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How can I find out more about the open-meetings act in my state?

In 2001, the Reporters Committee for Freedom of the Press published the fourth edition of its “Tapping Officials’ Secrets,” a guide to each state’s open meetings and open records laws.

Can public officials violate state open-meetings laws by sending e-mails?

Yes, they can, but the answer may vary depending on the particular state law and on how simultaneous the e-mail communications are. A threshold issue under a state open-meeting law is how many members it takes communicating with each other before there is a “meeting.” Another key issue is whether the e-mail messaging concerns actual policy deliberating or decision-making, or whether the e-mails are merely conveying factual information back and forth. Another important issue is whether the government officials are e-mailing each other back and forth in simultaneous fashion. For example, the Virginia Supreme Court ruled in Beck v. Shelton (2004) that e-mailing between government officials could constitute a meeting and trigger the open-meetings law, but only if the e-mails were exchanged simultaneously, such as in a chat room or through instant messaging.

Do state open-meeting laws specifically address e-mail communications?

Some address the issue, and others are silent on it. It varies from state to state. For instance, Tennessee’s open-meetings law contains no provision dealing with e-mail. California law provides that government officials may not conduct meetings through e-mail. Colorado’s law, on the other hand, provides that “if elected officials use electronic mail to discuss pending legislation or other public business among themselves, the electronic mail shall be subject to the requirements of this section.”

What are open-meetings laws?

Open-meetings laws are based on the principle that the development of public policy should not be conducted in secrecy. Such laws generally require that government entities meet, deliberate and act in public view so that citizens can have an active voice in policymaking.

Aren’t open-meetings laws unconstitutional? After all, don’t they infringe upon the speech of the members of governing bodies?

State courts around the nation have consistently ruled against numerous plaintiffs’ claims that open-meetings laws are unconstitutional. A few examples of such rulings include:

  • In Tennessee, the courts have held that the Open Meetings Act, by requiring that any deliberation by a governing body toward an official decision must be conducted openly, does not infringe upon the free-speech rights of members of governing bodies and does not exercise a chilling effect upon free expression. Dorrier v. Dark, 537 S.W.2d 888 (1976).

  • In Texas, a federal judge upheld the state’s open-meetings law after several city government employees challenged the law. The plaintiffs claimed that the law was unconstitutionally vague and that it violated their freedom of speech because they were barred from discussing public issues in private. U.S. District Judge Robert Junell held that the plaintiffs “failed to show that the Texas Open Meetings Act is unconstitutionally vague … in all its applications.” Jim Todd, the state’s lead attorney in this case, said Junell’s ruling “preserves the status quo. … It preserves the protections that the [Open Meetings Act] provides to the public and avoids the danger of losing those protections.” Rangra v. Brown, U.S. Dist. LEXIS 85833, 2006 WL 3327634 (W.D. Tax., 2006).

    How do states deal with violations of open-meetings laws?

    Over the past few years various states have begun to tighten their open-meetings laws so that fewer violations will result. For example, on May 3, 2005, Gov. Tom Vilsack of Iowa signed into law a bill that strictly enforces the state’s open-meetings law. Under the previous law, a public official found guilty of violating the meetings statute three times in a single term could be removed from office. The new law lowered that number to two. Those who violate the law are subject to a simple misdemeanor (up to 30 days in jail and a maximum fine of $500). Also in Iowa, the state’s Web site hosts a calendar of all public meetings on the agenda, with links to provide citizens with background and supplemental information related to a particular issue.

    Also in 2005, South Dakota Gov. Mike Rounds signed into law S.B. 62, which created a commission made up of five state’s attorneys that could reprimand those who violate the state’s open-meetings law. As a result of this new panel, prosecutors could either file charges against violators or they could send a complaint to the commission for consideration. Violations of the meetings law can be punished with a fine up to $500 and up to 30 days in jail.

    It is rare for criminal charges to be filed for open-meetings violations because of prosecutors’ reluctance to charge elected officials. In May 2005 in Texas, however, prosecutors charged and a grand jury indicted a former school board president in Upshur County for “conspiring to circumvent the Texas Open Meetings Act.” (A jury later acquitted the official.) The same week of this indictment, Texas Gov. Rick Perry signed a bill that required public officials to enroll in a course about the state’s open-meetings law. Officials must take the course within 90 days of taking office.

    Many states and municipalities are now webcasting public meetings. Can they forbid reproduction of the meeting videos by members of the public?

    It appears that there are no restrictions on reproducing videos of public meetings.

    Are city councils and similar public bodies required to have periods for public comment at meetings?

    States take different approaches to allocating time for public comments at public meetings and courts across the country have provided some guidance on this issue. Most states do not expressly require, via statutes or legal precedent, time for public participation in public meetings, although it has become a customary practice to allow individuals to speak. Often in the case of school board meetings, members of the public are required to provide notice, or to register, with the board well before the meeting to be allowed to make a comment.

    The Florida Supreme Court has recognized that public comments in open meetings are important in maintaining an open government. The court has stated that government bodies “should not be allowed to deprive the public of this inalienable right to be present and to be heard at all deliberations wherein decisions affecting the public are being made.” Board of Public Instruction of Broward County v. Doan, 224 So. 2d 693,699 (Fla. 1969). Furthermore, the Florida Code expressly provides that members of the public have a right to participate in local government meetings regarding land use, but the comment time can be regulated by the decision-making body. Fla. Stat. § 286.0115(2)(b).

    California has a statute that requires public bodies to allow for public comments at meetings. Cal. Gov. Code § 54954.3(a). A California case provides legal precedent for when a public meeting is continued to a later date for some reason. In Chaffee v. San Francisco Library Commission, 115 Cal. Rptr. 3d 336 (Cal. App. 2004), a public meeting was continued to a later date after the meeting body lost its quorum to continue. A California citizen bought suit alleging that the state sunshine laws (or open-meeting laws) required public comments at every meeting of a public body, not just a comment section on each agenda. The California Court of Appeals in the 1st Appellate District held in favor of the public body by holding that public comments are mandated only once per agenda, not once per body meeting. Allowing for public comments at each meeting regarding the same meeting would cause a “surplusage,” the court said.

    Some states, such as Wyoming, statutorily make it a right of a public body to prevent willful disruption of a meeting by removing anyone causing a disruption or by taking a recess. Wyo. Stat. § 16-4-406.

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