Violating the Open Meeting Law
(Part 3 in a 3-part series)

The Open Meeting Law holds a public body (the Law's term for any board or commission subject to its provisions) responsible for complying with a sizable list of requirements. Whether it be the timeliness of meeting notices, the contents of an agenda, or the preparation of minutes, the Law's mandates are unequivocal.

For those occasions, however, when a public body is--for whatever reason--unable to comply with any of those mandates, the Open Meeting Law provides various avenues for the public body to bring itself back in conformity with the statute.

Actual Emergency

In the case of an "actual emergency," for example, when a public body is unable to post a notice of a meeting no less than twenty-four hours before that meeting is to begin, the law allows the public body to hold the meeting "upon such notice as is appropriate to the circumstances." Within twenty-four hours after such an emergency meeting, though, the public body must post a notice advising that the meeting was held, as well as prepare an agenda of what was discussed.

Ratification Process

Otherwise, all action "transacted by any public body during a meeting held in violation of" the Open Meeting Law is "null and void." Under such circumstances, however, the Law allows a public body to correct the violation through a process called ratification.

The public body ratifies the prior violation through a meeting, and the meeting must be preceded by a notice. The notice for a meeting where the ratification will occur, however, must include "a description of the action to be ratified, a clear statement that the public body proposes to ratify a prior action and information on how the public may obtain a detailed written description of the action to be ratified."

The public must also be offered a separate "detailed written description of the action to be ratified and all deliberations, consultations and decisions by members of the public body that preceded and related to such action." This description is included in the minutes subsequently prepared for the meeting.

Both the advance notice and detailed written description must be made available at least seventy-two hours before the ratification meeting.

While the ratification process is generally available to correct any previous activity that did not comply with the Open Meeting Law, a ratification of a prior violation must take place within thirty days after such violation was, or should have been, discovered.

Violation Penalties

Both a county attorney and the attorney general may commence a suit against a public body "for the purpose of requiring compliance with, or the prevention of violations of" the Open Meeting Law. In such an action, a court may impose a civil fine of up to $500, as well as other appropriate relief, in the event a violation is found.

If the court finds that a public officer has intentionally violated the Open Meeting Law, it may remove that person from office and must assess the officer "with all of the costs and attorney fees" awarded the party bringing the action. Moreover, should the public body be the subject of a lawsuit under the Open Meeting Law, it may not "expend public monies to employ or retain legal counsel to provide legal services . . .."

Published in the Winter 1999 Edition of In Brief