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Open Meetings Law
Louisiana’s Constitution provides in Art. XII, Section 3 that “no person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law.” A body of law known as the “open meetings law” was enacted by the Legislature and provided that,” It is essential to the maintenance of a democratic society that public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy….” That body of law, LSA-R.S. 42:11 through LSA-R.S. 42:28, by its own terms, must be construed liberally.
Right to Observe
Section 14 provides that every “meeting” of a “public body” shall be open to the public, except when closed according to law. Proxy voting and secret balloting are prohibited, as well as any other means that might circumvent the Open Meetings Law. Some public officers are, however, permitted by law to designate a representative to attend meetings. Prior to 1997, there was no citizen’s right provided in the law to participate in a public meeting other than a meeting of a local school board.
The Legislature, that year, enacted Section 15 to require school boards to provide for public comment prior to the board taking any action, and in 2001, La RS 42:14 (D) was enacted to require all public bodies to permit comment at a meeting of the public body. Now all municipal councils, police juries, in fact, all state and local bodies that meet the definition of “public body”, must allow comments at their meetings. The public body may, however, adopt “reasonable rules” to restrict public comment. Many public bodies have adopted rules that place a time limit on comments and require that comments must relate to items on the agenda for that specific meeting.
There are only three definitions in the public meeting law, that of public body, meeting and quorum.
LSA-R.S. 42:13 (A)(2) defines a “public body” to mean all state or local governing bodies, boards, commissions or authorities, and their committees and sub-committees that have policymaking, advisory, or administrative functions. If a public body authorizes or appoints a citizens’ advisory committee, that committee is also subject to the Open Meetings Law even if the committee has no member of the main public body on that committee.
La RS 42:13(A)(1) defines a “meeting” as a convening of a “quorum” of a “public body” to deliberate, or to act, on a matter over which the body has supervision, control, jurisdiction or advisory power. Convening of a quorum of the public body solely to receive information regarding any matter over which the body has supervision, control, jurisdiction or advisory power is also a “meeting”.
Chance meetings or planned social gatherings of the members of a public body, at which no action, vote, or polling is taken, do not constitute public meetings. A “quorum” is defined as a simple majority of the membership of the public body. A simple majority is a number of members in excess of one half (½) of the public body’s total membership.
In order to facilitate the exercise of a person’s right to observe, the Legislature has established certain notice requirements so that the date, time, place and agenda of a meeting must be published. La RS 42:19 requires that where a regular meeting schedule is established by law, resolution or ordinance, the public body give written public notice of the dates, times and places of these scheduled meetings by publication in the public body’s official journal at the beginning of the calendar year. Notices of each meeting must also be given by posting a copy of the notice (date, time and place) and agenda at the principle office of the public body, or if no such office exists, at the place where the meeting is to be conducted, not less than 24 hours before the meeting, or by publication in the official journal. If media representatives have requested notice, they must be given personal notice of a meeting. If there is an extreme emergency, the public body may give notice that it deems appropriate and the circumstances permit, but in any event, it must give written notice to media representatives when requested to do so and in the same manner that public body members are notified of the meeting.
In 2008, La. R.S. 42:7 was amended regarding amending the agenda. To amend an agenda, you must have unanimous approval of the members present. Anything added to the agenda must be identified with "reasonable specificity" and the description entered into the minutes. Prior to a vote on anything that is added to the agenda, you must allow an opportunity for public comment.
Citizen’s Advisory committees which do not receive per diem do not have to give notices of meetings or prepare minutes; however their meetings are otherwise subject to the Open Meetings Law, and the parent public body of such committees must give the appropriate notice of such committee meetings by posting the notice or by publication in the public body’s official journal.
If a public body plans to discuss a matter in executive session (excluding the public) that pertains to prospective litigation, or actual pending litigation, the notice of the meeting shall so indicate. If litigation is to be discussed, the court, case number and parties must be listed in the notice. If prospective litigation is to be discussed, the potential parties and subject matter of the claim must be indicated in the notice. Also, if a public body plans to discuss the character, competence, or health of a person, that person must be given notice, that the public body plans to discuss him and the person may require a public discussion.
Conduct of Meetings
No law specifies what rules of order must be followed in the conduct of meetings of public bodies; however, many public bodies adopt some form of parliamentary procedure such as “Roberts Rules of Order”. All votes must be “viva voce” which means “live voice” and the number of votes “for”, “against”, or not voting, must be recorded in the minutes of the public body which shall be public record. The use of electronic machines with each member’s vote being indicated, by red or green lights, or voting by a show of hands, technically complies with the viva voce vote requirement.
Before an executive or closed session may be held, there must be a formal motion made which is approved by 2/3 of the members present. Executive sessions are permitted for discussion only. The public body cannot take any poll, straw vote or final or binding action in Executive Session. The topics which may be discussed in Executive Session are:
- Discussion of the character, competence, physical health, or mental health of a person.
- Strategy on collective bargaining, prospective litigation and pending litigation.
- Security personnel, plans, or devices.
- Investigation of misconduct.
- Natural disasters, epidemic or civil disturbances.
- State Mineral Board meetings where records or matters entitled to confidential status are to be considered or discussed.
- Discussion between the school board and a student or the student’s parent; however, the student or parent may demand an open meeting.
- Civil service board meetings where there is discussion of test questions, answers, and papers produced and exhibited by the office of the state examiner, municipal fire and police civil service.
- Second Injury Board meetings where records or matters regarding the settlement of a workers’ compensation claim are required to be considered/discussed.
- Any other matters now provided for or that may be provided for by the legislature.
If a public body is engaging in discussions which relate to a person who is being considered for appointment to a public body, as for example filling a vacancy on a municipal council, school board or parish governing authority, the discussions may not be held in an executive session but have to be in an open meeting
Even though there are not any clear guidelines regarding matters protected as “privacy rights” a public body has a duty to discuss certain matters, protected by the right to privacy, in an executive session. For example there is a right of privacy regarding the personnel performance evaluation of public employees, and the courts have specifically protected this information from mandatory dissemination. If the performance evaluations of public employees are being discussed at a meeting of a public body it has the right to discuss in executive session and has the duty to discuss in executive session unless the right of privacy is waived by the person who was evaluated and by the supervisor who evaluated the public employee, because both have a privacy right expectation.
Open Public Meetings may be video or audio recorded, filmed or broadcast live, although the body may establish regulations relative to lighting or equipment placement to insure proper decorum.
All public bodies must keep written minutes consisting of:
- Date, time and place of meeting
- Members present or absent.
- Substance of all matters decided; and record or roll-call of the individual votes of members’ vote if a member requests such. This request would have to be made before the vote is taken to have an individual roll-call vote recorded in the minutes. A public body could also adopt a standing rule to provide for an entry in the minutes how each member votes.
- The individual roll-call vote on a motion to go into executive session always must be reported in the minutes, even without a member’s request.
- The minutes and audio or video tapes are public records and must be made available within a reasonable time after a meeting.
- Citizens’ Advisory Committees do not have to keep minutes.
Enforcement procedures are provided so that the Attorney General, a District Attorney or a citizen may file a civil suit to challenge an illegal meeting or to prevent future illegal meetings. Remedies may include one or more of the following:
- Mandamus to perform certain duties.
- Injunction against future violations.
- To declare action taken at an illegal meeting void.
- Impose civil penalties, up to $100/person/violation which would be the violator’s personal liability, which cannot be reimbursed.
- Punishment for contempt of court for violation of a prior court order or injunction.
- Obtain court costs and attorney fees.
The proper place to file an action relative to an open meetings violation is in the district court in the parish where the meeting took place, or is scheduled to take place. Enforcement proceedings are tried by preference and in a summary manner. Also appeals must be expedited by the appellate court.
If a plaintiff prevails in a suit, the court must award him court costs and attorney fees so that the public body or its members would be liable. If he prevails only in part, the court has discretion as to whether to award the fees in proportion to his success.
If the attempted enforcement litigation is frivolous, the court may impose attorney fees on the party who filed suit. Any action by a public body that resulted from an illegal meeting is not void, but may be declared void if a suit is filed not later than 60 days after the meeting. If no suit is filed before 60 days the action is valid and not subject to being nullified by the court. A 1999 amendment to the Open Meetings Law now requires all public bodies to post a copy of the entire Open Meetings Law at the place of the meeting.