The Open Meetings Act is a federal law that governs the conduct of meetings for public bodies in the United States. It requires meetings of government bodies to be open to the public, with certain exceptions for confidentiality.
One thing to understand about “open meetings” is that they are not what most people understand to be open. Open meetings mean that a public meeting is required to be open to public observation. While many entities have a “public comment” period, for the most part members of the audience may not participate in the deliberations of the board without express invitation by the board.
In California, Governor Gavin Newsom recently addressed disruptions to public board meetings with provisions for removal of members of the public that interrupt board deliberations. Fear of violence toward public officials prompted this new stipulation.
Open meeting laws may also be referred to as "Sunshine Laws," meaning that the business of the board is to be conducted “in the sunshine,” or in the open so that the public may attend. While each state has its own laws, at the federal level, open meeting laws culminated in the Freedom of Information Act, or FOIA, as it is often called.
State laws requiring open meetings include Florida’s Government-in-the-Sunshine Law, New Jersey’s Senator Byron M. Baer Open Public Meetings Act, and the very first Sunshine Law enacted in 1898, the Utah Open and Public Meetings Act. Many open meetings provisions were enacted or strengthened in the wake of Watergate, when much of the country became cynical about the misuse of public resources by government officials.
The Covid-19 pandemic also had an impact on open meeting laws, because they had to be replaced by the executive action of each governor to allow for virtual meetings. As these executive orders expired, most sunshine laws, such as New York’s, were revised to retain a provision requiring video access.
All fifty states now have some form of Sunshine Law; while the provisions vary from state to state, the central premise is that citizens have a right to know how and when decisions are made on their behalf.
With the current trend of politicization creeping into local boards, the need for total transparency is at an all-time high. Of course, when matters require confidentiality, the law permits certain exceptions to be discussed in an executive or closed session, with votes allowed once the open session has reconvened.
What Do Sunshine Laws Mean for Publicly Elected Boards?
Open meeting laws may vary slightly from state to state. However, they all include some basic tenets:
- Definition of a meeting: Open meeting laws define a meeting as "any gathering of a majority of the members of a legislative body for the purpose of discussing or taking action on any matter within the jurisdiction of the legislative body." Most open meeting laws now include reference to “serial meetings,” or meetings conducted by phone, electronic communications, or via personal intermediaries. In California, the law even addresses reactions to social media posts. Digital communication has changed the landscape for sunshine laws.
- Notice requirements: Sunshine laws require agendas for regular meetings to be posted in advance and provide specific guidelines for how and where the agenda must be posted. Times may range from 24 hours in Pennsylvania to 72 hours in states like California and Texas; states have varying notice requirements, such as advance notice period or different posting requirements — most now include electronic posting.
- Public comment: Most open meeting laws require that each regular meeting include a time for members of the public to comment on any item of interest to the public. State laws differ with regard to whether the item must pertain to an item listed on the agenda.
- Executive sessions: Open meeting laws provide specific circumstances under which a legislative body can hold an executive session, which is a closed meeting not open to the public. The circumstances for holding an executive session typically have to do with security, confidentiality of student or staff records, or conferring with the board’s attorney.
- Public records: The act provides for access to local agency records and provides guidelines for retention of those records.
The purpose of these requirements is to provide members of the public with adequate notice and information about the subjects that will be discussed at the meeting, allowing the public to attend and participate or listen to deliberations if they choose.
Technology: A Key Tool in Open Meeting Compliance
Web-based meeting management software — such as BoardDocs, iCompass and Community by Diligent — help organizations comply with sunshine laws.
These laws require that public meetings be conducted in an open and transparent manner, and board management software provides several features to help organizations meet these requirements, including:
- Agenda management: BoardDocs, iCompass and Community allow organizations to publish meeting agendas online, providing members of the public with easy access to information about the topics that will be discussed at the meeting.
- Notice requirements: BoardDocs helps organizations meet the notice requirements of the Brown Act by automatically posting agendas and meeting materials online at least 72 hours before the meeting, and by providing embedded email notifications for efficient distribution.
- Linking a featured meeting to your website allows for direct access where agendas can be searched or downloaded by an interested party.
- Board announcements made through a board portal are a good way to avoid open meeting violations because there is no way to inadvertently reply to all. While a non-elected official may “push” information to elected members of a board, the board members cannot use these forums for discussions of district business. Even a single reply can be problematic since these emails can be forwarded to other members.
- Public comment: Web-based board management software provides a platform that can easily be linked to a form for members of the public to submit comments and questions ahead of the meeting, making it easier for organizations to facilitate public participation.
- Minutes and recordkeeping: Board portals provide a secure and easily accessible archive of meeting minutes, ensuring that the public has access to the official record of the meeting.
- Accessibility: Diligent software is designed to be accessible to people with disabilities, which helps organizations comply with accessibility requirements under the Americans with Disabilities Act (ADA) and Section 508 of the Rehabilitation Act.
By providing these features, Diligent helps organizations meet the requirements of the sunshine laws and promote transparency, accountability, and public participation in their meetings.
Open Meetings Build Public Trust
While Sunshine Laws can seem tedious, it is important to remember they stem from a need for the public to be informed of the transactions of public business.
At the heart of governance work is a representative form of government. Maintaining the community's trust is essential to the leadership and good governance that make a representative government work.
While penalties for breaking open meeting provisions can range from having actions voided to criminal penalties that can involve fines and/or jail time, the real danger of operating in secret is the loss of public trust.
Sunshine laws lend credibility to the governance process and enhance openness and integrity in the management of institutions through a diffusion of information. As a board member, always act with the public’s best interest in mind, so you can lead the way to a culture of accountability and trust.
NOTE: Laws vary from state to state, and this document is not intended to serve as legal advice. Always consult your board’s attorney for clarification of legal questions.