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b. What effect does absence of a quorum have?

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  • Alaska

    If a quorum is not present, there may still be a meeting if the group is large enough that four members (more than three) does not constitute a majority.

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  • Arizona

    Discussions and deliberations between less than a quorum, when used to circumvent the purposes of the OML, would constitute a violation of the OML. Ariz. Att’y Gen. Op. No. 75-8.

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  • Arkansas

    It is settled that a quorum of the governing body need not be present for the meeting to be subject to the FOIA. Mayor & City Council of El Dorado v. El Dorado Broad. Co., 260 Ark. 821, 544 S.W.2d 206 (1976); Ark. Op. Att’y Gen. No. 95-098.

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  • California

    If a meeting of a legislative body of a local agency lacks a quorum, it does not constitute a meeting under the Brown Act. Cal. Gov't Code § 54952.2. The Brown Act also prohibits "seriatim" meetings whereby, through a series of meetings comprised of less than a quorum, a topic is communicated to a quorum or a quorum is briefed or deliberates on an issue. Stockton Newspapers v. Members of Redevelopment Agency of City of Stockton, 171 Cal. App. 3d 95, 105, 214 Cal. Rptr. 561 (1985); Page v. Miracosta Community College Dist., 180 Cal. App. 4th 471, 503-04, 102 Cal. Rptr. 3d 902 (2010) (taxpayer stated a claim that a board of trustees of a community college district violated the Brown Act’s prohibition against seriatim meetings when during a mediation of claims brought by the college president some members of the board repeatedly left closed meeting to talk to mediator regarding potential claims); 63 Ops. Cal. Att'y Gen. 820 (1980).

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  • Colorado

    Because a meeting is open to the public if only two members of any state board or commission, or if only three members of a local government board or commission attend, the absence of a quorum does not affect the public status of the meeting, although it may affect the business conducted at the meeting.

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  • Delaware

    Without a quorum, there is no meeting. 29 Del. C. § 10002(b).

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  • District of Columbia

    Absent a quorum, a gathering of a public body presumably does not constitute a "meeting" subject to the Act.  D.C. Code Ann. §2-574(1).

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  • Georgia

    The Act requires the gathering of a quorum, broadly defined.  O.C.G.A. § 50-14-1(a)(3)(A).  See, e.g., Claxton Enterprise v. Evans County Board of Commissioners, 249 Ga. App. 870, 549 S.E.2d 830 (2001); Jersawitz v. Fortson, 213 Ga. App. 796, 446 S.E.2d 206 (1994).  But absent a quorum, even broadly defined, “the letter of the law” is not violated.  Claxton Enterprise, 249 Ga. App. at 875, 549 S.E.2d at 835.

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  • Hawaii

    None, except as it affects the power of the board to take official action. See Haw. Rev. Stat. § 92-5(b) (proscribing secret meetings); Att'y Gen. Op. No. 86-19 (Sept. 2, 1986) (citing Section 92-5(b) as applicable even when a quorum is not required to conduct business); see also Applicability of the Haw. Sunshine Law to the Comms. of the [Univ. of Haw.] Bd. of Regents, Att'y Gen. Op. No. 85-27 (Nov. 27, 1985) (requiring Sunshine Law notice requirements be met even if quorum-short board is meeting deliberately to discuss official board business).

    Meetings without a quorum may serve important purposes. A neighborhood board failed to garner a quorum for a regularly scheduled meeting raising a question whether this "meeting" was sufficient to meet their obligation under the Neighbor Plan to hold a certain number of meetings per year. Corporation Counsel opined that although the Sunshine Law requires the presence of a quorum in order to conduct official business, convening the meeting upon issuance of proper notice was sufficient to meet the Plan requirements, even though the board had to adjourn immediately due to lack of a quorum. Honolulu Corp. Counsel Memo. of Law No. M84-11 (Apr. 10, 1984).

    Section 92-5(b) exempts "chance meetings" from the operation of the Sunshine Law. A "chance meeting" is a social or informal assemblage of two or more members at which matters relating to official business are not discussed. Id. § 92-2.

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  • Idaho

    The absence of a quorum may negate the possibility of a “decision” (Idaho Code § 64-202(1)) being made by the governing body but does not necessarily mean that a meeting of less than a quorum is not subject to the Open Meeting Law. If the meeting involves “deliberation,” (Idaho Code § 74-202(2)) the meeting is still subject to the law. “Deliberation” means the receipt or exchange of information or opinion relating to a decision, but shall not include informal or impromptu discussions of a general nature which do not specifically relate to a matter then pending before the public agency for decision. Idaho Code § 74-202(2).

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  • Illinois

    1. What effect does absence of a quorum have?

    The Illinois Attorney General has concluded that the Act applies to committees of a public body that may consist of less than a majority of a quorum of the members of the public body. The reasoning is that such committees are subsidiary bodies contemplated by the Act. See Op. Att'y.Gen.030 (1982).

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  • Indiana

    The law does not speak in terms of quorums, but rather majorities. There must be a majority present for the statute to apply. Ind. Code § 5-14-1.5-2(c). See City of Gary v. McCrady, 851 N.E.2d 359, 367 (Ind. Ct. App. 2006) (holding that there was no “meeting” because there was less than a majority present).

    In 2006, the Indiana Court of Appeals found no violation of the Act when meetings were held in groups constituting less than a majority, “in direct contravention to the public policy behind the Open Door Law.” Dillman v. Trustees of Ind. Univ., 848 N.E.2d 348, 352 (Ind. Ct. App. 2006). Accordingly, in 2007, the General Assembly amended the Open Door Law to prohibit such “serial” meetings where members of the governing body participate in two or more gatherings to take official action on public business, concerning the same subject matter, within a period of not more than seven days, where the same number of different members attending any of the gatherings at least equals a quorum of the governing body. Ind. Code § 5-14-1.5-3.1.

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  • Iowa

    Without a quorum, there is no meeting as defined by the statute. Iowa Code § 21.2(2).

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  • Kansas

    KOMA does not apply and no official action may be taken without a quorum. K.S.A. 75-4317a; Kan. Att’y Gen. Op. 1986-110.

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  • Kentucky

    The Open Meetings Act does not apply, generally, where less than a quorum of members is present. In Bourbon County Board of Adjustment v. Currans, 873 S.W.2d 836 (Ky. Ct. App. 1994), the Court held that the Act did not apply to a meeting of board members "[b]ecause of the absence of a quorum of board members." Id. at 839; see also 93-OMD-63 ("if a quorum was not present the meeting in question was not a public meeting under the Open Meetings Act").

    However, a public agency may not avoid the purpose of the Open Meetings Act by holding a series of meetings with less than a quorum of members at the meetings:

    Any series of less than quorum meetings, where the members attending one (1) or more of the meetings collectively constitute at least a quorum of the members of the public agency and where the meetings are held for the purpose of avoiding the requirements of subsection (1) of this section, shall be subject to the requirements of subsection (1) of this section. Nothing in this subsection shall be construed to prohibit discussions between individual members where the purpose of the discussions is to educate the members on specific issues.

    Ky. Rev. Stat. 61.810(2); see also 10-OMD-43 (finding Butler County Fiscal Court violated the Open Meetings Act by conducting a series of less than quorum meetings with the sheriff to discuss his proposed budget, under circumstances that manifested an intent to avoid the requirements of the Act.).

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  • Louisiana

    In the absence of a quorum, the gathering is not a “meeting” and is not subject to the Open Meeting Law. La. Rev. Stat. Ann. § 42: 13(2) and (4), 42:5(A); Op. Att'y Gen. 93-414.

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  • Maine

    The word “quorum” does not appear in the Act.  Some bodies have taken the position that a public body may meet in private so long as a quorum is not present, but this position is contrary to the intent and spirit of the Act.  The term “quorum” is not mentioned in the Act.

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  • Maryland

    If there is no quorum, then the body has not “met” under the provisions of the Act, and the Act does not, therefore, apply. OMA Manual, at 1-7. A meeting consisting of less than a quorum may be subject to the Act if an intent to circumvent the Act can be proved. § 3-103(a)(2).

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  • Montana

    If there is no quorum then the “meeting” is not subject to the open meetings law unless the agency is clearly intending to avoid scrutiny under the act.

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  • Nevada

    To have a meeting, a quorum of the members of a public body must be present. NRS 241.015(5).

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  • New Hampshire

    The absence of a quorum would mean that the public body had not convened a meeting.

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  • New Jersey

    The Act will not be triggered unless the failure to have a quorum was the result of a failure to invite for the purpose of circumventing the Act.

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  • New Mexico

    A resolution, rule, regulation, ordinance, or action violating the Act's procedures may be invalidated.  NMSA 1978 § 10-15-3(A).

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  • North Carolina

    The absence of a quorum means the meeting is not “official,” and the Open Meetings Law requirements do not attach.

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  • North Dakota

    For the open meetings law to apply, either a quorum must be present or the members attending one or more smaller gatherings collectively must constitute a quorum and must hold the gathering for the purpose of avoiding the requirements of the open meetings law. N.D.C.C. § 44-04-17.1(9).

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  • Ohio

    The absence of a quorum (majority of the members of a public body) ordinarily means that no right of public access attaches. However, where a public body prearranges back-to-back, repetitive sessions of less than a majority at each session, but with a majority present when all sessions are considered together, the repetitive subquorum sessions are treated as a "meeting" and must be open to the public. State ex rel. Cincinnati Post v. City of Cincinnati, 76 Ohio St. 3d 540, 668 N.E.2d 903 (1996).

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  • Oklahoma

    No meeting of the public body can take place unless a majority of the members is present. Id.

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  • Oregon

     

    The absence of a quorum means that there is no “meeting” under the Public Meetings Law. As a general matter, the law’s requirement for a “meeting” to be open would not apply in such instances.

    However, it is possible for a quorum of a governing body to “meet in private,” in violation of ORS 192.630(2), even without there being a “meeting,” as defined in ORS 192.610(5) and subject to ORS 192.630(1). In Tri-Cty. Metro. Transp. Dist. of Oregon TriMet v. Amalgamated Transit Union Local 757, 362 Or. 484, 488 (2018), the Supreme Court confronted a situation in which a public body, TriMet, asserted that it had delegated labor negotiations to a negotiating team, which TriMet conceded to be a governing body, but that TriMet had established no quorum requirement for the governing body. TriMet argued that absent such a quorum requirement, the team’s negotiations would not constitute a “meeting” under ORS 192.610(5). The Court explained that a “meeting” and “to meet in private” are separate concepts under the Public Records Law, and that an agency cannot “shield deliberations and decisions on a given matter from public scrutiny simply by delegating authority over those deliberations and decisions to a governing body and failing to specify a quorum requirement for the governing body to act.” 362 Or. at 497.

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  • Rhode Island

    Although the OML does not specifically address this issue, the Rhode Island Supreme Court ruled that the OML did not apply to town solicitor's informal meeting with two zoning board members, since this was not the convening of a meeting of a public body as envisioned by the OML, no quorum was present, and no public business was transacted.  Fischer v. Zoning Bd. of Town of Charlestown, 723 A.2d 294 (R.I. 1999).

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  • South Carolina

    Under the act there can be no meeting without a quorum. Most governmental bodies have operational rules that provide that no business may be conducted in the absence of a quorum. S.C. Code Ann. § 30-4-20(d).

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  • South Dakota

    A meeting would not be official in the absence of a quorum.

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  • Tennessee

    A quorum is necessary for a decision or deliberation toward a decision. T.C.A. § 8-44-102(b)(2). However, a quorum is not required for there to be a meeting within the meaning of the Act.

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  • Texas

    If a quorum is not present, no public business may be transacted. See Tex. Gov’t Code§ 551.101; see also Cox Enter. Inc. v. Bd. of Trustees of Austin Indep. Sch. Dist., 706 S.W.2d 956 (Tex. 1986); but see Hispanic Educ. Comm. v. Houston Indep. Sch. Dist., 886 F. Supp. 606, 610 (S.D. Tex. 1994) (where no quorum was present and there was no attempt to “take action,” the informal discussions were not “meetings of the board,” and there was no violation of the Act).

    Although Section 551.001(4)’s definition of “meeting” discusses “a deliberation between a quorum of a governmental body,” the Attorney General has advised that subcommittees including even a single member of a governmental body may be subject to the Act if the subcommittee discusses public business or policy over which the parent body has supervision or control. Tex. Att’y Gen. Op. No. JM-1072 (1989). Also, some courts have found that “the Act would apply to meetings of groups of less than a quorum where a quorum or more of the body attempted to avoid the purposes of the Act by deliberately meeting in groups of less than a quorum in closed sessions to discuss and/or deliberate public business, and then ratifying their actions as a quorum in a subsequent public meeting.” Esperanza Peace & Justice Ctr. v. City of San Antonio, 316 F. Supp. 2d 433, 476 (W.D. Tex. 2001); United States v. City of Garland, Texas, 124 F. Supp. 2d 442, 446 & n.2 (N.D. Tex. 2000) (“Simply put, if there is no quorum, there is no meeting,” noting that “[m]embers of a governmental body, however, may not conspire to meet in numbers less than a quorum for the purpose of secret deliberations in violation of the [Act].”)

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  • Utah

    If a quorum is not present, the meeting is not subject to the Open Meetings Act unless the sub-quorum group constitutes an advisory body. See Utah Code § 52-4-103(9)(a).

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  • Vermont

    The Open Meeting Law defines a meeting as “a gathering of a quorum of the members of a public body for the purpose of discussing the business of the public body or for the purpose of taking action.”  1 V.S.A. § 310(3)(A).  Accordingly, in the absence of a quorum, the gathering would not constitute a “meeting” and the Open Meeting Law would not apply.  See Burch-Clay v. Taylor, 2015 VT 110, ¶ 20, 130 A.3d 180, 187 (Vt. 2015) (finding no violation of Open Meeting Law in the absence of a “meeting”); Negotiations Comm. of Caledonia Central Supervisory Union v. Caledonia Cent. Educ. Ass’n, 2018 VT 18, ¶ 33, 184 A.3d 236, 249 (Vt. 2018) (finding that collective bargaining negotiations did not constitute “meetings” and thus “fall outside the scope of the Open Meeting Law”).

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  • Virginia

    Unless a departure from the procedures in the Act is specifically authorized by law, no vote of any kind of the membership, or any part thereof, of a public body shall be taken to authorize the transaction of public business except in accordance with the Act.  This would necessarily include the quorum requirement.  Va. Code Ann. § 2.2-3710.A.

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  • Washington

    Where a quorum of the city council takes “action” (as defined in the statute) at a standing committee meeting, a meeting has occurred. Op.Atty.Gen.2010, No. 9, 2010 WL 4963127. Absent a quorum, the agency may take the position that no meeting can take place, but “serial meetings” in which the governing body seeks to avoid the OPMA by holding multiple meetings comprised of less than a quorum are likely impermissible.

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  • West Virginia

    The absence of a quorum at a meeting has the effect of preventing the public agency from either deliberating toward or making a decision but does not affect whether the provisions of the Open Meetings Act apply.

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  • Wyoming

    No "meeting" would exist under the Act. "Meeting" is defined as an assembly where "action is taken." Wyo. Stat. § 16-4-402(a)(iii). "Action" means the transaction of official business. Wyo. Stat. § 16-4-402(a)(I). Official business generally cannot be carried on without a quorum, so no meeting takes place without a quorum. However, sequential communications among the members of a governing body cannot used to circumvent the requirements of the Act.  Text messages or emails are an example of sequential communications that can constitute a meeting even though a quorum is not gathered in one place.

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