The Town Crier - Legislative Backgrounder

This post is first in a series of blog posts to detail the amendments proposed in S-106, which amends the Open Public Meetings Act, and S-107, which amends the Open Public Records Act. 

Proposed legislation:

In the findings of S-106, the legislature declares that their intention under the Open Public Meetings Act (OPMA) is to have public bodies that are “organized by law and collectively empowered as a multi-member voting body to spend public funds or affect persons' rights” be subject to OPMA. It further states that “therefore, informal or purely advisory bodies with no effective authority are not covered, nor are groupings composed of a public official with subordinates or advisors, who are not empowered to act by vote such as a mayor or the Governor meeting with department heads or cabinet members…” S-107 amends the findings to include language that subcommittees of a public body “may be subject to certain of the act’s provisions that address adequate notice of meetings and records of meetings.”

S-106, section 2, creates a new definition of ‘subcommittees’ under the Open Public Meetings Act (OPMA). A ‘subcommittee’ is defined to mean “any subordinate committee of a public body, except of the Legislature, regardless of label, that is formally created by that body, comprised of two or more members, but less than a quorum, of the public body.”

Section 18 of S-106, requires that a public body must “determine for each subcommittee whether meetings of that subcommittee shall be open to the public.” For meetings that are open to the public there must be adequate notice of the meeting. However, “other requirements applicable to meetings of public bodies shall not apply to meetings of a subcommittee.” Any subcommittee that is open to the public may exclude the public only from that portion of the meeting that meets one of the existing exemptions under OPMA and they must adopt a resolution stating the reasonably specific subject to be discussed, the reasonably specific basis for excluding the public, and stating as precisely possible the time when and the circumstances under which the matter will be disclosed to the public.

Section 7 of S-106, requires subcommittees to prepare reports of their meetings, including any gathering that would otherwise be a meeting if it were open to the public. The subcommittee must file at least one quarterly report with the public body. The report must include a statement of the number of meetings held since the last report, the subcommittee members’ names, and a concise statement of the matters discussed. The report is available to the public in the same manner as minutes. If the subcommittee has given an oral report at a governing body meeting it is excused from providing a written report for that quarter. This provision does not apply to subcommittees of the legislature.

If the public body determines that the subcommittee is open to the public, the subcommittees will be required to provide adequate notice to hold a meeting (section 3 of the bill), subject to prohibition of electronic communications (section 7 of the bill), and subject to potential violations of OPMA (section 7 & 10 of the bill).

We would note the following:

• The bill also amends the requirements of adequate notice. The definition of adequate notice has been amended (section 2 of the bill) to mean “written advance notice of at least 48 hours, giving the time, date, location and agenda…., which notice shall accurately state whether formal action may or may not be taken.”  A notice is not considered as adequate unless it includes the estimate starting time for the beginning of the meeting from which the public is not excluded.
• The bill also amends the term “agenda” (section 2 of the bill) to mean the “list of all items of business to be discussed or voted on at a public meeting…” including each individual item to be discussed or acted upon, and a brief description, as well as identify the names of the parties and approximate dollar amounts of any contracts, including employment contracts and collective bargaining agreements.  Please note for collective bargaining agreements, the agenda will need to list the number, but not the names, of the employees covered by such agreement.
• The bill prohibits a public body from taking action on a matter unless it is listed on the agenda. (section 2 of the bill). An item can be added to the agenda at the meeting as long as a majority present approves the addition as necessary to deal with a matter of such urgency and importance that a delay for the purpose of providing adequate notice would be likely to result in substantial harm to the public interest. The minutes will have to reflect why the matter was not on the agenda. (section 2 of the bill) Please note, that the legislature may add an item on its agenda at any time.

We note the following concerns:

• The new requirements under the bill can undermine the subcommittee process by requiring the governing body to determine if a subcommittee is open to the public. The governing body will be forced to defend why subcommittee A is open to the public and subcommittee B is not.
• Depending on the nature of the subcommittee discussions it could lead to confusion and misinformation.
• Subcommittees are advisory by their very nature – they do not expend public funds or make binding decisions  - that authority remains with the governing body .
• We are concerned, that while not the intent of the bill, municipalities will be sued because they made a policy decision not to make a subcommittee open to the public, but that policy decision was not based on the exceptions to open meetings under the law.

Although the League of Municipalities is a strong proponent of openness and transparency in government, we must continue to oppose both S-106 and S-107 as neither bill addresses the expenses municipalities currently incur and will incur under the new provisions.  Currently complying with the Open Public Records Act (OPRA), municipalities hire additional staff, incur increasing legal expenses to ensure compliance, and expend funds defending litigation based on existing Government Record Council (GRC) and conflicting case law.  In addition, some of the new provisions, especially under the Open Public Meetings Act (OPMA), establish bureaucratic processes for public meetings without consideration for operations or meeting the needs of our residents.