenda or agenda packet of any meeting of a legislative body to be mailed to that person. Cal. Gov't Code § 54954.1. A request for a mailed copy of the agenda or agenda packet is valid during the calendar year in which it is filed, and must be renewed following January 1st of each year. Id. The legislative body may charge a fee for mailing the agenda or agenda packet, but the fee cannot exceed the actual cost of the service. 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); Cal. Gov't Code § 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 the specified 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 University of California 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 County 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 Center v. County 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); North Pacific LLC v. California Coastal Commission, 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. California Coastal Commission, 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).
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).
In determining whether the notice at issue is "full," courts apply an objective standard, meaning that a notice should be interpreted in light of the knowledge of an ordinary member of the community to whom it is directed. Town of Marble v. Darien, 181 P.3d 1148, 1152 (Colo. 2008). A notice need not precisely set forth every single item to be considered at a meeting and is sufficient as long as the items actually considered at the meeting are reasonably related to the subject matter indicated by the notice. Id. at 1153.
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).
(a) Not later than January 31 of each year, the chairman or secretary of each public agency of the state must file with the secretary of the state the schedule of the regular meetings of the public agency for the ensuing year. Conn. Gen. Stat. §1-225(b). This does not apply to the general assembly, either house thereof, or any committee thereof. Instead, the general assembly, at the commencement of each regular session in the odd-numbered years, must adopt rules to provide notice to the public of its regular, special, emergency, or interim committee meetings. Conn. Gen. Stat. §1-225(b).
(b) Not later than January 31 of each year, the chairman or secretary of each public agency of a political subdivision of the state must file with the clerk of the subdivision (i.e., the town clerk) the schedule of the regular meetings of the public agency for the ensuing year. Conn. Gen. Stat. §1-225(b). No regular meeting of such an agency can be held sooner than thirty days after the schedule has been filed; therefore, the schedule should be filed at least thirty days before the first regular February meeting is scheduled to be held. Conn. Gen. Stat. §1-225(b).
(c) Not later than January 31 of each year, the chief executive officer of any multitown district or agency must file with the clerk of each municipal member the schedule of the regular meetings of the agency for the ensuing year. Conn. Gen. Stat. §1-225(b). No regular meeting of such an agency can be held sooner than thirty days after the schedule has been filed; therefore, the schedule should be filed at least thirty days before the first regular February meeting is scheduled to be held. Conn. Gen. Stat. §1-225(b).
Conn. Gen. Stat. §1-227 states that the public agency, where practicable, shall give notice by mail of its regular meetings at least one week in advance to any person who has filed a written request for such notice.
 This does not apply to the general assembly, either house thereof, or any committee thereof.
 A request for notice filed pursuant to this section is valid for one year.
 Renewal requests for notice must be filed by January 31 of each year.
 The public agency can establish a reasonable charge for sending out these notices.
In determining the time within which to give notice or to file an agenda, Saturdays, Sundays, legal holidays, and days on which the office of the agency is closed are excluded. Conn. Gen. Stat. §1-225(g). The agenda of the regular meetings of every public agency, except the general assembly, must be available to the public and must be filed at least 24 hours before the meeting either in the agency's regular office or place of business, or if it has none, in the office of the secretary of the state (for state agencies), in the office of the clerk (for agencies of a political subdivision of the state), or in the office of the clerk of each municipal member (for multitown agencies). Conn. Gen. Stat. §1-225(c).
If two-thirds of the members of the agency present and voting at the regular meeting vote in the affirmative, the agency may consider and act upon any subsequent business that was not included in the filed agendas. Conn. Gen. Stat. §1-225(c). In Zoning Bd. of Appeals, Town of Plainfield v. FOIC, 784 A.2d 383, 385, 66 Conn. App. 279, 281 (2001), the court held that an agency must hold a vote to determine whether an item should be added to the agenda before voting on the item itself; the requirement of a two-thirds vote for consideration of a matter not included on the agenda is not satisfied by a two-thirds vote on the proposal itself.
Location — The public agency must provide by regulation or ordinance or resolution for the place of its regular meeting. Conn. Gen. Stat. §1-230.
If the notice and agenda requirements are not properly complied with, the FOIC can void any action taken at the improperly noticed meeting. Conn. Gen. Stat. §1-206(c).
Notice of a meeting must be given at least seven days in advance. 29 Del. C. § 10004(e)(2); Ianni v. Dep't of Elections, 1986 WL 9610 (Del. Ch. Aug. 29, 1986) (six days' advance notice was insufficient). See Del. Op. Att'y Gen., No. 01-ib10 (June 12, 2001) (holding that although violations occurred, remediation was not required because interested citizens were well represented by their elected representatives from city, state and federal government).
Notice must be given to the public. 29 Del. C. § 10004(e)(2), (3). Thus, notice in the form of a memorandum given to members of a committee but not the public at large has been held insufficient. Del. Op. Att'y Gen., No. 00-ib07 (Apr. 28, 2000).
Notice must be conspicuous. A conspicuous posting can be at the principal office of the public body holding the meeting or, if no such office exists, at the place where meetings of the public body are regularly held. A reasonable number of copies of such notice must be made available. 29 Del. C. § 10004(e)(4); Ianni v. Dep't of Elections, 1986 WL 9610 (Del. Ch. Aug. 29, 1986) (posting of a single notice insufficient; other copies must be made available).
An agenda is required; however, FOIA contemplates that it is subject to change to include additional items such as executive session or the deletion of items. 29 Del. C. § 10004(e)(2); but see Del. Op. Att'y Gen., No. 99-ib11 (June 25, 1999) (agenda change should have been noticed because City Council knew of need to address issue at least 12 days in advance of meeting). An agenda should be worded in plain and comprehensive language and must directly state the purpose of the meeting. Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994). If the agenda is available at the time of the initial posting, it should be added to the notice at least six hours in advance of the meeting, and the reasons for the delay in posting should briefly set forth in the agenda. 29 Del. C. § 10004(e)(5). A general description in the agenda should be sufficient to draw attention to the significance of the subject to be discussed. Ianni v. Dep't of Elections, 1986 WL 9610 (Del. Ch. Aug. 29, 1986); Del. Op. Att'y Gen., No. 05-ib30 (Oct. 24, 2005).
FOIA permits changes in the agenda "to include additional items . . . which arise at the time of the public body's meeting." 29 Del. C. § 10004(e)(2). "If a public body knows that an item of public interest will be addressed at a meeting, then it cannot claim, in good faith, that the issue arose at the time of the public body's meeting in order to circumvent the notice requirement of FOIA." Del. Op. Att'y Gen., No. 97-ib20 (Oct. 20, 1997); Del Op. Att'y Gen., No. 00-ib07 (Apr. 28, 2000).
A notice must include the times, dates and places of such meetings. See 29 Del. C. § 10004(e)(2); Ianni v. Dep't of Elections, 1986 WL 9610 (Del. Ch. Aug. 29, 1986).
Any action taken at the meeting not adequately notified is voidable. 29 Del. C. § 10005(a); Ianni v. Dep't of Elections, 1986 WL 9610 (Del. Ch. Aug. 29, 1986) (Court of Chancery reluctant to enter injunction where important public interests involved).
District of Columbia
Notice must be provided "when meetings are scheduled and when the schedule is changed." The Act requires public bodies to establish and continually update an annual schedule of its meetings so as to provide maximum possible notice. D.C. Code Ann. § 2-576(1).
The Open Meetings Act requires a public body to provide notice "as early as possible, but not less than 48 hours or 2 business days, whichever is greater, before a meeting." D.C. Code Ann. § 2-576(1).
Notice shall be posted 1) in the office of the public body or a location that is readily accessible to the public, and 2) on the website of the public body or the District government. D.C. Code Ann. § 2-576(2). Notice also must be published in the District of Columbia register "as timely as practicable." Id. § 2-576(3).
Each meeting notice must include the date, time, location, and planned agenda to be covered in the meeting. D.C. Code Ann. § 2-576(5).
If the meeting or any portion of the meeting is to be closed, the notice also must, if feasible, provide a notice of intent to close the meeting and citations to the reason for closure under § 2-575(b). D.C. Code Ann. § 2-576(5).
Section 2-579 of the Open Meetings Act specifies several remedies and penalties for failure to give adequate notice:
1) If the court finds that a resolution, rule, act, regulation, or other official action was taken, made, or enacted in violation of the Act, the court may order an appropriate remedy, including requiring additional forms of notice, postponing a meeting, or declaring action taken at a meeting to be void. Actions shall not be declared void unless the court finds that the balance of equities compels the action or the court concludes that the violation was not harmless.
2) If the court finds that a public body plans to hold a closed meeting or portion of a meeting in violation of the Act, the court may a) enjoin the public body from closing the meeting or portion of the meeting; b) order that future meetings of the same kind be open to the public; or c) order that the record of a meeting be made public.
3) If the 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, the court may impose a civil fine of not more than $ 250 for each violation.
4) The Act also authorizes courts to grant “such additional relief as it finds necessary”
The Sunshine Law requires that boards subject to the law provide “reasonable notice” of all meetings. See Fla. Stat. § 286.011(1) (1995).
Although prior to 1995, section 286.011 did not specifically require a public board to give public notice of a governmental meeting, the courts have long interpreted the statute to mandate reasonable notice as a practical matter. Hough v. Stembridge, 278 So. 2d 288 (Fla. 3d DCA 1973). Furthermore, Florida’s Constitution requires that public meetings be “noticed to the public.” Art. 1, sec. 24(b). The time frame for giving notice is a “reasonable” time standard. See Op. Att’y Gen. Fla. 73-170 (1973) (reasonable public notice is variable, but must always afford a reasonable time for interested persons to appear); Op. Att’y Gen. Fla. 72-400 (1972) (directing regulatory boards of the Department of Professional and Occupational Regulation to give reasonable and ample notice to public and press of all meetings); Op. Att’y Gen. Fla. 80-78 (1980) (reasonable notice mandatory despite lack of specific statutory requirements). Accord Yarbrough v. Young, 462 So. 2d 515, 517 (Fla. 1st DCA 1985). See Rhea v. City of Gainesville, 574 So. 2d 221 (Fla. 1st DCA 1991) (complaint alleging notice given to media no later than 1:35 P.M. of special meeting at 3:00 P.M. was not sufficient notice stated a sufficient cause of action that Sunshine Law had been violated).
The Florida Attorney General suggests the use of press releases and/or phone calls to the wire services and other media as a highly effective means of notice. On matters of critical public concern such as rezoning, budgeting, taxation, and appointment of public offices, advertising in local newspapers of general circulation is appropriate. Any board or commission subject to Chapter 120, the Administrative Procedure Act, must consider the Act in conjunction with section 286.011 whenever a notice question arises. See Fla. Parole & Probation Comm’n v. Baranks, 407 So. 2d 1086 (Fla. 1st DCA 1982) (notice of meeting published in the Fla. Admin. Weekly is sufficient public notice under section 298.011); Op. Att’y Gen., 99-53 (1999) (meetings of a homeowners’ association architectural review committee to review and approve applications for county building permits must be noticed and open to the public at large and not merely to association members).
Proper posting of notice will depend on the facts and circumstances of each case. In each circumstance, the agency must give notice at such time and in such a manner as to enable the general public (and the media) to attend the meeting. See Ops. Att’y Gen. Fla. 04-44 (2004), 80-78 (1980), and 73-170 (1973); see also Rhea v. City of Gainesville, 574 So. 2d 221, 222 (Fla. 1st DCA 1991). In some cases, the posting of the notice in a designated area may be sufficient. In other cases, newspaper publication may be necessary.
Notice should contain an agenda; however, if no agenda is available, subject summations might be used. A specific requirement that each item discussed by a public agency be noticed by a published prior agenda was rejected in Hough v. Stembridge, because it would effectively preclude access to meetings by members of the general public who wish to address specific issues. See also, Law & Information Services v. City of Rivera Beach, 670 So. 2d 1014 (Fla. 4th DCA 1996) (to impose a requirement restricting every relevant commission or board from considering matters not on an agenda is a policy decision to be made by the Legislature); Yarbrough v. Young, 462 So. 2d 515 (posted agenda unnecessary; public body not required to postpone meetings due to inaccurate press release not part of official notice); Op. Att’y Gen. Fla. 75-305 (1975) (Sunshine Law does not require each item of business to be placed on agenda as a precondition to board consideration at a properly noticed meeting).
Notice should also contain the time and place of the meetings. See Law & Information Servs. Inc. v. City of Riviera Beach, (under Sunshine Law, public is entitled to notice of when and where governmental meeting is to be held, and that when held, such meetings are to be conducted openly). The only statutory informational notice requirement is advice that if the person decides to appeal a board decision, he may need to ensure that a verbatim record of the proceedings is made. Fla. Stat. § 286.0105 (1991). See Op. Att’y Gen. Fla. 81-6 (1981).
A showing that section 286.011 has been violated constitutes irreparable public injury, thus voiding, pursuant to Fla. Stat. section 286.001(1) any action taken at the meetings. See Port Everglades Auth. v. Int’l Longshoremen’s Ass’n, 652 So. 2d 1169 (Fla. 4th DCA 1995) (“[T]he principle that a Sunshine Law violation renders void a resulting official action does not depend on a finding of intent to violate the law or resulting prejudice. Once the violation is established, prejudice is presumed.”); Town of Palm Beach v. Gradison, 396 So. 2d 473 (Fla. 1974) (absence of notice of a meeting to the public or press is a potential violation of law); Op. Att’y Gen. Fla. 74-273 (1974). If a meeting held without notice is held to be a violation of the Sunshine Law, public officials who attended such a meeting may be subject to the fines or criminal penalties imposed by section 286.011 See discussion below relating to such penalties at “Fines."
The Act requires information concerning the time, place and dates of an agency’s regular meetings to be available to the general public and to post a notice containing such information at least one week in advance in a conspicuous place available to the public at the regular meeting place of the agency as well as on the agency’s website. O.C.G.A. § 50-14-1(d)(1).
The Act also requires agencies to post at the meeting site as far in advance of the meeting as reasonably possible—at some time during the two-week period immediately prior to the meeting—an agenda of all matters expected to come before the agency or committee at the meeting. O.C.G.A. § 50-14-1(e)(1).
Technical compliance with notice requirements is not enough. If notice is insufficient to reasonably apprise a concerned party then it violates due process. Diamond Waste Inc. v. Monroe Cty., 692 F. Supp. 812 (M.D. Ga. 1992). Furthermore, the notice of a meeting must not be misleading. Where a county zoning board posted the agenda for a meeting which listed "Adjourn Public Hearing" prior to "Decision & Vote," there was "clearly a violation of the Open Meetings Act." Beck v. Crisp Cty. Bd. of Appeals, 221 Ga. App. 801, 472 S.E.2d 558 (1996). Although the audience was never expressly told to leave the meeting, "the intentional, misleading acts of the county effectively excluded" the public and, therefore, all actions taken by the board were invalid. Id. at 804.
Notice must be given six calendar days in advance of a meeting. Haw. Rev. Stat. § 92-7(b). But cf. Haw. R. Civ. Proc. 6 (requiring that only business days be counted when period to respond to court pleadings is less than 10 days).
The board must file notice in the office of the lieutenant governor or the appropriate county clerk's office and in the board's office. Id. § 92-7(b).
The board must also maintain a list of names and addresses of persons who request notification and mail a copy of the notice to such persons at their last recorded address no later than the time the agenda is filed. Id. § 92-7(e).
In addition to filing, the notice is to be filed in the board's office for public inspection and posted at the site of the meeting whenever feasible. Id. § 92-7(b).
The notice is to include an agenda which lists all of the items to be considered at the forthcoming meeting and in the case of an executive meeting, the purpose of the meeting. Id. § 92-7(a).
Agenda items must be listed with particularity. A published agenda containing only general references, such as "old business" and "new business," is insufficient to comply with the law. Agenda and Minutes of Haw. State Comm'n on the Status of Women, Att'y Gen. Op. No. 85-2 (Feb. 4, 1985) (requiring list of all specific "items" or "matters"). Including a generic entry of “executive session” on all agendas without identifying the subject matter of the executive meeting also is not allowed. Amendment of Agenda; Executive Meeting Agenda, OIP Op. Ltr. No. 06-05 (July 19, 2006).
However, the board may add items to the publicly noticed agenda with a two-thirds recorded vote of all members to which the board is entitled. Haw. Rev. Stat. § 92-7(d).
The agenda may not be changed, however, to add an item "if it is of reasonably major importance and action thereon by the board will affect a significant number of persons." Id.; see Kauai County Op. No. 99-1 (Jan. 22, 1999) (opining that additions of sub-items related to a previously noticed item, in and of itself, does not rise to the level of an item of reasonably major importance possessing the inherent ability to affect a significant number of persons which would require a new meeting be rescheduled allowing for the appropriate number of days for notice); Amendment of Agenda; Executive Meeting Agenda, OIP Op. Ltr. No. 06-05 (July 19, 2006). Such items should be considered only at a meeting continued at a later reasonable day and time. Kauai County Op. No. 99-1 (Jan. 22, 1999).
The notice must also contain the date, time, and place of the meeting. Haw. Rev. Stat. § 92-7(a).
Generally, other essential information must also be included. The main concern is that the public receive sufficient notice of the meeting to make an informed decision regarding attendance and participation. For instance, when questions arose concerning the adequacy of a published agenda for a meeting of the Maui Planning Commission because the agenda failed to explain the relevant items, neglected to describe the specific nature of the council action accurately, and omitted one parcel of land involved, Maui Corporation Counsel, while agreeing that the agenda "leaves a lot to be desired," held that, in the context of the entire record, it was adequate as a notice to the public. Maui Corp. Counsel Op. (Oct. 2, 1984).
As a closely related matter, it is worth noting that controversy continues to arise over the advance release of supplemental materials made available to members of a board but not to the public as part of the public notice or agenda.
Any final action taken in violation of Sections 92-3 (open meetings) and 92-7 (notice) may be voidable upon proof of a violation. Haw. Rev. Stat. § 92-11 (1996).
Notice of a regular meeting must be given no fewer than five calendar days prior to the meeting unless specifically provided otherwise by statute. Idaho Code § 74-204(1). If a public agency holds regular meetings at intervals of at least once a month, and those meetings are scheduled in advance for the year, then a notice at least once a year which provides the schedule will suffice. Id. In addition to the notice of the meetings to be held, a 48-hour agenda notice is required in advance of every meeting. Id. Additional agenda items may be included after completion of the 48-hour notice up to and including the hour of the actual meeting, provided that there is a good faith effort to incorporate all probable topics of discussion in the 48-hour notice so the public is well informed and has the opportunity to prepare for discussion at the meeting. Idaho Code § 74-204(4). Public agencies may satisfy these requirements by posting adequate notices in a prominent place at the principal office of the agency or in the building where the meeting shall be held. Idaho Code § 74-202(1).
Notice of a special meeting shall be given at least twenty-four (24) hours in advance, and the agenda notice shall also be provided at least twenty-four (24) hours in advance unless an emergency exists. Idaho Code § 74-204(2). The notice required under this section shall include at a minimum the meeting date, time, place and name of the public agency calling for the meeting. Idaho Code § 74-204(2).
Notice of an executive session shall be given at least twenty-four (24) hours prior to the meeting, and an agenda shall also be provided at that time. Idaho Code 74-204(3). The notice shall provide the reason and specific provision of law authorizing the executive session. Id.
There are no penalties or remedies for failure to give adequate notice apart from the general penalties provided for any violation of the law, which include nullification of the action taken and civil penalties against members of a governing body who knowingly participate in a meeting that violates the law. Idaho Code § 74-208.
The Act declares that it is the public policy of the state of Illinois "that its citizens shall be given advance notice of . . . all meetings at which any business of a public body is discussed or acted upon in any way." 5 ILCS 120/1 (emphasis added).
The Act requires public notice of all meetings of a public body. See 5 ILCS 120/2.02. This includes regularly scheduled meetings, special meetings and emergency meetings. See id. To satisfy the public notice requirement, a public body must post a copy of the notice at its principal office and at the location where the meeting is to be held 48 hours in advance of the meeting. See 5 ILCS 120/2.02 (a). If the public body has a website, the agenda must also be posted until the regular meeting is concluded. Id. However, even if the public body fails to post the notice on its website, this will not invalidate any actions taken at the meeting. See 5 ILCS 120/2.02(b).
A public body generally must give public notice of reconvened or rescheduled meetings as well. See 5 ILCS 120/2.02 (a). However, the requirement of public notice of reconvened meetings does not apply if a meeting had been open to the public and either (1) it was to be reconvened within 24 hours or (2) an announcement of the time and place of the reconvened meeting was made at the original meeting and there is no change to the meeting agenda. See id.
At the beginning of each calendar or fiscal year, public bodies must prepare and make available schedules of all of their regular meetings for that calendar or fiscal year, listing times and places for the meetings. See 5 ILCS 120/2.03. Also at the beginning of each calendar or fiscal year, public bodies must give public notice of their regular meetings, stating the regular dates, times and places of those meetings. See 5 ILCS 120/2.02 (a). If a change is made in regular meeting dates, at least ten days' notice of the change must be published in a newspaper of general circulation in the area where the public body functions. See 5 ILCS 120/2.03. However, if it functions in a population of less than 500 and if no newspaper is published there, notice may be given by posting notice of the change in at least three prominent places within the governmental unit. See id. This notice must also be posted at the principal office of the public body or, if no such office exists, at the building where the meeting is to be held. This notice must also be supplied to those news media having filed an annual request for notice. See 5 ILCS 120/2.03.
Except for a meeting held in the event of a bona fide emergency, public notice of any special meeting, rescheduled regular meeting or reconvened meeting must be given at least 48 hours before the meeting. See 5 ILCS 120/2.02 (a). Notice must include the agenda for the meeting. See id. However, notice is not required of a reconvened meeting where the original meeting was open to the public and (1) it is to be reconvened within 24 hours, or (2) an announcement of the time and place of the reconvened meeting was made at the original meeting and there is no change in the agenda. See 5 ILCS 120/2.02(a).
Notice of an emergency meeting must be given to any news medium having filed an annual request for notice under 5 ILCS 120/2.02 (b). Notice must be made as soon as is practical, but in any event it must be given prior to the holding of the meeting. See 5 ILCS 120/2.02 (a). If a news organization files an annual request for notice of regular meetings with each public body, the agency is required to supply copies of the notice of its regular meetings, and of the notice of any special, emergency, rescheduled or reconvened meetings, to the requesting news medium. See 5 ILCS 120/2.02 (b).
Where a meeting is an emergency, rescheduled or reconvened meeting, notice must be given to the news media in the same manner as it is given to members of the public body. To affect this, the news medium must give the public body an address or telephone number within the territorial jurisdiction of the public body where the notice may be given. See 5 ILCS 120/2.02(b).
Notice of the calendar year of regularly scheduled meetings is given by posting a copy of the notice at the principal office of the body holding the meeting. If no such office exists, the notice must be posted at the building where the meeting is to be held. See 5 ILCS 120/2.02(b). If the public body has a website that is maintained by the full-time staff of the public body, notice of meetings must be posted on its website. See 5 ILCS 120/2.02(b). Any notice of regular meeting must remain on the website until the regular meeting is concluded. Id.
An agenda for each regular meeting must be posted at the public body's principal office and at the location where the meeting is to be held at least 48 hours before the meeting. See 5 ILCS 120/2.02(a). If the public body has a website, they must also post the agenda on the website. Id. Notice of special, rescheduled or reconvened meetings must include the agenda as well. See id. However, the requirement of a regular meeting agenda shall not preclude the consideration of items not specifically set forth in the agenda. See 5 ILCS 120/2.02(a). A public body may not act upon items not specifically set forth in the agenda, though. Rice v. Board of Trustees, 326 Ill. App. 3d 1120, 762 N.E.2d 1205, 261 Ill. Dec. 278 (4th Dist. 2002). The Act does not specify any requirements for a proper agenda. The Appellate Court of Illinois, Fourth District, has held that an agenda stating "NEW BUSINESS" failed to provide sufficient advance notice to the public that a public body would take final action on a resolution providing for an alternative benefit program for elected county officers. Rice.
The notice of the schedule for regular meetings set out at the beginning of each calendar or fiscal year must state the regular dates, times and place of such meetings. See 5 ILCS 120/2.20(a). The Act specifies no other information to be placed in a notice other than the agenda of a regular, special, rescheduled or reconvened meeting.
The State's Attorney--or any person--who believes the Act has not been complied with, may bring a civil action in the circuit court for the judicial circuit in which the alleged noncompliance has occurred, or is about to occur, or in which the affected public body has its principal office. The action must be filed prior to or within 60 days of the meeting alleged to be in violation of the Act, or if facts concerning the meeting are not discovered within that period, then within 60 days of the discovery of a violation by the State's Attorney. See 5 ILCS 120/3(a).
A court may examine in camera (by the judge privately in the judge's chambers) any portion of the minutes of the meeting at which a violation of the Act is alleged to have occurred, and may take additional evidence as it deems necessary. See 5 ILCS 120/3(b). The court is granted the power to provide "such relief as it deems appropriate." 5 ILCS 120/3(c). This includes requiring that a meeting be open to the public, granting an injunction against future violations of the Act, ordering the public body to make available to the public that portion of the minutes of the meeting that are not authorized to be kept confidential, or declaring null and void any final action taken at a closed meeting in violation of the Act.
The court may also assess against any party — except a state's attorney — reasonable attorney fees and other litigation costs if the court determines that the action is malicious or frivolous. See 5 ILCS 120/3(d).
To give effect to the Open Door Law and its purposes, members of the public must have sufficient notice that a meeting is going to take place. With respect to regular meetings, the law provides that notice “need be given only once each year, except that an additional notice shall be given where the date, time, or place of a regular meeting or meetings is changed. This subsection does not apply to executive sessions.” Ind. Code § 5-14-1.5-5(c). The legislature has mandated several specific requirements to ensure that the public is given sufficient notice. Ind. Code § 5-14-1.5-5(a), (b). But see Ripley County Bd. of Zoning Appeals v. Rumpke of Indiana Inc., 663 N.E.2d 19, 205–06 (Ind. App. 1996) (five-minute discussion among board members, without notice, before hearing, did not violate Open Door Law, where discussions were unrelated to the hearing).
For non-emergency meetings, at least 48 hours’ notice (not including Saturdays, Sundays or legal holidays) prior to the meeting is required. Ind. Code § 5-14-1.5-5(a). The time limit does not apply to reconvened meetings, so long as an announcement of the date, time and place of the reconvened meeting is made at the original meeting and recorded in the memoranda and minutes from the meeting, and there is no change in the agenda. Id. The notice must contain the date, time and place of any meeting. Ind. Code § 5-14-1.5-5(a); see Pepinsky v Monroe Cnty. Council, 461 N.E.2d 128 (Ind. 1984) (holding that the notice did not violate the Open Door Law when it failed to specify the room number in which the meeting would be held). The subject matter of the meeting need not be included in notice of a regular meeting). Id.
Notice also must be delivered 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(b)(2). 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. Id. The governing body may provide notice to the news media by any one of the following methods: mailing notice by U.S. mail with postage prepaid, transmitting notice by e-mail, or sending notice by facsimile (fax). Id A state agency must provide electronic access to the notice through the computer gateway administered by the office of technology established by Ind. Code § 4-13.1-2-1. Ind. Code § 5-14-1.5-5(b)(3).
If the governing body uses an agenda, the agenda must also be posted at the entrance to the meeting location before 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.
Any action taken at a meeting for which inadequate notice was given can be voided by filing an action in any court of competent jurisdiction. Ind. Code § 5-14-1.5-7(a). Voiding agency action is not automatic, however; courts consider a laundry list of factors, set forth in Ind. Code § 5-14-1.5-7(d), when deciding whether invalidation is an appropriate remedy. The Indiana Court of Appeals has held that whether to void any final action taken by a public agency in violation of the Open Door Law is a matter left to the trial court’s discretion. Town of Merrillville v. Blanco, 687 N.E.2d 191, 199 (Ind. App. 1997); see Warren v. Bd. of Sch. Trs. of Springs Valley Cmty. Corp., 49 N.E.3d 559, 567–68 (Ind. Ct. App. 2015) (voiding the action taken when the board meeting was held at 2:30 A.M. instead of 7:00 P.M.); 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); Turner v. Town of Speedway, 528 N.E.2d 858, 863 (Ind. App. 1988) (interview sessions conducted by police commissioners at a local restaurant, without proper notice, violated the Open Door Act; however, the subsequent final action by the commission could not be voided, as the violations predated non-retroactive amendment providing such a remedy). The violating agency may also cure the violation. See Ind. Code § 5-14-1.5-7(c); Guzik v. Town of St. John, 875 N.E.2d 258, 272 (Ind. Ct. App. 2007). Injunctive or declaratory relief also are possible remedies for violations of the Open Door Law. Ind. Code § 5-14-1.5-7(a)(1),(2).
1. Except as provided in subsection 3, a governmental body shall give notice of the time, date, and place of each meeting including a reconvened meeting of the governmental body, and the tentative agenda of the meeting, in a manner reasonably calculated to apprise the public of that information. Reasonable notice shall include advising the news media who have filed a request for notice with the governmental body and posting the notice 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 no such office exists, at the building in which the meeting is to be held.
2. a. Notice conforming with all of the requirements of subsection 1 of this section shall 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 shall be given. Each meeting shall be held at a place reasonably accessible to the public, and at a time reasonably convenient to the public, unless for good cause such a place or time is impossible or impractical. Special access to the meeting may be granted to persons with disabilities.
b. When it is necessary to hold a meeting on less than twenty-four hours' notice, or at a place that is not reasonably accessible to the public, or at a time that is not reasonably convenient to the public, the nature of the good cause justifying that departure from the normal requirements shall be stated in the minutes.
3. Subsection 1 does not apply to any of the following:
a. A meeting reconvened within four hours of the start of its recess, where an announcement of the time, date, and place of the reconvened meeting is made at the original meeting in open session and recorded in the minutes of the meeting and there is no change in the agenda.
b. A meeting held by a formally constituted subunit of a parent governmental body during a lawful meeting of the parent governmental body or during a recess in that meeting of up to four hour, or a meeting of that subunit immediately following the meeting of the parent governmental body, if the meeting of that subunit is publicly announced in open session at the parent meeting and the subject of the meeting reasonably coincides with the subjects discussed or acted upon by the parent governmental body.
4. If another section of the Code requires a manner of giving specific notice of a meeting, hearing, or an intent to take action by a governmental body, compliance with that section shall constitute compliance with the notice requirements of this section.
Iowa Code § 21.4.
Notice must include a "tentative agenda." Id. While this tentative agenda may be amended, it may not be amended within twenty-four hours of the meeting, absent good cause. 79 Op. Att'y Gen. 269, 270 (July 6, 1979). "[A] proper construction of the notice provision in section 21.4 allows discussion and action on emergency items that are first ascertained at a meeting for which proper notice was given." KCOB/KLVN v. Jasper Cty. Bd. of Supervisors, 473 N.W.2d 171, 174 (Iowa 1991). The issue, in determining the adequacy of notice, is: "whether the notice sufficiently apprised the public and gave full opportunity for public knowledge and participation." KCOB/KLVN v. Jasper Cty. Bd. of Supervisors, 473 N.W.2d 171, 173 (Iowa 1991); Barrett v. Lode, 603 N.W.2d 766 (Iowa 1999). "The adequacy of a notice is determined by what the words in the agenda would mean to a typical citizen or member of the press." Vandaele v. Board of Educ. ex rel. Wapsie Valley Cmty. Sch. Dist., No. 01-0234, 2002 WL 575666, at * 3 (Iowa Ct. App. Mar. 13, 2002).
Although the wording in the enforcement section of the statute emphasizes enforcement against illegally closed sessions, it specifically provides that a court may act when it finds “by a preponderance of the evidence that a governmental body has violated any provision of this chapter." Iowa Code § 21.6(3). However, in order for a court action to be brought, the party seeking judicial enforcement must first show that the governmental body is subject to the open meetings law and that it "has held a closed session." Iowa Code § 21.6(2). In addition, the court has held that "even though notice is an important tool utilized to accomplish openness, it is not the primary purpose of chapter 21." KCOB/KLVN v. Jasper Cty. Bd. of Supervisors, 473 N.W.2d 171, 173 (Iowa 1991).
“Notice of the date, time and place of any regular or special meeting of a public body or agency . . . shall be furnished to any person requesting such notice.” K.S.A. 75-4318(b). No other information is required. Notice “must be furnished” to the person or organization requesting it. Kan. Att’y Gen. Op. 1986-113. A single notice can suffice for regularly scheduled meetings. The agency “may” cause the request for notice to expire at the end of the fiscal year. K.S.A. 75-4318(b)(3). However, the “public body or agency must notify the person that notice will be discontinued unless the person resubmits a request to receive notice.” Id.
Notice must be given to "[a]ny person requesting" it. K.S.A. 75-4318(b). Such notice is to be delivered regardless of residency of the requester. Kan. Att’y Gen. Op. 81-137. The public agency cannot charge a fee for giving notice. Kan. Att’y Gen. Ops. 82-141 and 81-137. Notice furnished to an executive officer of an employee's organization or trade association is deemed notice to the entire membership, K.S.A. 75-4318(b)(2). Publication of notice in Kansas Register is adequate notice to those persons subscribing to that publication. Kan. Att’y Gen. Op. 1982-141. An appropriate notice under the circumstances regarding legislative conference committee meeting must be given to any person requesting a notice. Kan. Att’y Gen. Op. 1993-113.
The “form of a request for notice and the notice provided can be either oral or written, whatever is reasonable under the circumstances, and that there is no time limit for providing the notice required by the KOMA.” Kan. Att’y Gen. Op. 1996-14 (citing opinions 86-133, 83-173, 81-22 and 81-15). “KOMA requires that actual notice be provided to requestors of such notice. Actual notice has been defined as ‘notice expressly given and actually given, and brought home to the party directly.’ Black's Law Dictionary 957 (5th ed. 1979).” Id.
The Act does not require an agenda be prepared, but if one is prepared, it must be available to those requesting. K.S.A. 75-4318(d); Stevens v. City of Hutchinson, 11 Kan. App. 2d 290, 726 P.2d 279 (1986); Kan. Att’y Gen. Op. 1978-281; Kan. Att’y Gen. Op. 1977-337. Notice requirements are met by making agendas available at city building during business hours and by mailing copies to those requesting them. Kan. Att’y Gen. Op. 1979-218. Does not have to be mailed if available at public place. Kan. Att’y Gen. Op. 1986-113. An agenda may be amended during a meeting unless there is a statute or rule prohibiting amendment. Unified Sch. Dist. No. 407 v. Fisk, 232 Kan. 820 (1983).
Intentional violation of notice requirements subjects the violator to a possible civil penalty of not more than $500. K.S.A. 75-4320(a) (“Any member of a public body or agency subject to the open meetings act who . . . intentionally fails to furnish information as required by K.S.A. 75-4318(b), and amendments thereto, shall be liable for the payment of a civil penalty in an action brought by the attorney general or county or district attorney, in a sum set by the court of not to exceed $500 for each violation.”). Any binding action taken at any such meeting held in violation of the provisions of the Act is voidable. K.S.A. 75-4320(a).
Public agencies are required to make available to the public the schedules of their regular meetings:
(1) All meetings of all public agencies of this state, and any committees or subcommittees thereof, shall be held at specified times and places which are convenient to the public. In considering locations for public meetings, the agency shall evaluate space requirements, seating capacity, and acoustics.
(2) All public agencies shall provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that public agency. The schedule of regular meetings shall be made available to the public.
Ky. Rev. Stat. 61.820; see also 95-OMD-106 (finding that 9 a.m. school board meeting is convenient for public even though it is inconvenient for teacher).
Generally must be provided by "all public bodies, except that the legislature and its committees and subcommittees, shall give written public notice of their regular meetings, if established by law, resolution or ordinance, at the beginning of each calendar year. Such notice shall include the dates, times and places of such meetings." La. Rev. Stat. Ann. § 42:19(A)(1). Any exception to the requirement for notice of date, time, place and agenda should be narrowly and strictly construed. Wagner v. Beauregard Parish Police Jury, 525 So.2d 166, 169 (La. App. 3rd Cir. 1988).
Notice must be given no later than 24 hours before the meeting and at the beginning of each calendar year if regular meetings are established by law, resolution, or ordinance. La. Rev. Stat. Ann. § 42:19(A)(1). See Marien v. Rapides Parish Police Jury, 717 So. 2d 1187 (La. App. 3rdCir.), writ denied, 727 So. 2d 1166 (La. 1998); Op. Att'y Gen. 99-404.
Any member of the news media who requests notice shall be given notice of all meetings in the same manner as is given to members of the public body. La. Rev. Stat. Ann. § 42:19(A)(2).
Notice must be posted at the principal office of the public body holding the meeting, or if no such office exists, at the building where the meeting is held; or by publication in the official journal of the public body. La. Rev. Stat. Ann. § 42:19(A)(2); Op. Att'y Gen. 99-404.
A public body may not take up an item not on the agenda distributed at least twenty-four hours before the meeting except by a unanimous vote of the members present. La. Rev. Stat. Ann. 42:19(A)(1). Significant proposals must be identified specifically in the agenda. Hayes v. Jackson Parish Sch. Bd., 603 So.2d 274 (La. App. 2d Cir. 1992). Agenda items must be more substantive and detailed than simply "old business," "new business," or "unfinished business." Ops. Att'y Gen. 85-354 and 87-676. The notice need only be "reasonable," however. Shirley v. Beauregard Parish Sch. Bd., 615 So. 2d 17 (La. App. 3d Cir. 1993) (decision to hire individual for assistant principal vacancy not voidable because agenda stated only that it would "hear recommendations" for the position, and not that it would also act on the recommendations); Organization of United Taxpayers v. Louisiana Housing Finance Agency, 703 So. 2d 107 (La. App. 1st Cir. 1997), writ denied, 709 So. 2d 745 (La. 1998) (agenda item stating "Tax Credit Discussions" was sufficient notice of decision to grant extension of tax credits to a particular developer); See also Op. Att'y Gen. 93-230 (agenda must be reasonably clear so as to advise the public in general terms of the subjects to be discussed). A public body must vote affirmatively to enlarge the agenda before it votes on the substantive proposal to be added. Hayes v. Jackson Parish Sch. Bd., 603 So.2d 274 (La. App. 2d Cir. 1992); Wagner v. Beauregard Parish Police Jury, 525 So.2d 166 (La. App. 3rd Cir. 1988). Frequent use of the agenda amendment procedure should be avoided because such use could become a subterfuge for avoiding advance public notice of the actual agenda. Op. Att'y Gen. 87-649. A public body may not delegate its authority to determine its agenda. Jackson v. Assumption Parish Sch. Bd., 652 So. 2d 549 (La. App. 1st Cir. 1995). (School Board improperly delegated to school superintendent the authority to determine agenda and determine who could appear at public meetings). A public body may require the use of agenda "forms" for public participation in setting agenda. Op. Att'y Gen. 94-152. A public body may not avoid giving notice and preparing an agenda for each meeting by giving one notice at the beginning of the year and declaring itself to be in "continuing session" with a number of "segments" of its one meeting. Op. Att'y Gen. 95-226.
The notice must include the date, time, and place of the meeting, as well as the agenda. La. Rev. Stat. Ann. § 42:19(A)(l). There also 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)(1). The statement must be attached regardless whether such matters will be discussed in an executive session. Id.
The penalties for failure to give adequate notice are the same as for other provisions of Open Meeting Law. In Wagner v. Beauregard Parish Police Jury, 525 So.2d 166 (La. App. 3rd Cir. 1988) and Hayes v. Jackson Parish Sch. Bd., 603 So.2d 274 (La. App. 2d Cir. 1992), the courts voided actions taken in violation of the notice requirements of the statute (actions taken not specified in agenda). A court also may enter an injunction to prevent a public body from acting in conformity with a policy adopted at a meeting held without notice in violation of the Open Meeting Law. Shirley v. Beauregard Parish Sch. Bd., 615 So. 2d 17 (La. App. 3d Cir. 1993) (school board enjoined from acting in conformity with improperly adopted "personnel selection policy"). See Op. Att'y Gen. 98-232 (actions in violation of notice requirements are voidable only if suit challenging same is commenced within 60 days of the action).
Public notice must be given for all public proceedings, if these proceedings are a meeting of a body or agency consisting of 3 or more persons. This notice must be given in ample time to allow public attendance and must be disseminated in a manner reasonably calculated to notify the general public in the jurisdiction served by the body or agency concerned. In the event of an emergency meeting, local representatives of the media must be notified of the meeting, whenever practical, the notification to include time and location, by the same or faster means used to notify the members of the agency conducting the public proceeding. 1 M.R.S.A. § 406. Although notice must be given in “ample time to allow public attendance,” actual notice of as little as one day may be enough to satisfy the Act if the person complaining of lack of adequate notice has not been prejudiced. Crispin v. Town of Scarborough, 1999 ME 112, ¶¶ 24-27; 736 A.2d 241, 249.
Before meeting in open or closed session, the public body must give reasonable advance notice. § 3-302; 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); CLUB v. Baltimore City Board of Elections, 377 Md. 183, 194, 832 A.2d 804 (2003); see also OMA Manual, at 2-2. The General Assembly recognizes that sometimes meetings have to be held on short notice, and the Compliance Board has ruled that, "absent evidence that a public body scheduled a meeting primarily to foil the public's right to attend and observe, the Compliance Board ordinarily will accept the determination . . . that a meeting is needed at a particular time." OMA Manual, at 20. (citing 4 OMCB Opinions 51, 56 (2004).
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), 3-302(c)(4).
Posting notice at a convenient public location at or near the place of the session is permitted provided that the public body has given public notice that this method will be used. § 3-3026(c)(3). A public body shall keep a copy of all notices provided under § 3-302 for at least one year after the date of the session. § 3-302(d).
The notice is required to be in writing and must include the date, time, and place of the session. § 3-302(b). A public body must make available before meeting in an open session an agenda that contains “known items or business topics to be discussed’ and indicates whether any portion of the meeting will be closed. § 3-302.1. If the agenda has been determined at the time of notice, the agenda shall be made available along with the notice. § 3-302.1(a)(2). In any event, a public body must make the agenda available as soon as practicable and no later than 24 hours before the meeting. § 3-302.1(a)(3). The public body need not include information related to the portion of the agenda that is closed. § 3-302.1(c). The method(s) used for making an agenda available may be different from the method(s) used to provide notice. § 3-302.1(d).
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). 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.
Except in an emergency, notice of a meeting must be provided 48 hours in advance of the meeting, excluding Saturdays, Sundays, and legal holidays. G.L. c. 30A, § 20(b). The same time limits and posting requirements apparently apply for adjourned or continued sessions. See Tebo v. Board of Appeals of Shrewsbury, 22 Mass. App. Ct. 618, 495 N.E.2d 892, 895 (1986). The notice must be printed in a “legible, easily understandable format,” and it must contain the date, time, and place of the meeting, as well as “a listing of topics that the chair reasonably anticipates will be discussed at the meeting.” G.L. c. 30A, § 20(b).
To whom notice is given.
The only requirement is posting.
Notice of meetings of local bodies must be filed with the municipal clerk, and also “posted in a manner conspicuously visible to the public at all hours in or on the municipal building in which the clerk’s office is located.” G.L. c. 30A, § 20(c).
Notice of meetings of regional or district bodies must be filed and posted in each city or town within the region or district, in the same manner prescribed for the posting of notices of local bodies. In the case of a regional school district, the secretary of the regional school district committee must file the meeting notice with the clerk of each city or town within the district, and must also post the notice in the same manner prescribed for the posting of notices of local bodies. Id.
Notice of meetings of county bodies must be filed in the office of the county commissioners, and also “publicly posted in a manner conspicuously visible to the public at all hours” in one or more places designated by the county commissioners. Id.
Notice of meetings of state bodies must be filed with the Attorney General via website posting “in accordance with procedures established for this purpose.” The AG may require, or permit, other methods of notice if “the attorney general determines such alternative will afford more effective notice to the public.” Id.
Because the Open Meeting Law as revised effective 2010 requires that notice of an upcoming meeting must include a list of anticipated topics, public bodies may no longer fulfill the notice requirement by the expedient of posting a printed schedule of future meetings.
Public agenda items required.
The notice must include “a listing of topics that the chair reasonably anticipates will be discussed at the meeting.” G.L. c. 30A, § 20(b) (provision added effective 2010). The agenda items must be listed with “sufficient specificity to reasonably advise the public of the issues to be discussed at the meeting.” 940 CMR 29.03. The Attorney General’s Office appears to interpret the requirement as referring to what could be “reasonably anticipated” at the time of the posting of the meeting. See Dufault/Sudbury Bd of S’men, OML 2011/36 (Att’y Gen., Aug 31, 2011) (no violation where new, time-sensitive, topic arose on day of meeting).
Other information required in notice
None other than date, time, and place of meeting.
Penalties and remedies for failure to give adequate notice.
If an unforeseen matter arises that was not reasonably anticipated and therefore not included in the list of topics contained in the previously posted notice of the meeting, then “the best practice would be to postpone discussions on topics not listed on the meeting notice that are more than administrative or procedural discussions,” because “[t]he postponement of substantive discussions until such time as they may be appropriately noticed allows for transparency in a public body's proceedings….” Nevertheless, discussion on the unanticipated topic are not prohibited outright under such circumstances. See Dufault/Sudbury Bd of S’men, OML 2011/36 (Att’y Gen., Aug 31, 2011) (no violation where new, time-sensitive, topic arose on day of meeting).
Normally none other than possible judicial invalidation of actions taken at meeting should litigation be brought challenging lack of notice. See, e.g., G.L. c. 39, § 23B. $1,000 fine theoretically possible. G.L. c. 39 § 23B.
Notice is required for all meetings under the OMA: "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). The requirement that a person be "designated" to carry out the posting of public notice means that such a person must be formally chosen by resolution noticed in the minutes of the public body. 1977-78 Op. Att'y Gen. 21, 36 (1977).
For regular meetings, a public body must post within ten days after the first meeting in each calendar or fiscal year a public notice stating the dates, times, and places of its regular meetings. Mich. Comp. Laws Ann. § 15.265(2). If there is a change in the schedule of regular meetings, the public body is required to post, within three days after the meeting at which the change is made, a public notice stating the new dates, times, and places of regular meetings. Mich. Comp. Laws Ann. § 15.265(3).The OMA provides for interested parties to request copies of required notices:
(a) Upon the written request of an individual, organization, firm, or corporation, and upon the requesting party's payment of a yearly fee of not more than the reasonable estimated cost for printing and postage of such notices, a public body shall send to the requesting party by first class mail a copy of any notice required to be posted pursuant to section 5(2) to (5) [Mich. Comp. Laws Ann. § 15.265(2) to (5)].
(b) Upon written request, a public body, at the same time a public notice of a meeting is posted pursuant to section 5 [Mich. Comp. Laws Ann. § 15.265], shall provide a copy public notice of that meeting to any newspaper published in the state and to any radio and television station located in the state, free of charge. Mich. Comp. Laws Ann. § 15.266.
Public notices must be posted at the principal office of the public body, as well as at "any other locations considered appropriate by the public body." Mich. Comp. Laws Ann. § 15.264(b). In addition, if the public body is part of a state department, the legislative or judicial branch, an institution of higher education, or a political subdivision or school district, public notices are also to be posted "in the respective principal office of the state department, the institute of higher education, clerk of the house of representatives, secretary of the state, senate, clerk of the supreme court, or political subdivision or school district." Mich. Comp. Laws Ann. § 15.264(c). Cable television may be used as a medium for posting public notices. Mich. Comp. Laws Ann. § 15.264(b).
Public notices must contain the name of the public body to which the notice applies ,its telephone number, and its address. Mich. Comp. Laws Ann. § 15.264(a). See Lysogorski v. Bridgeport Charter Tp., 256 Mich.App. 297, 662 N.W.2d 108 (2003) (Despite an attendee's contention that he was unable to determine from the agenda the precise matter that the township board planned to discuss, the agenda contained the public body's name, address, and telephone number, and was properly published and therefore satisfied the statutory requirement of public notice).
When the place where the meeting of a public body is to be held is different from the address of the public body, the notice must contain both addresses in order to comply with the OMA. 1977-78 Op. Att'y Gen. 21, 36 (1977). The OMA sets forth special notice requirements for meetings which take place in residential dwellings. First, such meetings may only be held if a nonresidential building is not available within the boundary of the local government unit or school system without cost to the public body. Second, notice of such a meeting must be published as a display advertisement in a newspaper of general circulation in the city in which the meeting is to be held at least two days before the meeting and must state the date, time, and place of the meeting. The notice, which must be at the bottom of the display ad and set off in a conspicuous manner, must include the following language: "This meeting is open to all members of the public under Michigan's open meetings act." Mich. Comp. Laws Ann. § 15.265(6).
An action of a public body may be invalidated under Mich. Comp. Laws Ann. § 15.270; a court may compel compliance with the OMA or enjoin further noncompliance under Mich. Comp. Laws Ann. § 15.271. An action for mandamus against a public body may be commenced in the Court of Appeals under Mich. Comp. Laws Ann. § 15.271(3). Public officials who are found to have intentionally violated the OMA may be fined up to $1,000 under Mich. Comp. Laws Ann. § 15.272(1).
The only notice required for a "regular" meeting of a public body under the Open Meeting Law is a schedule "kept on file at its primary offices." Minn. Stat. § 13D.04, subd. 1. However, laws governing certain public bodies may specify required days and months for transacting meetings. (See Minn. Stat. § 375.07 with respect to requirements for meetings of county boards).
However, the Minnesota Supreme Court has held that the statute be construed to require "adequate, timely" notice in an area accessible to the public. Sullivan v. Credit River Township, 217 N.W.2d 502, 505–06 (Minn. 1974). It is a violation of the Open Meeting Law to conduct business before the time publicly announced for the meeting. Merz v. Leitch, 342 N.W.2d 141 (Minn. 1984).
If a public body decides to hold a regular meeting at a time or place different from the time or place listed on the schedule, it must give notice as if the meeting were a special meeting. Minn. Stat. § 13D.04, subd. 1.
If printed materials relating to agenda items are prepared by or at the direction of the governing body, and are distributed or available to those members, at least one copy of those materials shall be available in the meeting room for inspection by the public. Minn. Stat. § 13D.01, subd. 6.
There are no penalties for failure to give notice separate from the $300 civil penalty set forth for any institutional violation. Minn. Stat. § 13D.06, subd. 1.
No notice need be given if the time and place of meeting is specifically prescribed by statute. § 25-41-13. If there is no statutory provision, the public body is to state in its minutes the times and places and procedures by which its meetings are to be held. Legislative committee meeting times are announced during the session by loudspeaker or bulletin board, and at other times are kept by the clerk. § 25-41-13(3) and (4).
Any recess meeting, adjourned meeting, interim meeting or any called special meeting shall be posted within one (1) hour after such meeting is called.
If notice is required per the statute, then notice must be to “the general public.” § 25-41-13. If notice is required due to a recess meeting, adjourned meeting, interim meeting or any called special meeting, then notice must be posted “in a prominent place available to examination and inspection by the general public in the building in which the public body normally meets.” § 25-41-13(1).
If an agenda is distributed to the members of the public body, then it must be available for public access at the time of the meeting. § 25-41-5(4).
There is no notice provision contained in the Montana open meetings law. However, several district courts, in opinions not found among the national reporters, have issued rulings requiring as a precondition and part of the Montana open meetings law that notice of meetings be given sufficiently in advance of the meeting to permit the public to attend, and to publish an agenda which would generally apprise the public of the matters to be discussed during the meeting. See, e.g., Wilson, et al. v. Trustees of School District No. 3, No. 42522, First Judicial District (1978); Board of Trustees v. Board of County Commissioners, 186 Mont. 148, 606 P.2d 1069 (1980). Failure to comply with this notice requirement subjects any decision made in violation of this requirement to voidability under Mont. Code Ann. § 2-3-213. This latter section authorizes district courts to void any decision of any public body made in violation of the Montana open meetings law.
When a closed meeting is contemplated for reasons of privacy, it may only be closed when the public body has notified the person about whom the privacy pertained and given that person the opportunity to waive the right of privacy. See Goyen v. City of Troy, 276 Mont. 213, 915 P.2d 824 (1996).
No specific time limit for giving notice, except that County commissioners must give 48-hour notice before changing the time, manner, place or date of a regular meeting, or hold a special meeting. § 7-5-2122, M.C.A. Board of Trustees, Huntley Project School District 24 v. Board of County Commissioners, 186 Mont. 148, 606 P.2d 1069 (1980). Except in an emergency, special meetings of school boards require 48-hour written notice to the trustees. Mont. Code Ann. § 20-3-322(3).
Providing this notice to trustees does not release the district from its duty to provide adequate public notice. Sonstelie v. Bd. of Trustees, 202 Mont. 414, 658 P.2d 413 (1983).
Notice provisions give the public the right to know all the facts in possession of an agency and to have reasonable opportunity to review those facts before a hearing. This is to prevent what should be genuine interchange from being reduced to mere formality. Bryan v. Yellowstone County Elementary School District No. 2, 312 Mont. 257, 60 P.3d 381 (2002). A clear abuse of discretion took place when a district court failed to nullify actions of a county commission that disregarded statutes regulating the place, time, and voting procedure of open meetings. Board of Trustees, Huntley Project School District 24 v. Board of County Commissioners, 186 Mont. 148, 606 P.2d 1069 (1980). There is no specific statutory or case law governing where the notice is to be posted.
An agency may not take action on any matter discussed unless specific notice of that matter is included on an agenda and public comment has been allowed on that matter. § 2-3-103(1), Mont. Code Ann. The agenda for a meeting must include an item allowing public comment on any public matter that is not on the agenda and that is within the jurisdiction of the agency. 2-3-103(1), Mont. Code Ann.
Notice provisions give the public the right to know all the facts in possession of an agency and to have reasonable opportunity to review those facts before a hearing. This is to prevent what should be genuine interchange from being reduced to mere formality. Bryan v. Yellowstone County Elementary School District No. 2, 312 Mont. 257, 60 P.3d 381 (2002).
Any decisions made during the course of an inadequately noticed meeting subject those decisions to being voided by a district court. Bryan v. Yellowstone County Elementary School District No. 2, 312 Mont. 257, 60 P.3d 381 (2002).
Public bodies subject to Open Meetings Act must give "reasonable advance publicized notice of the time and place of each meeting by a method designated by each public body and recorded in its minutes." Neb. Rev. Stat. §84-1411(1) (Cum. Supp. 2017).
Open Meetings Act requires only that "reasonable advance . . . notice" be given. What is reasonable remains a question of interpretation, but should be more than a posting in three public places at 10:00 p.m. the evening before a special meeting. Pokorny v. City of Schuyler, 202 Neb. 334, 275 N.W.2d 281 (1979). Separate statutes governing particular public bodies may contain more specific requirements.
Notice must be given to "public" generally. Additionally, "the secretary or other designee of each public body shall maintain a list of the news media requesting notification of meetings and shall make reasonable efforts to provide advance notification to them of the time and place of each meeting and the subjects to be discussed at the meeting." Neb. Rev. Stat. §84-1411(4) (Cum. Supp. 2017).
Notice must contain agenda of subjects known at time of publicized notice, or else statement that current agenda is available for public inspection at principal office of public body. Neb. Rev. Stat. §84-1411(1) (Cum. Supp. 2017). Agenda may not be altered within 24 hours of meeting, except for "items of an emergency nature." Id.
Meeting held pursuant to inadequate notice may be declared void by district court. Neb. Rev. Stat. §84-1414(1) (Cum. Supp. 2017); Pokorny v. City of Schuyler, 202 Neb. 334, 275 N.W.2d 287 (1979). Court may award attorney fees to party successfully attacking inadequate notice. §84-1414(3). Knowing violation of statute by member of public body is a Class IV misdemeanor for first violation, Class III misdemeanor for second and subsequent violations. Neb. Rev. Stat. §84-1414(4).
Written notice of all meetings of all public bodies must be posted in at least four places within the jurisdiction of the public body and mailed at least three working days before the meeting is to occur. NRS 241.020.
Written notice must be mailed to any person who has requested notice of the meetings of the body. A request for notice lapses six months after it is made. The notice must be delivered to the postal service used by the body not later than 9 a.m. of the third working day before the meeting. N.R.S. 241.020(3)(b). A public body does not satisfy the requirements of the Open Meeting Law by sending an e-mail to an individual who has requested personal notice of public meetings although the individual may waive his or her statutory rights and instead may elect to receive timely notice by e-mail. See NRS 241.020(3)(c)(2) and Op. Nev. Att'y General No 2001-01 (February 9, 2001).
An agenda must include: (1) a clear and complete statement of the topics scheduled to be considered during the meeting; (2) list describing the items on which action may be taken and clearly denoting that action may be taken on those items; (3) a period devoted to comments by the general public; (4) if any portion of the meeting will be closed to consider the character, alleged misconduct or professional competence of a person, the name of the person whose character, alleged misconduct or professional competence will be considered; (5) if, during any portion of the meeting, the public body will consider whether to take administrative action against a person, the name of the person against whom administrative action may be taken; (6) notification that items on the agenda may be taken out of order, two or more agenda items may be combined; and the public body may remove an item from the agenda or delay discussion on the item at any time. NRS 241.020(2)(d)(1).
Failure to give adequate notice implicates the full range of remedies provided under the OML, including having any action taken by a public body without proper notice declared void. NRS 241.037.
The statute requires at least 24 hours public notice, unless an emergency meeting is held. RSA 91-A:2,II. RSA 91-A:2,II further provides that “a meeting of a legislative committee is held, publication made pursuant to the rules of the house of representatives or the senate, whichever rules are appropriate, shall be sufficient notice.” For other public meetings, notice “shall be posted in 2 appropriate places one of which may be the public body's Internet website, if such exists, or shall be printed in a newspaper of general circulation in the city or town” in which the meeting is to be held. RSA 91-A:2,II.
Failure to comply with the notice requirement may result in invalidation of the board's action. Stoneman v. Tamworth Sch. Dist., 114 N.H. 371 (1974); Carter v. City of Nashua, 113 N.H. 407 (1973).
A schedule of regular public meetings must be adopted by each public body within seven days following its annual reorganization meeting or, if no reorganization meeting is held, then by January 10 of each year. If the schedule of regular meetings is thereafter revised, notice of the revisions must be given within seven days following such revision. N.J.S.A. 10:4-18.
The annual schedule of regular meetings must be mailed to at least two newspapers circulated within the area of jurisdiction of the public body, including one newspaper which is to be designated as the "official newspaper" of the public body. (Note that the schedule need not be published by the newspapers; it must only be mailed to them.) N.J.S.A. 10:4-18; 10:4-8d; see Township of Bernards v. State Dept. of Community Affairs, 233 N.J. Super. 1, 558 A.2d 1 (App. Div.), certif. den. 118 N.J. 194, 195, 570 A.2d 959 (1989). The schedule must also be filed with: (i) the clerk of the municipality, for municipal public bodies; or (ii) the clerk of the county, for county-wide public bodies; or (iii) the Secretary of State, for state-wide public bodies. N.J.S.A. 10:4-8d. Additionally, the schedule must be mailed to any person who has requested it in writing and prepaid the fee established by the public body for such service. Requests for the schedule of regular meetings and notice of special meetings must be renewed annually. N.J.S.A. 10:4-19.
The annual schedule of regular meetings and any revisions must be prominently posted in at least one public place reserved for such announcements. N.J.S.A. 10:4-8. The place of posting is usually adopted by resolution of the public body, and generally is a bulletin board located in or near the public building where the meetings are held.
The annual schedule of regular meetings need not include the proposed agenda for each meeting. See N.J.S.A. 10:4-18. Consequently, there is no requirement that a public body give notice of the proposed agenda for each regularly scheduled meeting. See Crifasi v. Governing Body of Oakland, 156 N.J. Super. 182, 383 A.2d 736 (App. Div. 1978). However, most public bodies do post the agenda for each regularly scheduled meeting shortly after it is prepared. The agenda is usually posted in the same location as the annual schedule of regular meetings. When the agenda of a regular meeting is posted, the public body is not limited to discussion or action on that agenda; it may take up items not on the agenda unless the omission was intentional and was designed to deceive the public. See Crifasi v. Governing Body of Oakland, supra.
The annual schedule of regular meetings must contain the date and time of each meeting and its location "to the extent known." N.J.S.A. 10:4-18.
Where adequate notice of a regular public meeting has not been given, any person may: (i) seek injunctive relief in Superior Court to prevent the meeting from being held, N.J.S.A. 10:4-16; or (ii) bring an action in Superior Court within 45 days after the meeting to void any action taken, N.J.S.A. 10:4-15. Additionally, on complaint of the Attorney General or the County Prosecutor, any person who knowingly violates any provision of OPMA shall be fined $100 for the first offense and $500 for any subsequent offense. N.J.S.A. 10:4-17.
Except in a case of an emergency, the agenda shall be available to the public at least 24 hours prior to the meeting. The public body shall determine at least annually in a public meeting what notice for a public meeting is reasonable for that public body. NMSA 1978 § 10-15-1(D) and (E). The Attorney General recommends 10 days for regular meetings, 3 days for special and no less than 24 hours for emergency meetings. 1990 Op. Att’y Gen. No. 90-29. Notice shall include broadcast stations and newspapers that have provided a written request for such notice. NMSA 1978 § 10-15-1(D). There are no specific, statutory posting requirements except for recessed and reconvened meetings, and for such meetings, the public body must post notice of the date, time and place for the reconvened meeting on or near the door of the place where the original meeting was held and at least one other location appropriate to provide the public notice of the continuance of the meeting. NMSA 1978 § 10-15-1(E). Because "reasonable notice" is required, the Attorney General recommends posting in several places readily accessible to the public. A public agenda must include a list of specific items of business to be discussed or transacted at the meeting or information on how the public may obtain a copy of such an agenda. NMSA 1978 § 10-15-1(F). The general invalidation penalty would appear to be applicable. NMSA 1978 § 10-15-3 invalidates any resolution, rule or regulation, ordinance, or action of the public body in violation of the requirements of the Open Meetings Law.
Various State and local laws require public notice of the time and place of certain meetings. In addition, the OML requires that:
- Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before such meeting.
- Public notice of the time and place of every other meeting shall be given, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.
N.Y. Pub. Off. Law § 104(1) and (2) (McKinney 1988).
See Wright v. N.Y.C. Council, 2017 N.Y. Misc. LEXIS 4958 (Sup. Ct. New York Cty. Dec. 19, 2017) (finding violation of OML where meetings were not publicly noticed); Bowen v. State Comm’n of Correction, 104 A.D.2d 238, 484 N.Y.S.2d 210 (3d Dep’t 1984) (where meeting was scheduled less than a week in advance, notice given almost immediately after scheduling was reasonable and satisfied public notice requirement); 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) (notice posted on bulletin board without any notice to the media was not reasonable and was patently inadequate for meeting called on 3 1/2 hours’ notice).
Notice shall be given to the news media and the public. N.Y. Pub. Off. Law § 104(1) and (2) (McKinney 1988); See 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) (notice posted on bulletin board without any notice to the media was not reasonable and was patently inadequate for meeting called on 3 1/2 hours’ notice).
Public notice shall be conspicuously posted in one or more designated public locations, and when the public body has the ability to do so, notice must be posted on the body’s Internet website.
N.Y. Pub. Off. Law § 104(1), (2) & (4) (McKinney 2011 Pocket Part).
See Britt v. Cty. of Niagara, 82 A.D.2d 65, 440 N.Y.S.2d 790 (4th Dep’t 1981) (technical violation because no public notice was “conspicuously” posted was not alone sufficient ground to invalidate action taken where press was in fact notified and attended); Rivers v. Young, 26 Misc.3d 946, 892 N.Y.S.2d 747 (Sup. Ct. 2009) (“While . . . updat[ing a website] regularly may be inconvenient, inconvenience should not excuse failure to comply with statutory mandates.”).
The OML does not require notice of public agenda items. The statute only mandates notice of the time and place of the meeting. N.Y. Pub. Off. Law § 104 (McKinney 1988). See Parents v. Bd. of Educ., (Sup. Ct. Ulster Cty., Sept. 22, 1982); Exmore 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).
Only the time and place of a meeting are required to be noticed. N.Y. Pub. Off. Law § 104(1) and (2) (McKinney 1988). If video conference is being used the various locations must be noticed. N.Y. Pub. Off. Law § 104(4).
The OML expressly states that “[t]he public notice provided for by this section shall not be construed to require publication as a legal notice.” N.Y. Pub. Off. Law § 104(3) (McKinney 1988).
The courts have the power, in their 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). However, an unintentional failure to fully comply with the notice provisions of the OML shall not alone be grounds for invalidating action taken at a meeting of a public body. N.Y. Pub. Off. Law § 107(1) (McKinney 1988); Matter of Frigault v. Town of Richfield Planning Bd., 107 A.D.3d 1347, 968 N.Y.S.2d 673 (3d Dep’t 2013) (While Board changed the location of the meeting, the Board’s actions did not violated OML because the change was to ensure the public’s participation); Matter of Chenkin v. N.Y.C. Council, 72 A.D.3d 548, 898 N.Y.S.2d 839 (1st Dep’t 2010) (inadvertence or slight negligence on part of public officials is not sufficient ground upon which to invalidate respondent’s actions); Center Square Ass’n Inc. v. City of Albany Bd. of Zoning Appeals, 19 A.D.3d 968, 798 N.Y.S.2d 756 (3d Dep’t 2005) (Prior to conducting a noticed public meeting, as required by Public Officers Law § 104, the City of Albany Board of Zoning Appeals held an informal open meeting without providing any notice to the public. This prior informal meeting arguably violated the Open Meetings Law, but because the determination at issue was adopted at a subsequent public session of the Board, and because the prior informal meeting had itself been open to the public, an intermediate appellate court determined that good cause did not exist to declare the Board’s action void.) Britt v. Cty. of Niagara, 82 A.D.2d 65, 440 N.Y.S 2d 790 (4th Dep’t 1981). See also Phillips v. Cnty. of Monroe, 49 A.D.3d 1353, 853 N.Y.S.2d 820 (4th Dep’t 2008) aff’g No. 2001/14206, 2007 WL 4884524 (Sup. Ct., Monroe Cty., Dec. 10, 2007) (the fact that at least two members of the public were able to attend showed the public was not adversely affected by the truncated notice period, thus there was not good cause to nullify the ruling); 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 notice was not in full compliance with the OML, it was reasonable under the circumstances and invalidation of town board’s action was not warranted); 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) (where violations of notice provisions appeared intentional, invalidation of school board’s action would be upheld); 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); Dicesare v. Board of Education, No. 2907/88, (Sup. Ct., Dutchess Cty., Jan. 9, 1989) (unintentional failure to fully comply with notice provisions is not sufficient grounds to invalidate action); Crain v. Reynolds, N.Y.L.J., Aug. 12, 1998 (Sup Ct. New York Cty., 1998) (action taken at meeting was voided in part because chair of board had been quoted in newspaper as saying that she didn’t “think there will be a vote” on the issue, and she confirmed the quote was correct).
Misleading information given to press. Misleading information given to the press may invalidate notice. Crain v. Reynolds, N.Y.L.J., Aug. 12, 1998 (Sup Ct. New York Cty., 1998) (action taken at meeting was voided in part because chair of board had been quoted in newspaper as saying that she didn’t “think there will be a vote” on the issue, and she confirmed the quote was correct).
Public bodies must establish a schedule of regular meetings and make that schedule public. If a public body has a Web site and has established a schedule of regular meetings, the public body shall post the schedule of regular meetings to the Web site. G.S. § 143-318.12(d). If a public body has a Web site that one or more of its employees maintains, the public body shall post notice of any special meeting prior to the scheduled time of that meeting. G.S. § 143-318.12(e). Otherwise, there is no requirement of notice of each meeting. If a meeting is recessed rather than adjourned, it may be continued without notice beyond an announcement in the Open Meeting of the time and place the meeting will continue. G.S. § 143-318.12(b)(1). Public bodies having a schedule of regular official meetings also must keep the schedule on file for public inspection. G.S. § 143-318.12(a).
The schedule for state government public bodies must be on file with the Secretary of State. G.S. § 143-318.12(a)(1).
The schedule for county government public bodies must be on file with the clerk to the board of county commissioners. G.S. § 143-318.12(a)(2).
The schedule for city government public bodies must be on file with the city clerk. G.S. § 143-318.12(a)(3).
For other public bodies, the schedule must be on file with its clerk or secretary or if none, with the clerk to the board of county commissioners where the public body normally meets. If the schedule is revised, the revised schedule must be filed as indicated above at least seven days before the date of the first meeting held under the revised schedule. G.S. § 143-318.12(a)(4).
The Open Meetings Law contains no requirement that bodies have an agenda for regular meetings. However, if an agenda is created, it is a public record under the Public Records Law. G.S. § 132-1.
The penalties and remedies are the same as for any other violation of the Open Meetings Law, i.e. the meeting may be declared illegal and action taken may be voided. G.S. § § 143-318.16, 143-318.16A, 143-318.16B.
The open meetings law provides that public notice must be given in advance of all meetings of a public entity, including executive sessions, conference call meetings, and videoconferences. N.D.C.C. § 44-04-20(1). Unless otherwise specified by law, or as decided by the public entity, notices need not be published. N.D.C.C. § 44-04-20(1).
The notice must contain the date, time, and location of the meeting and, if practicable, the topics to be considered. N.D.C.C. § 44-04-20(2). However, the lack of an agenda in the notice, or a departure from, or an addition to, the agenda at a meeting, does not affect the validity of the meeting or the actions taken at the meeting. N.D.C.C. § 44-04-20(2). The notice must 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). For meetings to be held by telephone or videoconference, or other electronic means, the location of the meeting and the place the meeting is held is the location of a speakerphone or monitor. N.D.C.C. § 44-04-20(2).
If the governing body holds regularly scheduled meetings, the schedule of the meetings, including the notice information, if available, must be filed annually in January with the secretary of state for state-level bodies or for public entities, the city auditor or designee of the city for city-level bodies, and the county auditor or designee of the county for all other bodies, or the schedule must be posted on the public entity’s website. N.D.C.C. § 44-04-20(3) (emphasis added). The schedule must be furnished to anyone who requests the information. N.D.C.C. § 44-04-20(3).
The governing body’s presiding officer has the responsibility of assuring that the notice is given at the same time as the governing body’s members are notified, and that the notice is available to anyone requesting such information. N.D.C.C. § 44-04-20(5). When a request is made for notice of meetings, the request is effective for one year, unless a different time period is specified. N.D.C.C. § 44-04-20(5).
The notice must be filed with the secretary of state for state-level bodies or for public entities, the city auditor or designee of the city for city-level bodies, and the county auditor or designee of the county for all other bodies, or the schedule must be posted on the public entity’s website. N.D.C.C. § 44-04-20(3) (emphasis added). The schedule must be furnished to anyone who requests the information. N.D.C.C. § 44-04-20(3).
A committee of an institution under the authority of the state board of higher education, instead of the standard notice requirements, may file in the office of the president of the institution the name, address, and telephone number of a person who may be contacted to obtain specific times, dates, and locations of any meetings of that committee or to request specific notification of each meeting of that committee. N.D.C.C. § 44-04-20(7).
The notice must be posted at the principal office of the governing body holding the meeting, if one exists, and at the location of the meeting on the day of the meeting. N.D.C.C. § 44-04-20(4). In addition, unless all the information contained in the notice was previously filed with the appropriate office under N.D.C.C. § 44-04-20(3), the notice must be filed in the office of the secretary of state for state-level bodies or for public entities, the city auditor or designee of the city for city-level bodies, the county auditor or designee of the county for all other bodies, or posted on the public entity’s website. N.D.C.C. § 44-04-20(4).
The notice provision law is violated when a notice is not provided in substantial compliance with the law. N.D.C.C. § 44-04-20(9).
A violation of the notice provision law may be the subject of a civil action brought by an interested person or entity. N.D.C.C. § 44-04-21.2(1). The court may award declaratory relief, an injunction, a writ of prohibition or mandamus, costs, disbursements, and reasonable attorney’s fees against the entity. N.D.C.C. § 44-04-21.2(1). For an intentional or knowing violation, the court may also award damages in an amount equal to one thousand dollars or actual damages caused by the violation, whichever is greater. N.D.C.C. § 44-04-21.2(1).
Action taken at an improperly noticed meeting is voidable. N.D.C.C. § 44-04-21.2(2).
There is no time limit in the statute for giving notice of regular meetings. Usually, an ordinance, rule, regulation, or statute governing the public body will set forth the schedule for regular meetings, e.g., the first Monday of each month.
Every public body must establish, by rule, a reasonable method whereby any person may determine the time and place of all regularly scheduled meetings. Ohio Rev. Code § 121.22(F).
Every public body may establish by rule the manner of notice. Ohio Rev. Code § 121.11(F). Posting the notice on the door of the meeting place or publishing the notice in a local newspaper both satisfy the notice requirement. Swickrath & Sons Inc. v. Village of Elida, No. 1-03-46, 2003 Ohio App. LEXIS 5620 (Allen Nov. 24, 2003); see also Doran v. Northmont Bd. of Educ., 147 Ohio App. 3d 268, 770 N.E.2d 92, 2002-Ohio-386 (Ohio App. 2d Dist.) ("The general notification required in R.C. 121.22(F) could be as simple as posting a notice on the door where the school board meets.")
A public body is not required to include in its notice the agenda items to be discussed at a regular meeting. However, the public body must comply with requests to give "reasonable advance notification" of all meetings "at which any specific type of public business is to be discussed," provided the requester paid a reasonable fee. The advance notification may be satisfied by mailing copies of the agenda to requesters. Ohio Rev. Code § 121.22(F).
Notice of regular meetings need only state the time and place of the meetings. Ohio Rev. Code § 121.22(F).
Failure to provide notice of regular meetings as provided by law could invalidate official action taken at the meeting or as a result of the meeting. Ohio Rev. Code § 121.22(H).
Although subsection (H) of section 121.22 requires an invalidation of official action when the public body had not established a "rule" for giving notice, several appellate courts have refused to invalidate the act, finding the lack of a rule a mere technical and inconsequential error. E.g., Doran v. Northmont Bd. of Educ., 147 Ohio App. 3d 268, 770 N.E.2d 92, 2002-Ohio-386 (Ohio App. 2d Dist.); Barbeck v. Twinsburg Twp., 73 Ohio App. 3d 587, 597 N.E.2d 1204 (Summit 1992).
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 State ex rel. Inskeep v. Staten, 74 Ohio St.3d 676, 660 N.E.2d 1207 (1996) (mandamus to enforce open meeting requirement of city charter); White v. Clinton Cty. Bd. of Comm'rs, 76 Ohio St. 3d 416, 667 N.E.2d 1223 (1996) (mandamus to compel the keeping of minutes).
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).
All public bodies must give written notice by December 15th of the schedule showing the date, time and place of all regularly scheduled meetings of the public body for the next calendar year. 25 O.S. § 311.A.1. All state agencies must give notice to the Secretary of State; county agencies must give notice to the County Clerk; municipalities must give notice to the municipal clerk; and multicounty, regional, area wide or district public bodies must give notice to the county clerk where the body is located or where the public is served. Any change to the schedule must be given to the appropriate authorities (Secretary of State, county clerk or municipal clerk) as required under the law not less than ten (10) days prior to implementation of the change. 25 O.S. § 311.A.8.
Notices must be posted either in prominent public view at the principal office of the public body or at the location of the meeting if no public office exists at least 24 hours prior to the meeting excluding Saturdays, Sundays and legal holidays (25 O.S. § 311.A.9.a.) or on the public body’s internet website (25 O.S. § 311.A.9.b.). The Notice and Agenda must be visible before and after business hours. 1997 OK AG 98. Providing notice of a meeting by mail or by publishing in a local newspaper does not comply with the notice requirement of the Act. 2012 OK AG 24.
When a meeting is being conducted by videoconference, the notice and agenda for the meeting must state the location, address and telephone number of each available videoconference site. 25 O.S. § 307.1.A.2.a. The notice and agenda must also state the site from which each member of the public body will be present and participating in the meeting. 25 O.S. § 307.1.A.2.b. The public is allowed to be in each room from which a public official participates in the videoconference. 25 O.S. § 307.1.A.5.
The notice must contain all items to be considered at the public meeting. Any item not posted on the notice cannot be considered except that the public body may consider "new business" which is "any matter not known about or which could not have been reasonably foreseen prior to the time of posting." 25 O.S. § 311.A.10. See also 1982 OK AG 114 (“A public body should not take up new business unless it has indicated that it would do so on the agenda for the meeting”). The agenda must be plainly worded so that a person of ordinary education and intelligence can comprehend. Hayworth Bd. of Education v. Havens, 1981 Okla. Civ. App. 56, 637 P.2d 902 (agenda item stating school board to interview new administrator held insufficient for board action of hiring administrator). In addition, if an executive session is proposed, the agenda must contain sufficient information for the public to ascertain that an executive session will be proposed, identify the items of business and purposes of the executive session, and state specifically the statutory authority for an executive session. 25 O.S. § 311.B.2.
The date, time and place of the public meeting. 25 O.S. § 311.A.1. Including the date, place and time without including an agenda of the meeting is insufficient notice. Hillary v. State, 1981 Okla. 78, 630 P.2d 791. A public body may not post notice of two separate meetings held in separate locations at the same time on the same day, as a majority may not be present in two places at the same time. 2012 OK AG 24.
Language used by legislature in the public policy section of the act, together with the inclusion of a penal penalty, makes it a penal statute which must be strictly construed. State v. Patton, 1992 Okla. Crim. 57, 837 P.2d 483. All actions taken which are in willful violation of the Open Meetings Act are invalid. 25 O.S. § 313. Hayworth, supra (board hiring of superintendent without meeting agenda requirements invalidated); In re Appeal of the Order Declaring Annexation Dated June 28, 1978, supra (vote on annexation held without public body compliance with act held invalid); Okmulgee County Rural water Dist. No. 2 v. Beggs Public Works Authority, 2009 OK CIV APP 51, 211 P.3d 225 (Absent posted notices of its intent to consider the 2004 water contract, Beggs' execution and approval of the 2004 contract is invalid as "exceed[ing] the scope of action defined by the notice[s]."). Persons who willfully violate the provisions of the act are guilty of a misdemeanor and upon conviction can be fined $500 or imprisoned in county jail for one year, or both. 25 O.S. § 314. Hillary v. State, supra (defendant fined after being found guilty of violating the Open Meeting Act on three separate occasions when agendas for public meetings were not posted). See 2002 OK AG 07 (vote to add disclaimer to textbooks invalid because agenda did not contain sufficient notice to public that such disclaimer was to be discussed).
Under ORS 192.640(1) there is no specified time limit for notice of regular meetings, but notice must be “reasonably calculated” to give actual notice to interested persons, including news media, who have requested notice.
Special meetings require at least 24 hours’ notice, unless the minutes describe an emergency justifying the lack of such notice. ORS 192.640(3).
There is no specific posting requirement provided the methods are reasonably calculated to give actual notice.
ORS 192.640(1) specifies that the time and place for the meeting must be specified, and the notice must include a list of the principal subjects anticipated to be considered at the meeting, but public bodies may consider other subjects. In addition, if an executive session is to be held, the notice must state the specific provision of the Public Meetings Law authorizing such an executive session. ORS 192.640(2).
Under the penalties and enforcement section of the Public Meetings Law, ORS 192.680, a court may order equitable relief as appropriate for violation of the law. Although a decision made at an improperly noticed meeting shall not be voided if the public body properly reinstates the decision, there are limitations on the ability to reinstate a decision if a court finds the Public Meetings Law was violated intentionally or by willful misconduct by a quorum of the members of the governing body.
Under ORS 192.685, violators of the Public Meetings Law can be the subject of a complaint to the Oregon Government Ethics Commission, the state’s government ethics tribunal. If a court finds a violation was willful or intentional, it may order reasonable attorneys’ fees paid to a challenger of the meeting. If a court finds that a violation of the Public Meetings Law is the result of the willful conduct of a particular member or members, that member or members will be jointly and severally liable for any attorneys’ fees paid. ORS 192.680-85.
An agency must give three days’ notice of its first regular meeting of the year, and notice of the schedule of its remaining regular meetings in time to allow it to be published or circulated before the date of the meetings. Twenty-four hours’ notice must be given for rescheduled regular meetings. 65 Pa. C.S.A. § 709.
There is no requirement that an agency provide individualized written notice to a person whose business with an agency will be conducted at a particular meeting. See Sheetz, Inc. v. Phoenixville Borough Council, 804 A.2d 113 (Pa. Commw. Ct. 2002).
Publication of place, date and time in a newspaper of general circulation that is either published in the appropriate political subdivision or has a local circulation equal to or greater than any newspaper published there. 65 Pa. C.S.A. § 703(l)(i). See also Devich v. Borough of Braddock, 602 A.2d 399 (Pa. Commw. Ct. 1992) (holding that the advertisement of a special meeting posted in the Pittsburgh Press satisfied the public notice requirements of the Act). In dicta, one court stated that governmental agencies are required to post notices of meetings in a section of the newspaper captioned “Legal Notices” which would provide notice to the public as well as other newspapers and organizations. See Higgins v. Pub. Sch. Emps.’ Retirement Sys., 736 A.2d 745, 754 n.19 (Pa. Commw. Ct. 1999).
Prominently posting the place, date and time at the agency office. 65 Pa. C.S.A. § 703(l)(i). See In re Condemnation by West Chester Area Sch. Dist., 50 Pa. D & C 4th 449 (Chester Cty. Ct. C.P. 2001) (holding that the agency failed to adduce evidence that there was any posting of the meeting).
Sending copies of the notice on request to any interested party that has furnished the agency with a stamped, self-addressed envelope. 65 Pa. C.S.A. § 709(c).
For a recessed or reconvened meeting, the agency need only take the second and third steps. 65 Pa. C.S.A. § 703.
There is no agenda requirement. See E. Rockhill Twp. v. Pub. Utility Comm’n, 540 A.2d 600 (Pa. Commw. Ct. 1988). “The Act does not require that the notice to be published in a newspaper of general circulation contain a statement of the purpose of the meeting or a description of the business to be conducted at the meeting.” Devich, 602 A.2d at 401.
Action taken in a meeting that does not comply with notice requirements may be declared void by a court. See 65 Pa. C.S.A. § 713; see also In re Condemnation, 50 Pa. D. & C. 4th 449; Bensalem Twp. Sch. Dist. v. Gigliotti Corp., 415 A.2d 123 (Pa. Commw. Ct. 1980) (prior statute).
Pennsylvania courts have observed that “adequate notice to the public at large is an integral part of the public meeting concept; a meeting cannot be deemed to be public merely because its doors are open to the public if the public is not properly informed of its time and place.” Consumer Educ. and Protective Ass’n v. Nolan, 368 A.2d 675 n.4 (Pa. 1977). Thus, courts will invalidate and void action taken at meetings lacking proper notice, rejecting arguments that even though notice was not properly given, the failure was harmless because the parties to the appeal actually attended or knew about the meeting. See, e.g., In re Condemnation, 50 Pa. D. & C. 4th 449; Eaton v. Zoning Hearing Bd. of the Borough of Wellsboro, 471 A.2d 919 (Pa. Commw. Ct. 1984). That is because the notice requirement’s purpose is to notify the public generally, not just the parties to a Sunshine Act appeal. Id. at 465. “Of course, a ‘public agency may cure the effect of a meeting defective as to notice by ratifying the action at a subsequent meeting properly had.’” Id. at 468 (quoting Coder v. State Bd. of Chiropractic Examiners, 471 A.2d 563 (Pa. Commw. Ct. 1984)).
Written notice of the dates, times and places of regularly scheduled meetings must be given at the beginning of the calendar year. R.I. Gen. Laws § 42-46-6(a). Supplemental written public notice of the date, time, place, and a statement specifying the nature of the business to be discussed is required within a minimum of 48 hours before the date of the meeting, and copies of the notice must be maintained for at least one year. R.I. Gen. Laws § 42-46-6(b). If an emergency meeting is called, a meeting notice and agenda must be posted “as soon as practicable”. R.I. Gen. Laws § 42-46-6(c). When a meeting which was properly noticed and posted under the OML is continued to another date, without formal adjournment, the public body cannot rely on the original notice given. Any continuation meeting must be re-noticed and re-posted in accordance with the provisions of the OML. See Op. Att’y Gen. No. 91-08-14 (August 14, 1991), 1991 WL 498708.
The OML does not specifically address to whom notice must be given and only addresses the posting of notices.
Written public notice shall include, but need not be limited to, a posted notice at the principal office of the public body holding the meeting. If no principal office exists, the notice must be posted at the building in which the meeting is to be held, and in at least one other prominent area within the governmental unit. R.I. Gen. Laws § 42-46-6(c). Notice must also be filed electronically with the secretary of state pursuant to the rules and regulations are promulgated by the secretary of state. R.I. Gen. Laws § 42-46-6(c). Notice of a school committee meeting also must be published in a newspaper of general circulation in the school district under the committee's jurisdiction. R.I. Gen. Laws § 42-46-6(c). The Attorney General has specifically found that the OML requires all public bodies holding meetings to comply fully with the Act's provisions including those public bodies in “work sessions.” See Op. Att’y Gen., February 13, 1991.
A statement specifying the nature of the business to be discussed must be included in the written notice posted within a minimum of 48 hours before the date of the meeting. R.I. Gen. Laws § 42-46-6 (b). The agenda must list individual items to be discussed, and the Attorney General has determined that it is grossly inadequate to simply list broad agenda items such as “Old Business” and “New Business.” Op. Att’y Gen., OM 09-20/PR 09-36 (Dec. 17, 2009), 2009 WL 6329143.
In Tanner v. Town Council of East Greenwich, 880 A.2d 784, 797-8 (R.I. 2005), the Rhode Island Supreme Court attempted to give guidance as to what would constitute a statement specifying the nature of the business to be discussed. It found that the Legislature intended to establish a flexible standard that would provide fair notice to the public as to the nature of the business to be discussed or acted upon and the OML does not require an agenda to specifically state that the public body intends to vote on a particular issues. But in this particular instance the agenda listed “Interviews for Potential Board and Commission Appointments”, along with the name and interview time for each candidate, which the court found was misleading and failed to not reasonably inform the public that the town council would be voting on the candidates. Procedurally, the Tanner court held that the action was not rendered moot when the Town gave proper notice at a second meeting. See also Solas v. Emergency Hiring Council of State, 774 A.2d 820 (R.I. 2001) and Op. Att’y Gen., OM 09-20/PR 09-36 (Dec. 17, 2009), 2009 WL 6329143.
Listing “2005-6 School Budget” on the agenda, when the school committee anticipated that there would be a vote on the issue of whether to close Wickford Elementary School, was misleading and failed to fairly notify the public that the issues of school closure and consolidation would be discussed. Ohs v. North Kingstown School Committee, C.A. No. WC 05-441, 2005 WL 2033074/2005 R.I. Super. LEXIS 132 (R.I. Super. Aug. 10, 2005).
All public bodies are required under the OML to ensure that all open meetings are held in places accessible to handicapped persons. R.I. Gen. Laws § 42-46-13.
The OML provides for a maximum civil fine of $5,000.00 per meeting for willful violation of any other 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.
In the matter of Ohs v. North Kingstown School Committee, No. WC 05-441, 2007 WL 2360082 (R.I. Super. July 26, 2007), the Washington County Superior Court imposed the maximum fine of $5,000 against the school committee, based upon an intentionally misleading agenda item in this particular case and the secrecy with which the school committee had shrouded its past deliberations and decisions. But, in order not to unduly penalize town taxpayers, the Court said it would vacate the fine if the School Committee adopted a policy that would ensure strict compliance with the OML in the future.
For regular meetings written public notice must be given at the beginning of each calendar year. For special, called or rescheduled meetings notice must be given as soon as is practicable but at least 24 hours in advance except for emergency meetings. Emergency is not defined, but it would seem to be that which cannot wait 24 hours for action. Legislative committees must post their meeting times during weeks of the regular session of the legislature and give 24-hour advance notice for meetings when the body is out of session. Legislative subcommittees during session must give notice of a meeting only if it is practicable to do so. Subcommittees other than legislative subcommittees must make reasonable and timely efforts to give notice. S.C. Code Ann. (1991) § 30-4-80.
Persons or organizations, local news media, or such other news media as may request notification are to receive notice of the times, dates, places, and agenda of all public meetings and 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 regular meetings must be posted on a bulletin board at the office, the meeting place of the public body, and the website maintained by the public body if it has one. S.C. Code Ann. § 30-4-80(A) and (D). The notice must include the agenda, date, time, and place of the meeting, and must be posted more than 24 hours before the meeting. S.C. Code Ann. § 30-4-80(A)
An agenda is required and must be posted for special, called or rescheduled meetings and optional for regular meetings. If an agenda is used for a regular meeting it is to be posted 24 hours in advance of the meeting. S.C. Code Ann. § 30-4-80. Persons requesting notice and local news media are to receive notice and an agenda for all meetings, suggesting that the optional nature of an agenda contained in section 30-4-80(a) has been supplanted by a mandatory agenda requirement in section 30-4-80(d).
An ordinance adopted by a county following two unannounced meetings was invalidated. Business License Opposition Committee v. Sumter County, 426 S.E.2d 745 (S.C. 1992). The act provides for injunctive relief as well as a declaratory judgment. Criminal penalties are provided for, but no prosecution has been made.
South Dakota has separate notice laws for state and non-state entities.
1-25-1.1 Notice of meetings of public bodies other than the state and its boards, commissions, and departments––Violation as misdemeanor
All public bodies [except the state] shall provide public notice, with proposed agenda, that is visible, readable, and accessible for at least an entire, continuous twenty-four hours immediately preceding any meeting, by posting a copy of the notice, visible to the public, at the principal office of the public body holding the meeting. The proposed agenda shall include the date, time, and location of the meeting. The notice shall also be posted on the public body’s website upon dissemination of the notice, if such a website exists. For any special or rescheduled meeting, the information in the notice shall be delivered in person, by mail, by email, or by telephone, to members of the local news media who have requested notice. For any special or rescheduled meeting, each public body shall also comply with the public notice provisions of this section for a regular meeting to the extent that circumstances permit. A violation of this section is a Class 2 misdemeanor.”
The statute that expressly applies to the state is virtually the same, but requires posting of the notice at least seventy-two hours prior to meeting. SDCL §1-25-1.1.
Governing bodies are required to give adequate public notice of all meetings. T.C.A. § 8-44-103(a). See Kinser v. Town of Oliver Springs, 19 TAM 9-16 (Tenn. Ct. App. Feb. 10, 1994) (holding that notice of city council meeting posted inside City Hall "where everybody pays their water bill" and over entrance to police department "where people come to pay their tickets" was adequate because the meeting concerned a police personnel matter); Neese v. Paris Sch. Dist., 813 S.W.2d 432 (Tenn. 1990) (notice was inadequate); Hillsboro West End Neighborhood Ass'n Inc. v. Metro. Bd. of Zoning Appeals, 20 TAM 12-17 (Tenn. Ct. App. Feb. 24, 1995) (reasoning that notice of conditional permit being sought was sufficient when placed in newspapers and mailed to property owners). In Englewood Citizens For Alternate B v. The Town of Englewood, 1999 Tenn. App. LEXIS 406, the court set forth a three-prong test. To qualify as adequate public notice, the notice given must: (1) be posted in a location where a member of the community could become aware of such a notice; (2) reasonably describe the purpose of the meeting or the action proposed to be taken; (3) be posted at a time sufficiently in advance of the actual meeting in order to give citizens both an opportunity to become aware of and attend the meeting. Failure to specifically state in the notice every issue to be discussed in a meeting does not necessarily make notice inadequate when the meeting has several purposes. Souder v. Health Partners, Inc., 997 S.W.2d 140, 149-50 (Tenn. Ct. App. 1998).
There is no specified time limit for notice. Notice need only be "public notice." Notice must be "adequate public notice." See Franklin County v. The Town of Monteagle, 2001 Tenn. App. LEXIS 379 (Tenn. Ct. App. May 23, 2001) (publication of notice of regular meeting in local monthly newsletter and publication of two notices in newspaper of general circulation with time and place of meeting was adequate notice.)
Merely because there is "one passing comment" about the substance of a particular issue, with further discussion of the procedural or evidentiary matters related to the issue, with no decision regarding the ultimate disposition of the issue, there was no violation of the notice requirement of the Act when that issue had not been placed on the meeting agenda. Dunn v. Knox County, 2005 Tenn. App. LEXIS 254 (Tenn. Ct. App. Dec. 8, 2004). A "misleading notice is not adequate public notice." Englewood Citizens v. Town of Englewood, 1999 Tenn. App. LEXIS 406 (Tenn. Ct. App. June 24, 1999) (holding that agenda item identified as only "Letter to State concerning Hwy 411," was too cryptic to be adequate notice). The penalties and remedies for failure to give adequate notice are the same as for other violations of the law.
"The notice of a meeting of a governmental body must be posted in a place readily accessible to the general public at all times for at least 72 hours before the scheduled time of the meeting, except as provided by [S]ections 551.044-551.046." Tex. Gov’t Code§ 551.043(a). This may be satisfied in cases where the Act specifically requires or allows a governmental body to post notice of meetings on the Internet if the governmental body: (1) makes a good-faith attempt to continuously post the notice on the Internet during the prescribed period, and (2) complies with any duty to physically post notice at a particular location, where such physically posted notice is readily accessible to the general public during normal business hours. Id. § 551.043(b). However, Section 551.044(a) increases the time for notice from 72 hours to 7 days before meetings of a state board, commission, department, or officer having statewide jurisdiction, notice of which the secretary of state must post on the Internet. This section does not apply to the Texas Department of Insurance (as regards certain proceedings and activities) or the governing board of an institution of higher education. Id. § 551.044(b). A governmental body that recesses an open meeting to the following regular business day is not required to post notice "if the action is taken in good faith and not to circumvent the Act." Id. § 551.0411(a). Where a catastrophe occurs, as defined in Section 551.0411(c), and the notice of an open meeting was otherwise properly posted under Section 551.041, then such meeting may convene in a convenient location within 72 hours pursuant to Section 551.045 if the action is taken in good faith and not to circumvent the Act. Id. Tex. Gov’t Code § 551.0411(b). In Rivera v. City of Laredo, 948 S.W.2d 787 (Tex. App.—San Antonio 1997, writ denied), the court found that where a city recesses from a noticed meeting to reconvene more than one day later, the city must post a new notice, regardless of whether the city believed the second meeting is merely a continuation of the previous one. See also Op. Tex. Att’y Gen. No. DM-482 (1998).
The notice must be given to the general public. In some instances the news media must be given special notice by telephone or telegraph if they have requested it and have agreed to reimburse the district for the cost of providing the special notice. Id. § 551.052 (school districts); § 551.047 (emergency meetings and where 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 and which has agreed 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 (if an issue of the newspaper is published between the time of posting and the time of the meeting), and may post notice at another place convenient to the public. Id. § 551.055.
A governmental body of a water district or other district or political subdivision covering all or part of four or more counties must have a notice posted at a place convenient to the public in its administrative office or political subdivision, must 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 must also furnish the notice to the county clerk of the county in which the administrative office of the district or political subdivision is located (who must post the notice on a bulletin board at a place convenient to the public in the county courthouse). Id. § 551.053.
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 must also provide the notice to the county clerk or clerks of the county or counties in which the district or political subdivision is located. The county clerk(s) must post the notice on a bulletin located at a place convenient to the public in the county courthouse. Id.§ 551.054.
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.
In Smith County v. Thornton, 726 S.W.2d 2, 3 (Tex. 1986), the Texas Supreme Court held that Section 551.053 "requires literal compliance." In that case, notice of a Monday Commissioners' Court meeting was posted Friday in the county courthouse, which was locked over the weekend. The Texas Supreme Court held that this notice did not comply with the Act because it "was not posted in a place readily accessible to the general public for 72 hours." Id. However, the Texas Supreme Court has ruled that the Act's notice requirements can be satisfied by dual posting. In City of San Antonio v. Fourth Court of Appeals, 820 S.W.2d 762 (Tex. 1991), the city posted notice of a council meeting in two locations-on a bulletin board inside City Hall (which is locked each night) and on a kiosk in front of City Hall's main entrance. The inside notice met the location requirement of Section 551.050. The kiosk notice met the requirement of Section 551.043, that notice "be posted in a place readily accessible to the general public at all times for at least 72 hours." Id. at 766. The Texas Supreme Court rejected an argument that the notice requirements of Section 551.050 and Section 551.043 be read together to require that one notice be available inside City Hall for at least 72 hours. "[T]he legislative scheme does not require a single notice that must satisfy both subsections but permits dual notice." Id. at 768. One dissenting justice criticized this position at length. Id. at 779-80 (J. Mauzy, dissenting).
The written notice must indicate the date, hour, place, and subject of each meeting held by the governmental body. Tex. Gov’t Code§ 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. (Texas Supreme Court held that the label of "personnel" inadequately described the school board's intention to hire a new school superintendent, as that issue was one of special interest; "litigation" is insufficient to describe consideration of a major pending desegregation lawsuit.). While a governmental body may permit members of the public to offer comments regarding matters not specified in the posted meeting notice, prior knowledge of subject matters on which the public will comment may give rise to an obligation on the part of the governmental body to tailor its notice to that knowledge. Op. Tex. Att’y Gen. No. JC-0169 (2000).
Several other courts have also addressed the sufficiency of written notices: Sokolow v. League City, 37 F. Supp. 2d 940, 946-47 (S.D. Tex. 1999) (notice of meeting containing "discuss and possibly take action on the duties, responsibilities of the City Attorney" was sufficient to give notice of a meeting in which city council voted to terminate city attorney); City of San Antonio v. Fourth Court of Appeals, 820 S.W.2d 762 (Tex. 1991) (notice of a meeting to consider a condemnation ordinance need not give a metes and bounds description of land to be condemned; a list of county blocks that might be affected is sufficient); Odessa Tex. Sheriff's Posse, Inc. v. Ector County, 215 S.W.3d 458, 472 (Tex.App.-Eastland 2006, pet denied) (The test for the adequacy of a meeting notice under the Act is whether the notice is “sufficiently specific to alert the general public to the topic to be considered.”); Point Isabel Indep. Sch. Dist. v. Hinojosa, 797 S.W.2d 176, 179-82 (Tex. App.—Corpus Christi 1990, writ denied) (absent a showing of some special interest, the words "employment of personnel" adequately notified the public that the school board would consider, among other things, filling the position of band director; however, such description was too general to adequately inform the public of the decision to name three school principals because there was "special public interest" in these positions); Mayes v. City of De Leon, 922 S.W.2d 200, 204 (Tex. App.—Eastland 1996, writ denied) (mere recitation of "personnel" was insufficient notice because the public has a special interest relating to the employment of its police chief); Finlan v. City of Dallas, 888 F. Supp. 779, 790 (N.D. Tex. 1995) (where the upcoming closed meeting discussed a proposed $141 million arena and the potential for two major sports teams moving to the suburbs, the notices, which "merely parroted" the statute with phrases like "Deliberation Regarding Real Property under Sec. 551.072 of the Texas Government Code" and "Attorney Consultation under Sec. 551.071 of the Texas Government Code," were "woefully inadequate" and considered by the court "to be no notice at all"). The specificity of notice is tied to the level of public interest involved, not to the private interests of the individuals most likely to be affected by the proposed government action. Stockdale v. Meno, 867 S.W.2d 123,125-26 (Tex. App.—Austin 1993, writ denied); Rettberg v. Texas Dept. of Health, 873 S.W.2d 408, 411-12 (Tex. App.—Austin 1994, no writ).
Actions taken in violation of the Act, including failure to give adequate notice, are voidable. Tex. Gov’t Code§ 551.141. In Lower Colorado River Auth. v. City of San Marcos, 523 S.W.2d 641 (Tex. 1975), the Texas Supreme Court approved of a lower court invalidating the decisions of the Lower Colorado River Authority to change utility rates because it violated the notice provisions of the state's open meeting law. See also Piazza v. City of Granger, 909 S.W.2d 529, 534-35 (Tex. App.—Austin 1995, no writ) (holding that the city violated the 72 hours' notice requirement for meeting at which a policeman was terminated thereby entitling him to injunctive relief in the form of reinstatement, back pay, and attorneys' fees); Meeker v. Tarrant County College Dist., 317 S.W.3d 754, 759 (Tex.App.—Fort Worth 2010, pet. denied) (the Act “does not state that governmental acts in violation of [the Act] are void or void ab initio”). In addition, an interested person, including a member of the news media, may seek mandamus relief or an injunction to stop, prevent, or reverse violations or threatened violations of the Act. Tex. Gov’t Code§ 551.142(a); City of Elsa v. Gonzalez, 325 S.W.3d 622, 627 (Tex. 2010).
Also, criminal penalties exist for a member of a governing body who, in connection with a closed meeting, knowingly violates the Act. Tex. Gov’t Code§ 551.144(a). 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. § 551.144(b). 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. See Tex. Gov’t Code § 551.143(a).
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).
Public 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).
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).
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 timing and placement of notices for regular meetings are controlled by other “statute[s], charter[s], regulation[s], ordinance[s], bylaw[s], resolution[s], or other determining authorit[ies] of the public body,” not the law. 1 V.S.A. § 312(c)(1). If a meeting or proceeding is to be adjourned or continued, then it is sufficient notice if the “time and place” of the next meeting is publicly announced before adjournment. Id. § 312(c)(4).
At least 48 hours prior to a regular meeting, the agenda for that meeting must be “posted to a website, if one exists, that the public body maintains or designates as the official website of the body” and, “in the case of a municipal public body, posted in or near the municipal office and in at least two other designated public places in the municipality.” Id. § 312(d)(1). Moreover, “[a] meeting agenda shall be made available to a person prior to the meeting upon specific request.” Id. § 312(d)(2).
Notice of meetings is addressed comprehensively in Va. Code Ann. § 2.2-3707.C. through E. Every public body shall give notice of the date, time, and location of its meetings by posting on its official website, placing notice in a prominent public location where its notices are regularly posted, and placing it in the offices of its clerk or chief administrator. The notice shall be posted at least three working days prior to the meeting. Va. Code Ann. § 2.2-3707.C.
The public body shall provide notice of all meetings directly to each person requesting notification. A written request for notice may be filed annually and must include the name, address, zip code, daytime telephone number, electronic mail address (if available) and organization of the requester. Va. Code Ann. § 2.2-3707.E.
At least one copy of the proposed agenda and all agenda packets and materials provided to members of the public body, unless the materials are excluded under the Act, shall be made available for inspection by the public at the same time the documents are provided to the members of the public body. Va. Code Ann. § 2.2-3707.F.
Failure to comply with the requirements of the Act concerning meetings is subject to remedies as provided in the Act. See Va. Code Ann. § 2.2-3714.
OPMA does not specify any time limit for giving notice of a regular meeting. Agencies are only required to give notice in accordance with statutes or rules pertaining to that agency. By definition “regular meeting” refers to a periodic schedule that has been established. See E.1.b(3) below.
OPMA does not specify to whom notice must be given for regular meetings. All that OPMA requires is that the governing body establish a time for holding regular meetings. RCW 42.30.070.
OPMA requires that the governing body of a public agency must adopt a regular meeting schedule “by ordinance, resolution, bylaws, or by whatever other rule is required for the conduct of business by that body.” RCW 42.30.070. State agencies must file a schedule of the time and place of regular meetings for publication with the Washington State Register on or before January of each year. Notice of any change from such meeting schedule must be published in the State Register for distribution at least 20 days prior to the rescheduled meeting date. RCW 42.30.075.
Public agencies with governing bodies must make the agenda of each regular board meeting available online no later than 24 hours before the published start time of the meeting. RCW 42.30.077. In the case of special meetings, advance notice is required. The notice must specify “the business to be transacted.” RCW 42.30.080.
There are no requirements for notice of a regular meeting beyond those described in subsections (1) through (4) immediately above.
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 County Fire Dist., 50 Wn. App. 733, 750 P.2d 656. 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 for the first violation, and $1,000 for subsequent violations. RCW 42.30.120(1), (2). A knowing violation can also result in a recall from office. In re Recall of Pepper, 189 Wn.2d 546, 403 P.3d 839 (2017)], reconsideration denied (Dec. 4, 2017); In re Andersen, 131 Wn.2d 92, 929 P.2d 410 (1997); Matter of 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 requires that, except in emergencies, state executive agencies must give notice of their meetings "at least five days prior to the date of the meeting":
Each governing body of the executive branch of the state shall file a notice of any meeting with the secretary of state for publication in the state register. Each notice shall state the date, time, place and purpose of the meeting. Each notice shall be filed in a manner to allow each notice to appear in the state register at least five days prior to the date of the meeting.
W. Va. Code § 6-9A-3. In the event of "an emergency requiring immediate official action," these executive agencies "may file an emergency meeting notice at any time prior to the meeting." Id.
The Act does not prescribe any particular time limit for giving notice of the meetings of other public bodies. Instead, the applicable time limit is established by each such agency, whose governing body is required to promulgate rules providing for notice of meetings to be made "in advance . . . except in the event of an emergency requiring immediate official action." W. Va. Code § 6-9A-3. In the cases of state agencies, these regulations must be filed in the office of the Secretary of State and published in the state register.
For most public bodies, the Act simply states that advance notice of a meeting must be given "to the public and news media." W. Va. Code § 6-9A-3. Again, the statute requires the governing body of each public agency to promulgate rules establishing specific notice provisions. However, as noted above, the Act provides a special rule for the governing bodies of the executive branch of the state, which are required to "file a notice of any meeting with the secretary of state for publication in the state register." Id.
Except for the requirement that state executive agencies file notice of their meetings with the secretary of state for publication in the state register, the statute does not state where notice of meetings must be posted. The Attorney General has advised that posting a notice on the courthouse door will fulfill the requirements of the statute for county commission meetings, Op. Att'y Gen., June 23, 1978, and that all state agencies should, at a minimum, file notice with the Secretary of State. Op. Att'y Gen., (Nov. 20, 1978).
There are no provisions in the Open Meetings Act specifying agenda items that must be included in the notice of a public agency's regular meetings. However, the notice of any special meeting must include the purpose of the meeting. W. Va. Code § 6-9A-3.
The contents of the notice are left up to the governing body to determine when it promulgates its notice regulations. At a minimum, the Act requires the notice to state the date, time, place and agenda of regular meetings, and the time, place and purpose of special meetings. Every notice given by the governing bodies of the executive branch of the state must include the time, place and purpose of the meeting. Notice of the agenda of a meeting is required of all governing bodies; when the governing body of the state government's executive branch is required to file a notice of a meeting with the secretary of state including the date, time, place and the "purpose" of the meeting rather than its agenda.
In Capriotti v. Jefferson Cnty Planning Comm’n, No. 13-1243 (W. Va. Supreme Court, February 26, 2015) (memorandum decision), the court held that a generic notice that “Reports from Legal Counsel and legal advice to [Planning Commission]” . . . “was not adequate to inform the Petitioners, and other members of the public, that it planned to discuss the FAF litigation or a proposed settlement thereof.” The agenda’s “generic reference to ‘legal advice’ provided no indication whatsoever that the ongoing FAF proceedings would be a topic of discussion at the Planning Commission’s . . . meeting” and thus violated West Virginia Code § 6–9A–3.
The Open Meetings Act includes a very specific penalty for the failure to provide adequate notice in accordance with the statute. Where an "adversely affected party" files a petition challenging the public agency's action, any court of competent jurisdiction "may invalidate any action taken at any meeting for which notice did not comply" with the notice requirements of the Act. W. Va. Code § 6-9A-3.
The impact of this provision can be significant. In Wetzel County Solid Waste Authority v. W. Va. Division of Natural Resources, 184 W. Va. 482, 401 S.E.2d 227 (1990), a landfill company's permit to dispose of large quantities of waste material was invalidated. After years of litigation, the permit issue was decided on the basis of a circuit judge's ruling that the county commission's approval of the permit at a meeting was invalid because the commission had failed to give adequate notice that the permit would be considered, as required by the Open Meetings Act.
However, the West Virginia Court has emphasized that “[a] finding that a violation [of the Open Governmental Proceedings Act] occurred ... does not necessarily require invalidation of all actions taken during or following from the wrongfully held ... meeting.” McComas v. Bd. of Educ. of Fayette Cnty., 197 W. Va. at 201, 475 S.E.2d at 293 (1996).
Further, it is a criminal misdemeanor offense for any member of a public or governmental body to willfully and knowingly violate the provisions of the act. Upon conviction, the offender may be required to pay a fine of not less than one hundred dollars nor more than five hundred dollars. W. Va. Code § 6-9A-7.
"Public notice of every meeting of a governmental body shall be given at least 24 hours prior to the commencement of such meeting unless for good cause such notice is impossible or impractical, in which case shorter notice may be given, but in no case may the notice be provided less than 2 hours in advance of the meeting." Wis. Stat. § 19.84(3).
"Public notice of all meetings of a governmental body shall be given in the following manner: . . . . (b) By communication from the chief presiding officer of a governmental body or such person's designee to the public, to those news media who have filed a written request for such notice, and to the official newspaper . . . or, if none exists, to a news medium likely to give notice in the area." Wis. Stat. § 19.84(1). When a meeting is held to take final action on the dismissal of a public employee, or to conduct an evidentiary hearing on a dismissal, the body must provide actual notice to the employee involved. Wis. Stat. § 19.85(1)(b). No such actual notice is required if the body does no more than discuss a possible dismissal. See State ex rel. Epping v. City of Neillsville Common Council, 218 Wis. 2d 516, 521, 581 N.W.2d 548, 551(Wis. Ct. App. 1998) ("Thus, if no evidentiary hearing or final action took place during the closed sessions, Epping was not entitled to actual notice of the meetings."). But see Campana v. City of Greenfield, 38 F. Supp. 2d 1043 (E.D. Wis. 1999) (where mayor made specific accusations against treasurer, brought 30 documents allegedly supporting accusations, and provided testimony, meeting was an "evidentiary hearing" requiring actual notice to treasurer).
"Every public notice of a meeting of a governmental body shall set forth the . . . subject matter of the meeting, including that intended for consideration at any contemplated closed session, in such form as is reasonably likely to apprise members of the public and the news media thereof." Wis. Stat. § 19.84(2). General subject matters such as "new matters" or "citizens and delegations" are not sufficiently specific. 66 Ops. Att'y Gen. 143, 195 (April 18, 1977). A notice specifically declaring that the body will consider a resolution approving an identified plan is not rendered deficient under the statute by a "boilerplate" disclaimer stating that the body "will not take any formal action at this meeting." State ex rel. Olson v. City of Baraboo, 2002 WI App 64, ¶ 15, 252 Wis. 2d 628, 638, 643 N.W.2d 796, 801 (section 19.84(2) "does not expressly require that the notice indicate whether a meeting will be purely deliberative or if action will be taken"). Although such a notice "creates some ambiguity," the court held that it "contains enough information to alert any interested individual who might have been confused by the notice to find out more." Id. ¶ 17, 252 Wis. 2d at 639, 643 N.W.2d at 801.
With respect to the subject matter notice requirement, the Wisconsin Supreme Court determined that “the plain meaning of Wis. Stat. § 19.84(2) sets forth a reasonableness standard, and that such a standard strikes the proper balance contemplated in Wis. Stat. §§ 19.81(1) and (4) between the public’s right to information and the government’s need to efficiently conduct its business.” State ex rel. Buswell v. Tomah Area Sch. Dist., 2007 WI 71, ¶ 3, 301 Wis. 2d 178, 732 N.W.2d 804. Factors to be considered in making this determination include: “The burden of providing more detailed notice, whether the subject is of particular public interest, and whether it involves non-routine action that the public would be unlikely to anticipate.” Id., ¶ 28. The determination must be made on a case-by-case basis, bearing in mind that “the demands of specificity should not thwart the efficient administration of governmental business.” Id., ¶ 29.
The meeting notice must also include "the time, date, place . . . of the meeting . . . in such form as is reasonably likely to apprise members of the public and the news media thereof." Wis. Stat. § 19.84(2). When a quorum of a parent body plans to attend a meeting of a subcommittee or other subordinate body, notice of the meeting of the parent body must be given in addition to the notice of the subcommittee's (or other subordinate body's) meeting. State ex re. Badke v. Village Bd. of Greendale, 173 Wis. 2d 553, 494 N.W.2d 408 (1993).
See IV.C. 8 and 10 below for the penalties. Attending a meeting with knowledge that proper notice has not been given is a violation of the Open Meetings Law. State v. Swanson, 92 Wis. 2d 310, 284 N.W.2d 655 (1979).
As previously noted, the governing body may provide for holding regular meetings by ordinance or resolution if no statutory provision controls. The ordinance or regulation will establish the time and place of the meetings. The ordinance or resolution must be published at the time of its adoption, but no further notice of regular meetings is required by the Public Meetings Law, except to persons who have previously requested such notice. Wyo. Stat. § 16-4-404(a); E.G. Rudolph, supra at 100-101. This ambiguity is remedied by some of the statutes relating to specific agencies. See, e.g., Wyo. Stat. § 21-3-110(a)(ii) (1977, Rev. 1986) (school districts required to publish notice of times and place of regular meetings twice a year).
The governing body must give at least eight hours of notice before holding a special meeting.
Notice is given to persons who have previously requested such notice, or as provided in specific statutes relating to the governing body or in the governing body's ordinances or resolutions. Wyo. Stat. § 16-4-404(a); E.G. Rudolph, supra, at 101. Notice of special meetings must be given to media outlets requesting such notice.
There is no posting requirement for regular meetings, unless provided in specific statutes relating to the governing body or in the governing body's ordinances or resolutions. If a meeting is recessed, a copy of the recess order must be conspicuously posted on or near the door where the meeting was held. Wyo. Stat. § 16-4-404(c) (1977, Rev. 1982).
There is no explicit agenda requirement for regularly scheduled meetings. If, however, a meeting is recessed to another location, only agenda items may be discussed. Wyo. Stat. § 16-4-406 (1977, Rev. 1982). This implies an agenda requirement, but there are no specific items required for the agenda, unless provided in statutes relating to the governing body or in the governing body's ordinances or resolutions.
Agendas must be posted for special meetings, and must be included in the notice to media outlets. The governing body may not vary from the agenda posted for a special meeting.
Other than that for special meetings, the Public Meetings Law has no additional requirements; refer to specific statutes relating to the governing body or in the governing body's ordinances or resolutions.
In State, ex rel. Van Patten v. Ellis, 37 Wyo. 124, 259 P. 812 (1927), a school district did not follow statutory requirements for a meeting in which the board decided to pay parents for the expense of having their children attend school in another district closer to their home. The money was never paid, and the parents attempted to collect from the district. The Wyoming Supreme Court held that the district's decision was void because the meeting was not called properly. The court's holding was not based upon any specific statute, but upon the generally recognized principle that boards and similar bodies can act only at a meeting called with proper notice. E. G. Rudolph, supra, § 3.1 at 101-102. This proposition was furthered in Twichell v. Bowman, 440 P.2d 513 (Wyo. 1968). Once again, two members of a three-member school board, acting without notice to the third, made arrangements to buy out the school superintendent's contract. Notwithstanding subsequent ratification of the action at a regular meeting, the court held that the payment might be recovered by the district if it was a "willful evasion of the law, fraud, collusion, concealment, or elements which disclose violations of principles of public policy." 440 P.2d at 516, quoting from Tobin v. Town Council of Town of City of Sundance, 45 Wyo. 219, 17 P.2d 666, 678 (1933); but cf. George W. Condon Co. v. Board of County Commissioners, 56 Wyo. 38, 103 P.2d 401 (1940) (even though the contract was illegal and void, the plaintiff might be able to recover quasi-contractually for the benefit conferred). All of these cases predate the passage of the Public Meetings Law. They demonstrate, however, that where there is a legal obligation to provide notice, the court will take a hard look at the legality of the resulting decision.
The 2005 amendments adopted by the Legislature make a violation punishable by a civil penalty up to $750. The Act does not limit who can initiate court action for a civil penalty.