What is the Louisiana Open Meetings Law, and how does violating this law hurt your household with your disaster recovery?
Q: What is the Louisiana Open Meetings Law?
How does violating this law hurt your household with your disaster recovery?
A: The Open Meetings Law, found in R.S. 42:12 – 42:28, regulates meetings of public bodies.
The Open Meetings Law is meant to ensure that decisions by the government are made in an open forum. The Open Meetings Law operates in conjunction with Louisiana's Public Records Law to insure compliance with Article XII, Section 3 of the Louisiana Constitution's mandate 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." The Open Meetings Law is designed to ensure state integrity and to increase the public's trust and awareness of its governing officials.
Q: What is a public body? R.S. 42:13
A: A "public body" is a village, town, and city governing authority; parish governing authority; boards, such as school, port, or levee boards; any other state, parish, municipal, or special district boards, commissions, or authorities, as well as any of their political subdivisions if the body possesses policy making, advisory, or administrative functions. Any committee or subcommittee of any of these bodies is also a public body.
Specifically, any municipal government, state agency, or political subdivision that has a policy making, administrative, or advisory function is subject to the Open Meetings Law. The law also applies to any official committee of the public body that has been delegated any of these functions by the public body, or any unofficial committee or gathering of the body that consists of a quorum of the body.
AG Op. 10-0155 cites the LA Supreme Court's four factor test for determining an entity's status as public or private: (1) whether the entity was created by the legislature, (2) whether its powers were specifically defined by the legislature, (3) whether the property of the entity belongs to the public, and (4) whether the entity's functions are exclusively of a public character and performed solely for the public benefit [State v. Smith, 357 So.2d 505 (La.1978)]. For a court to determine that an entity is public, all four factors must be present.
Q: How should the Open Meetings Law be interpreted?
According to R.S. 42:12(A), the Open Meetings Law should be construed liberally. This means that if there is a question as to interpretation of a provision the entity should provide as much access/openness as possible. The Open Meetings Law operates with a general premise that all meetings of public bodies should be open to the public. The burden, therefore, is on the individual seeking to engage in closed meetings to prove that an exception applies allowing the closing of the meeting.
Q: What is a meeting?
A meeting is a convening of a quorum of a public body to deliberate or act on a matter that the public body has supervision, control, jurisdiction, or advisory power over. A meeting is also a convening of a quorum of a public body by the public body or a public official to receive information regarding a matter that the public body has supervision, control, jurisdiction, or advisory power over.
The Open Meetings Law does not apply to chance meetings or social gatherings of members of a public body at which there is no vote or other action taken, including formal or informal polling of the members.
If a gathering consists of a quorum of the body or a meeting of a committee of the body to conduct any business of the body, the gathering should be presumed to be a meeting and, thus, subject to the requirements of the Open Meetings Law.
Q: What is a Quorum? R.S. 42:13(A)(3)
The default definition of a quorum is a simple majority of the total membership of a public body. For example, for town council that has five (5) aldermen, three (3) members would constitute a quorum necessary to conduct business at a meeting. This default definition applies only in the absence of a statutorily defined quorum for the public body, which may be a greater or lesser percentage of the body. The Attorney General (AG) has stated in AG Op. No. 00-0144 that a public body cannot in its by-laws define a quorum as less than a majority of the total members. Such a by-law definition would abrogate the clearly stated definition in R.S. 42:13(A)(3). Absent a statutorily defined quorum for the body, the body's quorum must be a simple majority.
Vacant positions must be counted in determining a quorum and will not reduce the number of members required to be present to conduct business. AG. Op. No. 15-0172.
No official action may be undertaken by the body in the absence of a quorum of the body. A prohibited action, for example, could include debate on an item in the absence of a quorum, coupled with a vote without debate on the item in an open meeting. Members of the body, however, may engage in informal discussion of any matter in the absence of a quorum.
Meetings of public bodies are required to:
- have notice of the meeting at least 24 hours before the meeting via placement of a copy of the notice at the place of the meeting or at the body's official office;
- allow for some means of public comment; R.S. 42:14(D) requires each public body (except school boards) conducting a meeting that is subject to the notice requirement of R.S. 42:19(A), to allow a public comment period prior to action on an agenda item upon which a vote is to be taken.* The governing body may adopt reasonable rules and restrictions regarding this comment period;
- allow for recording of the meeting by the audience;
- record minutes of the proceedings; and
- have "open" meetings – that is, observable to the public with an opportunity for public participation. Public bodies may not close their meetings to the public absent narrowly defined exceptions.
A copy of the Open Meetings Law must also be posted at the location of the meeting.
*School boards are required to allow public comment before taking any vote. The comment period shall be for each agenda item and shall precede each agenda item. R.S . 42:15(A).
- The legal purpose of open meetings is to allow individuals to observe and participate in the deliberations of public bodies. Meetings of public bodies must be open to the public unless closed pursuant to a statutory exception, such as set forth in R.S. 42:16 – 42:18, which authorizes closed executive sessions. Public bodies must provide an opportunity for public comment prior to action on the agenda item upon which a vote is to be taken. The governing body may adopt reasonable rules and restrictions regarding the comment period.
- R.S. 42:14, requires each public body, except school boards, conducting a meeting that is subject to the notice requirement of R.S. 42:19(A), to allow a public comment period prior to action on an agenda item upon which a vote is to be taken.
- A similar obligation is imposed for school boards, except that public comment must occur prior to taking any vote and must occur before each topic and not at the beginning of the meeting. R.S. 42:15.
Q: What are the procedures to add to or delete items from an agenda? R.S. 42:19
Public bodies may adopt procedures for governing their meetings and providing how members may place items on the agenda, provided that such procedures comply with the timelines set forth in the notice provisions of the Open Meetings Law and applicable statutory or charter provisions for the introduction and passage of instruments (i.e. ordinances and resolutions).
To add items to an agenda at the meeting itself, the Open Meetings Law requires unanimous approval of the members present to add an item to the agenda. In no case may a public body, by ordinance, charter provision or policy, lessen this requirement to a majority vote. AG Op. No. 15-0122.
Any motion for a vote to add an item to the agenda shall include with reasonable specificity the subject matter of the additional agenda item and the purpose for adding the item to the agenda. Public comment on the motion must be allowed prior to any vote to add an item to the agenda.
R.S. 42:19, which sets forth the requirements for notice of meetings, states at (A)(1)(b)(ii) that the notice shall include the agenda. Furthermore, any matter proposed that is not on the agenda shall be identified with reasonable specificity in the motion to take up the matter not on the agenda, including the purpose for the addition to the agenda. The matter must also be entered into the minutes of the meeting. Prior to any vote by the public body on the motion to take up a matter not on the agenda, there must be an opportunity for public comment on the motion in accordance with R.S. 42:14 or 15. The public body shall not use its authority to take up a matter not on the agenda as a subterfuge to defeat the purposes of R.S. 42:12 through 23.
Unless required by ordinance, charter provision or adopted policy to the contrary, public entities may remove, table, or withdraw agenda items by a majority vote of those members present.
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