State Policy on Open Meetings

The Law

In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them. The formation of public policy or the conduct of business by vote shall not be conducted in closed meetings. All meetings of any public body except the legislature and the courts shall be public meetings, and all persons so desiring shall be permitted to attend and listen to the deliberations and proceedings. Reasonable efforts shall be made to accommodate the use of audio and video recording devices.

Commentary
This Subsection states the basic open meetings policy of the state. The Act generally prohibits a public body from conducting public business in secret or in closed meetings and requires that such business be conducted by the public body acting as a whole at meetings open to all persons who wish to attend and listen.

The Act requires members of a public body to conduct business in public and to allow all persons desiring to attend and listen to the proceedings. These requirements effectively preclude the members of a public body from conferring privately during meetings by passing notes, sending emails and texts or other means.

Unless a public body cannot reasonably do so, it must permit members of the public attending its meetings to record or video tape the proceedings. The Act does not require a public body to allow members of the public to speak at its meetings.

Example 1:
A county manager needs the immediate approval of the board of county commissioners before executing a contract and calls the commissioners individually by telephone to secure such approval. Such a telephone poll as a substitute for official board action violates the intent of the Act. However, the board may avoid such hazards if it discusses the anticipated contract at a properly convened meeting and delegates to the county manager, its chief administrative officer, the authority to execute in the board’s name. The county manager is not absolutely precluded from telephoning individual commissioners. The telephone poll is improper in this example because it is used to secure the approval of or final action by the board outside of an open meeting.

Example 2:
The city council is contemplating an ordinance adopting an 11:00 p.m. curfew for all persons under 18 years of age. Hundreds of residents attend the first meeting on the ordinance, carrying placards for and against it. The audience becomes loud and agitated and the local police remove several people for making threats against the council. The meeting lasts until 2:15 a.m. At the next meeting on the ordinance, the council limits presentations to those persons whose remarks are submitted to the council five days in advance of the meeting and places a five minute limit on such remarks.

Such restrictions are permitted. The Act requires only that persons be permitted to “attend and listen.” An open public meeting is not necessarily an open forum and, so long as the Act is complied with, public bodies may limit or not allow public debate and may take steps necessary to maintain public order.

Commentary
The courts and the legislature are excluded from the provisions of the Act that apply to other public bodies. Provisions of the Act specifically applicable to the legislature are discussed in Section IV.

Example 3:
The Disciplinary Board established by the State Supreme Court to investigate attorney misconduct holds a meeting to discuss hearing procedures. Because the Board is established by the Supreme Court and is an agency of the court, it is not subject to the Act under the express exemption for courts. Although exempt from the Act’s coverage, the Supreme Court is free to promulgate regulations covering whether and when the Board’s meetings are open to the public and requirements for public notice if it so chooses.

Commentary
As a policy statement, Subsection A generally sets forth the spirit or intent of The Law and serves as the guiding principle to be followed in applying the particular provisions of the Act. Where a situation is not specifically covered by the Act, doubt as to the proper course of action should be resolved in favor of openness whenever possible. Compliance with the Act is not just a matter of adhering to the Act’s specific requirements, but contemplates a more flexible obligation of public bodies to open their deliberations to public scrutiny.