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D. What constitutes a meeting subject to the law

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  • Arizona

    “All meetings” of public bodies, including “deliberations and proceedings,” are subject to the OML.  A.R.S. § 38-431.01(A).  But “a communication with the media that may [subsequently] reach a quorum of the board’s members is not a ‘gathering’ of the public body, and, for that reason, it is not a meeting.”  Ariz. Att’y Gen. Op. No. I07-013.

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  • Arkansas

    The FOIA does not apply to meetings, functions, or events attended by members of a particular governing body and over which they have no control. E.g., Ark. Op. Att’y Gen. No. 94-131 (an arbitration hearing attended by members of a school board is not a meeting for FOIA purposes, since it is not subject to the board’s control).

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  • California

    Under the Bagley-Keene Act meetings "include any congregation of a majority of the members of a state body at the same time and place to hear, discuss or deliberate upon any item that is within the subject matter jurisdiction of the state body to which it pertains." Cal. Gov't Code § 11122.5(a).

    Similarly, the Brown Act defines "meetings" as "any congregation of a majority of the members of a legislative body at the same time and location, including teleconference locations as permitted by Section 54953, to hear, discuss, deliberate, or take action on any item that is within the subject matter jurisdiction of the legislative body." Cal. Gov't Code § 54952.2(a).

    The Brown Act extends to a legislative body's "informal sessions or conferences," even if no vote is taken. Sacramento Newspaper Guild v. Sacramento County Bd. of Supervisors, 263 Cal. App. 2d 41, 51, 69 Cal. Rptr. 480 (1968) (superseded by statute on the issue of attorney-client privilege). The Brown Act includes "deliberation as well as action" because "deliberation and action [are] dual components of the collective decision-making process" and "the meeting concept cannot be split off and confined to one component only[.]" Id. at 47. The court held that when the Sacramento County Board of Supervisors attended an Elks Club luncheon and discussed a county workers' strike with staff members, labor leaders and staff attorneys, the Board held a "meeting" in violation of the action, even though it did not take any formal vote. Id. See also Frazer v. Dixon Unified School District, 18 Cal. App. 4th 781, 794, 22 Cal. Rptr. 2d 641 (1993) (a "meeting" under the Brown Act includes "not only collective decision making, but also the collective acquisition and exchange of facts preliminary to the ultimate decision). A pre-meeting briefing session held by a city council with the city manager, assistant city manager, city attorney and planning director is a "meeting" subject to the open meeting requirements. 42 Ops. Cal. Att'y Gen. 61 (1963).

    However, the attendance of the majority of the members of a legislative body at the following gatherings does not constitute a meeting provided that a majority of the members do not discuss, other than as part of the scheduled program or meeting, business of a specific nature within the subject matter jurisdiction of the local agency: (1) individual contacts or conversations between members of a legislative body and any other person that do not violate other provisions, (2) a conference, (3) an open and publicized meeting organized to address a topic of local community concern, (4) an open and noticed meeting of another body of the local agency or of a legislative body at another local agency, (5) a purely social or ceremonial occasion, or (5) an open and noticed meeting of a standing committee of that body, as observers. Cal. Gov't Code § 54952.2(c). Attendance at a standing committee as observers means that majority members may not ask questions, make statements, or sit at the table with the committee members. 81 Ops. Cal. Att'y Gen. 156 (1998).

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  • Connecticut

    FOIA defines a "meeting" as: "any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power." Conn. Gen. Stat. §1-200(2). Some types of meetings or gatherings are specifically excluded from the definition of "meeting" contained in FOIA and are thus not subject to FOIA, including, for example, personnel search committee meetings, chance or social meetings, and collective bargaining sessions. In Smith v. FOIC, 2009 Conn. Super. LEXIS 2671 (2009), the court held that a director of library services was an "executive level employment position" and that the exemption in Conn. Gen. Stat. §1-200(2) and (7) properly applied to the personnel search committee in issue.

    In State Bd. of Labor Relations v. FOIC, 244 Conn. 487, 709 A.2d 1129 (1998), the court found that Conn. Gen. Stat. §31-100 exempts grievance arbitration proceedings from the open meeting requirements. In Windham v. FOIC, 48 Conn. App. 529, 711 A.2d 741, cert. granted, 245 Conn. 913, 718 A.2d 18, appeal dismissed, 249 Conn. 291, 732 A.2d 752 (1999), the Appellate Court held that a gathering of four selectmen of an eleven-member board to discuss whether to go into executive session at a scheduled meeting was not a meeting under FOIA because there was no quorum. In Emergency Medical Servs. Comm'n v. FOIC, 19 Conn. App. 352, 561 A.2d 981 (1989), the Appellate Court held that the presence of a quorum is not a prerequisite to there being a "hearing or other proceeding of a public agency" under Conn. Gen. Stat. §1-200(2). See Meetings Outline at II.A.2.a. for discussion of these "non-meetings."

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  • Delaware

    A "meeting" is defined as a formal or informal gathering of a quorum of the members of any public body for the purposes of discussing or taking action on public business. 29 Del. C. § 10002(b). The "public body" is a defined term. 29 Del. C. § 10002(c). The Act also defines "public business" as any matter over which the public body has supervision, control, jurisdiction or advisory power." 29 Del. C. § 10002(e). See, e.g., Del. Op. Att'y Gen., No. 01-ib13 (Aug. 9, 2001) (deciding a discussion of a waste transfer facility was a matter of "public business," subject to the open meeting laws); Del. Op. Att'y Gen., No. 02-ib07 (Mar. 22, 2002) (informal luncheon with members of Sussex County Council and private organization was a "meeting" subject to the FOIA laws and, as such, minutes should have been prepared). See also Del. Op. Att’y Gen., No. 18-ib23 (May 4, 2018) (council members’ “serial meetings” with a consultant were not a violation because they did not involve a quorum); Del. Op. Att’y Gen., No 18-ib07 (Feb. 9, 2018) (council press conference was not a meeting).

    Meetings must be held in a room “reasonably” able to accommodate those who wish to attend. Del. Op. Att’y Gen., No. 14-ib03 (June 16, 2014).

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  • District of Columbia

    The Open Meetings Act defines a meeting as "any gathering of a quorum of the members of a public body, including hearings and roundtables, whether formal or informal, regular, special, or emergency, at which the members consider, conduct, or advise on public business, including gathering information, taking testimony, discussing, deliberating, recommending, and voting, regardless of whether held in person, by telephone, electronically, or by other means of communication." D.C. Code Ann. § 2-574(1).  A public body is "any government council, including the Council of the District of Columbia, board, commission, or similar entity, including a board of directors of an instrumentality, a board which supervises or controls an agency, or an advisory body that takes official action by the vote of its members convened for such purpose."  Id. § 2-574(3).  Section 2-574(3) also lists several bodies that do not fall within the definition of "public body" and thus are exempt from the open meetings requirements:

    (A) A District agency or instrumentality (other than the board which supervises or controls an agency or the board of directors of an instrumentality);

    (B) The District of Columbia courts;

    (C) Governing bodies of individual public charter schools;

    (D) The Mayor's cabinet;

    (E) The professional or administrative staff of public bodies when they meet outside the presence of a quorum of those bodies; or

    (F) Advisory Neighborhood Commissions; provided, that this subchapter shall not affect the requirements set forth in § 1-309.11.

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  • Georgia

    The Act defines a “meeting” as the gathering of a quorum of the members of a governing body of an agency or any of its committees at which any official business, policy or public matter of the agency is formulated, presented, discussed or voted upon.  O.C.G.A. § 50-14-1(a)(3)(A).

    As long as not done to evade the Act and no official business is to discussed or action taken, the Act provides that it is not a “meeting” subject to the Act if an agency or one of its committees gathers together to inspect physical facilities or property of the agency, to travel to a meeting or to attend social, ceremonial, civic or religious events.  § 50-14-1(a)(3)(B)(i), (iv)-(v).

    As long as not done to evade the Act and no official action is be taken, the Act also provides that it is not a “meeting” subject to the Act if an agency or one of its committees gathers together to attend statewide, multijurisdictional or regional meetings or seminars or to meet with state or federal officials at those officials’ offices.  § 50-14-1(a)(3)(B)(ii)-(iii).

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  • Iowa

    A “meeting” under Iowa Code § 21.2(2) encompasses all gatherings, formal or informal, where a majority of the members deliberate or take action within the scope of their policy-making duties.  See Op. Atty. Gen. (Pellett) May 16, 1979. In Hutchison v. Shull, the Iowa Supreme Court held that a meeting can occur even if a majority of the board or council members are not physically or electronically present if instead, a majority of the board members are present either personally or through an agent. 878 N.W.2d 221, 234 (Iowa 2016). The requirements of open meetings law applies if the majority of board or council members gather either in-person, electronically, or through agents to deliberate any matter within the scope of its policy-making duties. Id.

    Iowa Code § 21.2(3) defines “open session” as a meeting “to which all members of the public have access.”  A closed meeting thus is one where members of the public are excluded from a gathering of a majority of a board or committee where the acts or duties of the members involve discussion and evaluative processes in reaching a decision.  See Op. Atty. Gen. (Pellett) May 16, 1979.  A closed session is any meeting of a government body to which a member of the public is denied access.  See Op. Atty. Gen (Dooley), October 2, 1979.

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  • Kentucky

    A meeting is defined as "all gatherings of every kind, including video teleconferences, regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting." Ky. Rev. Stat. 61.805(1).

    "For a meeting to take place within the meaning of the Act, public business must be discussed or action must be taken by the agency. Public business is not simply any discussion between two officials and the agency. Public business is the discussion of the various alternatives to a given issue about which the Board has the option to take action." Yeoman v. Commonwealth of Kentucky, Health Policy Board, 983 S.W.2d 459, 474 (Ky. 1998).

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  • Michigan

    When a quorum of the members of a public body meet to consider and discuss public business, it is a “meeting” within meaning of Open Meetings Act (OMA). Nicholas v. Meridian Charter Tp. Bd., 239 Mich.App. 525, 609 N.W.2d 574 (2000). However, a chance gathering of members of public body, during which members do not engage in deliberations or render decisions, is not a “meeting,” and thus is not subject to requirements of the OMA. Ryant v. Cleveland Township, 239 Mich.App. 430, 608 N.W.2d 101 (2000). Even email exchanges involving a quorum of members where not every member responds (seemingly not participating) may constitute a “meeting” so long as there is a “deliberation.” Markel v Mackley, No. 327617, 2016 WL 6495941, at *1 (Mich Ct App November 1, 2016).

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  • New Hampshire

    Generally.  RSA 91-A:2,I defines a "meeting" as "the convening of a quorum of the membership of a public body, as defined in RSA 91-A:1-a,VI, or a majority of the members of such body if the rules of that body define "quorum'' as more than a majority of its members, whether in person, by means of telephone or electronic communication, or in any other manner such that all participating members are able to communicate with each other contemporaneously, subject to the provisions set forth in RSA 91-A:2, III, for the purpose of discussing or acting upon a matter or matters over which the public body has supervision, control, jurisdiction, or advisory power. A chance, social, or other encounter not convened for the purpose of discussing or acting upon such matters shall not constitute a meeting if no decisions are made regarding such matters."

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  • New Jersey

    In order to constitute a meeting subject to the provisions of OPMA, there must be a "gathering," either in person or by means of communications equipment, which is open to all members of the public body and which is held with the intent to discuss or act on specific public business. N.J.S.A. 10:4-8b. Typical partisan caucus meetings and chance encounters of members of public bodies are not intended to be covered by OPMA. Introductory Statement, Assembly No. 1030, L.1975, c.231. A meeting does not include any such gathering (1) attended by less than an effective majority of the members of a public body, or (2) attended by or open to all the members of three or more similar public bodies at a convention or similar gathering.  N.J.S.A. 10:4-8b.

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  • North Carolina

    The law covers all “official meetings” of public bodies. An official meeting is defined as “a meeting, assembly, or gathering together at any time or place or the simultaneous communication by conference telephone or other electronic means of a majority of the members of a public body for the purpose of conducting hearings, participating in deliberations, or voting upon or otherwise transacting the public business within the jurisdiction, real or apparent, of the public body.” G.S. § 143-318.10(d).

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  • North Dakota

    The law defines a “meeting” as a formal or informal gathering or a work session, whether in person or through electronic means such as telephone or videoconference. N.D.C.C. § 44-04-17.1(9). A meeting does not include a chance or social gathering at which public business is not considered; emergency operations during a disaster or emergency if a quorum of the members of the governing body are present but are not discussing public business as the full governing body or as a task force or working group; or the attendance of members of a governing body at meetings of any national, regional, or state association to which the public entity, the governing body, or individual members belong. N.D.C.C. § 44-04-17.1(9).

    As applied to the legislative assembly, “meeting” means any gathering subject to section 14 of article IV of the Constitution of North Dakota, which states, “All sessions of the legislative assembly, including the committee of the whole and meetings of legislative committees, must be open and public.” N.D.C.C. § 44-04-17.1(9).

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  • Ohio

    (This section is blank. See the subpoints below.)

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  • Rhode Island

    The OML defines “meeting” as “the convening of a public body to discuss and/or act upon a matter over which the public body has supervision, control, jurisdiction, or advisory power.” Expressly included as public meetings are “so-called ‘workshop,’ ‘working,’ or ‘work’ sessions.” R.I. Gen. Laws § 42-46-2.

    The Attorney General has interpreted the OML to apply to any “gripe session” at which members of the public express concerns and criticisms to a public body and no votes are taken. See Op. Att’y Gen. No. 90-12-41 (December 4, 1990), 1990 WL 487204.  A meeting at which the electorate of a town may vote, such as a Financial Town Meeting, is subject to the OML and members of the general public may not be excluded. See Op. Att’y Gen. No. 91-06-12 (July 3, 1991), 1991 WL 498710.

    The Attorney General has interpreted the OML to apply whenever any gathering, whether formal or casual, of two or more members of the same public body to discuss any matter in which action will be taken by the public body.  See Op. Att’y Gen. No. 92-06-09 (June 5, 1992), 1992 WL 478161.

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  • South Dakota

    SDCL §1-25-1 does not define "meeting."

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  • Tennessee

    The Act defines meeting as "the convening of a governing body of a public body for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter." T.C.A. § 8-44-102(C)(2).

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  • Utah

    “Meeting” is defined in the Open Meetings Act as “the convening of a public body or a specified body, with a quorum present, including a workshop or an executive session, whether in person or by means of electronic communications, for the purpose of discussing, receiving comments from the public about, or acting upon a matter over which the public body or specific body has jurisdiction or advisory power.” Utah Code § 52-4-103(6)(a). “Meeting” does not mean a chance meeting, a social meeting, or the convening of a public body that has both legislative and executive responsibilities (such as most county commissions) where no public funds are appropriated for expenditure during the time in which the public body is convened and: (i) the public body is convened solely for the discussion or implementation of administrative or operational matters for which no formal action by the public body is required; or (ii) the public body is convened solely for the discussion or implementation of administrative or operational matters that would not come before the public body for discussion or action. Id. § 52-4-103(6)(b)-(c).

    “Convening” is defined in the Open Meetings Act as “the calling of a meeting of a public body by a person authorized to do so for the express purpose of discussing or acting upon a subject over which that public body has jurisdiction or advisory power.” Id. § 52-4-103(3). In other words, so-called “informal” or “executive” meetings are subject to the Open Meetings Act, unless they are exempt from the definition of a “meeting” under Utah Code section 52-4-103(6)(b).

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  • Virginia

    "Meetings" is defined as "the meetings including work sessions, when sitting physically, or through telephonic or video equipment pursuant to § 2.2-3708 or 2.2-3708.1, as a body or entity, or as an informal assemblage of (i) as many as three members, or (ii) a quorum, if less than three, of the constituent membership . . . of any public body." Va. Code Ann. § 2.2-3701.

    Members-elect do not count toward the number necessary to constitute a meeting under the VFOIA. See Beck v. Shelton, 267 Va. 482, 488, 593 S.E.2d 195, 198 (2004).

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  • West Virginia

    What constitutes a meeting was extensively addressed by the West Virginia Supreme Court of Appeals in McComas v. Fayette County Board of Education, 197 W. Va. 88, 475 S.E.2d 280 (1996). In that case, persons opposed to a county plan for school consolidations challenged a gathering of four of the five members of the county board of education. In holding it was a meeting and thus subject to the state's Open Meetings Act, the court was not persuaded that those attending did not plan on the others showing up, that no formalities were followed, that no votes were taken or resolutions adopted, or that no one voiced an opinion on the proposed plans.

    The 1999 amendments to the Open Meetings Act, however, modified the statutory definition. The amendment of that definition was prompted, in part, by adverse reaction to the court's holding in McComas. The amendment provides:

    "Meeting," means the convening of a governing body of a public agency for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter that results in an official action. Meetings may be held by telephone conference or other electronic means. The term meeting does not include:

    (A) Any meeting for the purpose of making an adjudicatory decision in any quasi-judicial, administrative or court of claims proceeding;

    (B) Any on-site inspection of any project or program;

    (C) Any political party caucus;

    (D) General discussions among members of a governing body on issues of interest to the public when held in a planned or unplanned social, educational, training, informal, ceremonial or similar setting, without intent to conduct public business even if a quorum is present and public business is discussed but there is no intention for the discussion to lead to an official action; or

    (E) Discussions by members of a governing body on logistical and procedural methods to schedule and regulate a meeting.

    W. Va. Code § 6-9A-2 (4).

    The 1999 amendments to the Act added subsection (4) (D) to the list of activities that do not fall within the definition of "meeting." Moreover, those amendments added a definition of the term "official action" which bears on the meaning of subsection (4) (D). "'Official action' means action taken by virtue of power granted by law, ordinance, policy, rule, or by virtue of the office held."

    While the amended definition of "meeting" and the new definition of "official action" offer explicit additional legislative guidance as to the scope of the term, the extent to which the amendment modifies the court's holding in McComas is not at all clear. It seems obvious, at least, that the new definition narrows the potential breadth of the court ruling insofar as it relates to application of the Act to discussions between public officials in informal settings. There has not yet been a judicial opinion interpreting the amended term.

    In Foundation for Living v. The Cabell-Huntington Board of Health, 214 W. Va. 818, 591 S.E.2d 744 (2003) a lower court finding of fact that a meeting held by the Cabell-Huntington Board of Health to discuss a proposed non-smoking ordinance was for educational purposes and did not violate the open meetings act was upheld by the Supreme Court. The meeting at issue fell within the exception for "general discussions among members of a governing body on issues of interest to the public when held in a planned or unplanned . . . educational, training . . . or similar setting, without intent to conduct public business even if a quorum is present and public business is discussed but there is no intention for the discussion to lead to official action . . . " W. Va. Code § 6-9A-2(4)(D).

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