North Carolina’s Open Meetings Law (OML) requires public bodies to conduct their business in public. Public bodies must notify the public of regularly scheduled, special and emergency meetings, must deliberate and vote in public, and must create a record of public business by keeping minutes.
When public officials meet in small groups to discuss public issues, they venture into legal gray area than can undermine public participation, transparency and the public trust. It may even break the law.
Whether a small group meeting amounts to an open meetings violation can be a close call. The answer largely depends on whether the small group meetings are designed to frustrate the OML’s purpose of preventing the transaction of public business behind closed doors.
Today, we take a look informal “check-in” meetings between members of public bodies and highlight some of the legal issues government officials should consider when conducting public business in small groups.
Generally, a public body can meet without giving notice or taking minutes as long as less than a majority is present. If a majority of the body meets without notice or taking minutes, a court can declare the meeting unlawful and nullify actions and votes wrongfully taken. However, North Carolina law allows public servants to meet informally without constantly meeting legal access requirements. The rules also don’t apply to meetings of the professional staff of public agencies or to purely social gatherings. The entire city council can attend your wedding as long as they don’t deliberate the merits of a municipal bond referendum over dinner. They should be dancing anyway.
Problems abound, however, when members of public bodies meet to discuss public business successively in small groups. If members meet privately back-to-back to discuss a common issue, they may be violating the OML. This is especially true if these meetings are followed by pro forma deliberations at a later public meeting where the body takes action without discussion.
Transparency advocates recently criticized the Asheville city council for conducting small group “check-in” sessions in the run-up to regularly scheduled meetings. The “check-ins” sometimes involve one-on-one discussions between members and briefings from city staff or the mayor (who is also a member of the council). These meetings lack the majority numbers that trigger the Open Meetings Law, but may amount to a fragmented, asynchronous meeting of the full body.
Whether check-in meetings violate the Open Meetings Law largely depends on the purpose or intent of the scheme. North Carolina law prohibits “informal assembly or gathering together of the members of a public body [when] called or held to evade the spirit and purposes” of the Open Meetings Law (NCGS 143-318.10). North Carolina’s appeals courts have not squarely addressed this scenario and the evidence required to prove intent to evade the OML likely varies from case to case.
“Check-in” meetings walk a dangerous line between proper informal meetings and improper assemblies intended to evade the law, especially where members share information through a common member of the body or staff member who serves as a go-between.
We recommend that public bodies seriously consider the costs to transparency and public accountability these meetings present. Officials should think about whether check-in meetings are actually more efficient than calling special or emergency meetings according to the OML. In many cases they may be less efficient than conducting open business.
Best practice remains for government officials to do the public’s business during regularly scheduled meetings and to use “check-ins” sparingly for ad hoc issues that arise between individual members. Systematic “check-ins” that perform an end-run around the Open Meetings Law threaten to undermine the law’s primary purpose, which is to ensure open access to public bodies’ deliberations and actions. Depending on the circumstances, such meetings may also violate the law. The benefits of check-in meetings may not be worth the risk of violations or damage to public trust.