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Guide to Utah’s Open and Public Meetings Act
The purpose and clearly stated intent of Utah’s Open and Public Meetings Act (Utah Code 52-4-101 et sec) is to ensure that
actions of the state are conducted openly and that the people’s business is done in full view of the
WHAT IS THE “STATE” OR “PUBLIC BODY?”
The state acts through various public bodies and all public bodies must abide by the Open and Public Meetings Act. A public body is any administrative, advisory, executive, or legislative body. This includes state agencies as well as political subdivisions, such as counties, cities, towns, or service districts. In addition, a public body must be made up of two or more persons who deal with money from taxes and who have the authority to make decisions about the public’s business. Political parties, political groups, and political caucuses, as well as conference, rules, and sifting committees of the Utah State Legislature are not considered public bodies and do not have to abide by the requirements of the Act.
WHAT IS A “MEETING?”
A meeting is the convening of a public body to discuss or act on a matter over which it has power. A meeting can be done in person or by means of electronic communication.
A quorum is necessary for a meeting. A quorum is a simple majority of the membership of a public body. For example, if five people are on a board, three must be present for a quorum and a meeting.
Under the Act, the following are not considered meetings: two elected officials taking no official action; a chance meeting; a social meeting; or a convening of a public body in which no public funds are dealt with and there is only discussion of operational matters with no formal action taken.
WHEN CAN A PUBLIC MEETING LEGALLY BE CLOSED?
A meeting may be closed only if: 1) it is within one of the listed strict exemptions; 2) at the prior open meeting for which proper notice was given, two-thirds of the members of the public body present voted for a closed meeting, if a quorum was present; 3) the reasons for the closed meeting are put into the minutes; and 4) the members’ votes and names are listed.
Even then, no ordinance, resolution, rule, regulation, or contract can be approved in the closed meeting. Only discussion is allowed.
A closed meeting may only be held for the following purposes, any of which are limited to discussion about 1) the character/professional competence/health of a person; 2) strategies for collective bargaining; 3) pending or imminent litigation; 4) the price of real property; 5) security personnel or devices; or, 6) criminal misconduct allegations.
IS PUBLIC NOTICE OF MEETINGS REQUIRED?
Adequate notice of any meeting is necessary to ensure that the public has full opportunity to be heard and to participate in government. Public notices must state the agenda, date, time, and place of meetings. Regular annual meetings need only give public notice once a year. The absolute minimum notice required for any meeting is 24 hours. Public notice is a written posting at the office or building where the meeting will be held, as well as notice given to a local newspaper of general circulation or to a local media correspondent. Electronic notice can also be used in addition to printed notice.
WHAT CONSTITUTES AN EMERGENCY MEETING AND IS IT LEGAL?
It is legal for a public body to hold an emergency meeting, with reduced notice, because of unforeseen circumstances; however, the designation of a meeting as an emergency meeting is subject to review by courts, and is highly suspect. Even for an emergency meeting, “best notice practicable” is still necessary. At such a meeting, only emergency matters can be considered and the nature of the emergency must be stated in the minutes. There must also have been an attempt made to notify all the members of the public body who then voted to have an emergency meeting.
Courts have found that the following reasons were not sufficient to qualify for emergency meetings with reduced notice requirements: budget/financial crises; possible annexation of land by another public body; strikes; salary/insurance questions at year’s end; holding a meeting at another locale because of illness of the chair; an executive session to obtain an attorney’s advice; or even a snowstorm, which pushed ahead a meeting to fire an employee.
Courts have also ruled that one hour’s notice and a call to two papers was not enough notice; that emergencies are not issues that have been previously debated; and most important regarding notice: “substantial” compliance with notice is not sufficient, but “literal” compliance is required.
ARE MINUTES REQUIRED FOR OPEN OR CLOSED MEETINGS?
Written minutes and an audio recording are required for open meetings, except in two narrow circumstances described below.
Open meeting minutes must include the date, time, and place of the meeting; the names of members present and absent; the substance of matters discussed or decided; a record of votes; the name of each person who provided testimony and the substance in brief of their testimony; and any other information that any member requests be entered in the minutes or recording. The minutes and recording are considered “public records,” but only the minutes are the official record of an open meeting.
There are two situations in which written minutes or a recording must be kept of the open meeting (but not necessarily both). The first is when an open meeting is a site visit or a traveling tour, during which no vote or action has been taken by the public body. The second is when an open meeting is an independent special district (as defined by Title 17A, Special Districts) or a local district (as defined by Title 17B, Chapter 2, Local Districts), and that district’s annual budget, excluding capital expenditures and debt service, is $50,000 or less.
For closed meetings, an audio recording is required; however, written minutes are not required. The recording and minutes (if any) of a closed meeting must include the date, time, and place of the meeting; the names of members present and absent; and the names of all others present except where the disclosure would infringe on the confidentiality necessary to fulfill the original purpose of closing the meeting. A sworn statement is also necessary if the meeting has been closed for a discussion of an individual or security matters; written minutes or an audio recording is required if the meeting has been closed for any other purpose. Both recordings and minutes (if any) of closed meetings are considered “protected records” under Utah’s Government Records Access and Management Act (GRAMA).
ARE ELECTRONIC MEETINGS PERMISSIBLE? WHAT ABOUT PUBLIC ACCESS?
Electronic meetings by phone, computer, or telecommunication are permissible. The anchor location, or the place the meeting originates, must have posted written notice, and notice must be given to the newspaper and local media. Notice must also be given to members of the public body at least 24 hours before the meeting so they may participate. Also, there must be written guidelines regarding how members will be connected to the meeting and by what procedures. There must be an anchor location for the public in the normal meeting place.
Under the Act, two or more public body members telephoning one another does not constitute a legal open meeting, and therefore no public business can be legally accomplished through such a forum.
WHAT HAPPENS WHEN ACTION IS TAKEN THAT DOES NOT COMPLY WITH THE ACT?
Any action taken that is not in compliance with Utah’s Open and Public Meetings Act is challengeable in court. A lawsuit must be filed within 90 days after the date of the action, or 30 days after the date of the action if it concerns bonds or notes. Also, individuals who suspect that a violation of the Open and Public Meetings Act has occurred may want to contact the State Attorney General’s Office and/or the appropriate county attorney, both of whom have the authority to enforce the Act.