Enforcement

The Law

All provisions of the Open Meetings Act shall be enforced by the attorney general or by the district attorney in the county of jurisdiction. However, nothing in that act shall prevent an individual from independently applying for enforcement through the district courts, provided that the individual first provides written notice of the claimed violation to the public body and that the public body has denied or not acted on the claim within fifteen days of receiving it. A public meeting held to address a claimed violation of the Open Meetings Act shall include a summary of comments made at the meeting at which the claimed violation occurred.

Commentary
This Subsection charges the Attorney General and district attorneys with the concurrent duty of enforcing the Act. Since enforcement carries with it the duty to interpret the Act, the Attorney General has issued this Compliance Guide so that public bodies that adhere to the interpretations of the Act presented in this Guide may conduct their affairs in substantial compliance with the Act. Of course, such a guide cannot anticipate all problems or questions that will arise in the course of governmental affairs. Questions raised by a public body about compliance should therefore be initially addressed to the attorney for the public body. If the public body’s attorney is unclear about how to proceed, questions may then be addressed to the Office of the Attorney General. It is, however, the Attorney General’s intent that this Guide help resolve recurring questions concerning the applicability of the Act. 

A person who believes the Act has been violated may report the suspected violation in writing to the appropriate district attorney or to this Office for investigation and suitable action. The complaint should specify in detail the circumstances giving rise to the alleged violation, including dates and the persons involved. The Attorney General’s enforcement power will not be used, however, to resolve the internal disputes and disagreements of a public body or public displeasure with a body’s exercise of its discretionary authority. 

The Attorney General will exercise discretion when considering whether or not to void actions of public bodies and to bring misdemeanor charges for alleged violations of the Act. Unintentional failure to comply with the provisions of the Act may render the actions taken invalid, but will not necessarily lead to prosecution. It is the intent of the Attorney General to prosecute misdemeanors only in the case of knowing and either flagrant or repeated violations of the requirements of the Act. The Attorney General will not prosecute where there has been a good faith attempt to comply with the Act. 

Example 84:
A city council’s notice resolution provides that it shall give public notice of all regular meetings by publication in the local newspaper as well as by posting notice on the three bulletin boards in City Hall. Following an open meeting at which a controversial zoning variance was granted and at which several hundred people appeared to express their views, an opponent of the variance determines that the notice of the meeting, while properly published, was posted on only two bulletin boards. The individual requests that the Attorney General declare the variance invalid and prosecute the city councilors. The Attorney General investigates and determines that the failure to post the notice on the third bulletin board was inadvertent and that the public was adequately notified of the meeting. The Attorney General, within his discretion, declines to declare the council’s action invalid or to prosecute the city councilors. 

Commentary
In most cases, if a violation is found, the Attorney General will enforce the Act by first advising the public body that, in his opinion, the actions taken at a particular meeting of the public body were not in compliance with the Act and are consequently not valid. Unless the violation was part of a pattern or practice of Open Meetings Act violations, the public body would then be advised to begin again and to consider the intended actions in accordance with the provisions of the Act. This could involve re-discussing issues previously addressed as well as voting again on matters previously voted on in violation of the Act. Should the public body, after such notification, refuse to reconsider its actions in a proper manner or otherwise indicate its intention to continue violating the Act, the Attorney General may file criminal charges or take other action against the public body or those persons allegedly in violation of the Act. 

Example 85:
The board of regents of a state educational institution meets in closed session with its attorney pursuant to Section 10-15-1(H)(7) of the Act and takes final action to adopt regulations affecting the student body. The student council reports this action to the Attorney General who finds that there was no threatened or pending litigation discussed. The meeting should not have been closed. The Attorney General notifies the regents of these findings and advises them to suspend the regulations and reconsider them in an open session where representatives of the student body may attend and listen to the discussion. The regents comply with this advice and no prosecution is initiated.

Example 86
Two members of a local school board want to replace the superintendent and three members want to retain him. The board members discuss the question of the superintendent’s contract in a properly called closed session and the final action to renew the superintendent’s contract is taken by vote in open session. The two dissenting members now want to invalidate the renewal, and report a violation of the Act alleging that the other three members discussed budgetary matters as well as the superintendent’s contract in closed session. They demand an investigation by the Attorney General. If it turns out that the budgetary matters discussed necessarily related to the superintendent’s contract, the Attorney General would not involve his Office in this manner to participate in a dispute between factions of a board. 

Commentary
As an alternative to seeking a legal remedy  through the Attorney General or district attorneys, Section 10-15-3(B) of the Act permits any individual to apply for enforcement in the district court. Before an individual initiates a lawsuit against a public body for a violation of the Act:

• the individual must provide the public body with written notice of the claimed violation; and
• the public body must have denied or failed to act on the claimed violation within fifteen (15) days of receiving the notice. 

The Act does not specify the procedure for providing written notice of an alleged violation to a public body. To avoid confusion about whether or not a public body received the required written notice, an individual might mail the notice to one or more members of the public body, or to other officials representing the public body who can reasonably be expected to alert the public body about the claim. It is only after the public body denies the allegation or fails to act on the alleged violation within fifteen days of receiving the written notice that an individual may go to district court to file legal action. 

Example 87:
A county citizen writes to the Office of the Attorney General complaining that the county commission violated the Act by holding a secret meeting to discuss economic development within the county. In her complaint, the citizen states that she discussed the violation with the county manager in a telephone conversation. Two days after writing to the Office of the Attorney General, the citizen files a lawsuit in district court against the county commission based on the same claimed violation. The lawsuit is not proper unless, prior to filing it, the citizen also gave the county commission written notice of the claimed violation and the county commission denied or failed to address the violation within fifteen days of receiving the  notice. The notice to the county manager would not be considered sufficient to meet the requirements of the Act because it was verbal rather than written.

Commentary
A public body that receives written notice of a claimed violation has fifteen days from the day it receives the notice to cure the violation if the public body decides the claim is valid and wants to avoid a lawsuit. At a meeting held to address the claimed violation, the public body must include a summary of the comments that were made at the meeting where the violation occurred. This does not mean that the public body must necessarily repeat the entire previous meeting. It only needs to summarize the portion or portions of the previous meeting that violated the Act. 

Example 88:
A state licensing board holds its regular meeting in May. The meeting is properly noticed and the agenda for the meeting is available to the public seventy-two (72) hours in advance of the meeting. During the meeting, the board votes to award a contract for a hearing officer. 

A few days later, Mr. Grey writes to the chair of the board alleging that the contract award was invalid because it was not listed on the meeting agenda. The chair determines that Mr. Grey is correct and schedules a special meeting of the board within fifteen days of receiving Mr. Grey’s letter. Proper notice of the meeting is provided to the public and the contract is listed on the agenda. At the meeting, the board repeats its discussion of the contract and votes again to award the contract. This action cures the board’s previous violation and precludes any further action concerning the violation in district court. 

Example 89:
A town board of trustees holds a meeting without providing any advance notice to the public. A resident of the town notifies the mayor in writing about the violation. Because the board of trustees failed to give prior notice of the meeting, the meeting is invalid and without effect. Within fifteen days after receiving the written notice, the board must, after providing proper notice to the public, convene again, summarize all the comments and proposals made at the previous illegal meeting, and take any action or make any decisions made at the previous meeting over again. 

Commentary
In some cases, a violation of the Act cannot be effectively addressed by repeating the action at a properly conducted open meeting. In those cases, the requirement for a summary of comments is not applicable. 

Example 90:
Ms. Rose writes to the chair of the county commission alleging the commission violated the Act because it did not approve the minutes for its May meeting at the next meeting of a quorum as required by Section 10-15-1(G) of the Act. The commission holds a meeting within fifteen days after receiving the notification to address the claimed violation. In this case, the commission agrees that it violated the Act, but because the violation did not occur at the May meeting, the commission cannot cure it by re-taking any action or summarizing any discussion. Instead, it agrees that in the future it will use its best efforts to ensure that minutes are approved at the next meeting of a quorum. Ms. Rose is satisfied with this resolution of her claim. 

Commentary
Because the Attorney General and district attorneys cannot be everywhere and resources are limited, private individuals who exercise the option provided under Section 10-15-3(B) of the Act and initiate legal action often will be able to obtain more effective and efficient enforcement of the Act. However, while the power to bring private enforcement actions is important, it is not a means to overturn decisions of a public body made in conformity with the Act, but with which the public disagrees.

Example 91:
A local school board meets in closed session to discuss retaining Mr. Jones as the superintendent. After this discussion, the board reconvenes in open session and takes final action to hire Mr. Jones at a higher salary. Many parents disagree and, after following the procedures specified in Section 10- 15-3(B) of the Act, seek an injunction in district court to stop the contract. As the parents’ complaint does not involve any violation of the Act, they have not correctly applied Section 10-15- 3(B). Therefore, the court rejects their application for injunctive relief.