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Open Meetings:Legislatures State by state analysis of whether open-meeting statutes apply to the state Legislature. (Source: Reporters Committee for Freedom of the Press ‘Open Government Guide’) Alabama All boards, bodies, and commissions, and all multimember governing bodies of departments, agencies, institutions, and instrumentalities of the legislative department of the state or its political subdivisions or municipalities are covered by the Alabama Open Meetings Act. The former open meetings law was specifically applied to the following legislative bodies: a. Alabama House and Senate. Ala. Constitution of 1901, art. IV, § 57. b. Alabama House Committee. 165 Op. Att'y Gen. Ala. 23 (Nov. 17, 1976) ("legislative committee meetings . must be open . to the public"); 224 Op. Att'y Gen. Ala. 38 (Aug. 22, 1991). c. Alabama Lieutenant Governor and Ex Officio President of the Alabama Senate. Birmingham News Co. v. Folsom, CV 88-1591 G (Cir. Ct. of Montgomery County, Ala., Nov. 30, 1989) (meetings with members of Alabama Senate). d. Public corporation to which legislative functions are delegated. Birmingham News Co. v. Birmingham Racing Commission, CV 87-501-622 MC at 4 (Cir. Ct. of Jefferson County, Ala., Equity Div., Aug. 28, 1987) ("The Commission, having both legislative and judicial functions, falls within the scope of § 13A-14-2."). Alaska Meetings of legislative bodies are covered by the Open Meetings Act, with the exception of the Alaska Legislature, which is expressly excepted from coverage of the OMA. AS 44.62.310(h)(3). a. The state legislature. Meetings of the state legislature are public only to the extent provided for in guidelines for meetings of legislative bodies adopted by the legislature in AS 24.60.037, discussed in more detail below, and even then, only to the extent that legislators choose to follow these guidelines. Until the 1994 revisions to the Open Meetings Act, the statute covered meetings of the state legislature. The Alaska Supreme Court had ruled, however, that courts could not enforce the OMA against the Alaska State Legislature, despite the statutory language covering the legislature, because of the "separation of powers" between the three branches of state government provided for in the Alaska Constitution. Abood v. League of Women Voters and Anchorage Daily News, 743 P.2d 333 (Alaska 1987). The Court held that two parts of the constitution require this result: The provision giving the legislature the sole authority over its own rules of procedure, and the provision giving legislators immunity from having to answer to the courts for things they say or do in the course of legislative business. The Court also declined to find that Alaskans have an implied constitutional right of access to meetings of their legislators. A constitutional amendment would be required to change the effect of the Abood ruling and impose enforceable "open meetings" requirements on state legislators. Since Alaska does not allow citizens to amend the constitution through ballot initiatives, such an amendment would require approval of two-thirds of both houses of the legislature, or a constitutional convention. After the court's Abood ruling, a coalition of press and public interest groups tried to get a legislative open meetings amendment on the ballot. These efforts were unsuccessful. However, pressure from the public and press finally led to enactment of ethics legislation in 1992 that included a requirement that the Alaska Legislature must generally comply with the OMA. AS 24.60.037. When the OMA was subsequently revised, in 1994, the legislature resolved the awkward discrepancy between the OMA's language, indicating the legislature was subject to the act, and the reality that this provision was unenforceable, by removing references in the OMA to coverage of the state legislature. When the state legislature removed any reference to itself from the OMA, it correspondingly changed a provision in the section of the state statutes dealing with standards of conduct for the Alaska legislature. Specifically, it changed the language stating that "legislators shall abide by AS 44.62.310-44.62.312 (Open Meetings Law)" to state that legislators shall abide "by open meetings principles." The practical effect of this is simply to make the language of the statute conform with the reality of the Abood decision. It eliminated any argument that the statute governing legislative conduct, in Title 24, literally required compliance with the provisions of the OMA, as such, potentially including but not limited to the provision voiding actions taken in violation of the OMA. It also eliminated the argument that legislators were still literally or technically violating the OMA, even though the courts had said that there was no remedy for these violations. The ethics law provisions dealing with legislative open meetings differ from the OMA in significant respects. First, the ethics law specifically allows closed caucuses, and "private, informal meetings or conversations between legislators in which political strategy is discussed." Second, the Select Committee on Legislative Ethics is charged with developing guidelines for the application of open meetings requirements to the legislature, and any complaint against a legislator for conduct found to be in compliance with these guidelines must be dismissed. Third, enforcement is strictly up to the Select Committee on Legislative Ethics, which includes both public and legislative members, and can conduct investigations and hearings regarding allegations of improper closed meetings pursuant to procedure spelled out in AS 26.60.170. The Committee makes recommendations to the full legislature if it finds a violation, and the legislature decides on the appropriate sanction by majority vote (except expulsion, which requires two thirds vote). AS 24.60.174 Violations of the open meetings guidelines specified in AS 24.60.037 and the guidelines adopted by the ethics committee pursuant to it are no more enforceable in a court than were the provisions of the OMA itself, for the reasons (the constitutional separation of powers doctrine) explained in Abood v. League of Women Voters. Any requirement of openness by legislators is dependent upon self-policing by the legislature (and public pressure). Interestingly, the legislature has specified that the Ethics Committee is subject to the OMA itself, AS 44.62.310-.312, but presumably this is no more enforceable than other requirements that the legislature comply with the OMA. Arizona The OML generally applies to the Legislature. A.R.S. § 38-431(6). But the OML does not apply to any “political caucus”—i.e., the consideration of party policy with respect to a particular legislative issue without reaching a collective decision, promise or commitment. A.R.S. § 38-431.08(A)(1). Attorney General Opinions conflict on this issue. Compare Ariz. Att’y Gen. Op. No. I90-013 (advisory committee appointed by Governor subject to OML) with Ariz. Att’y Gen. Op. No. I92-007 (advisory committee appointed by Governor not subject to OML). Conference committees of the legislature must be open to the public but need not follow the notice and minute requirements of the OML. A.R.S. § 38-431.08(A)(2). Arkansas The Attorney General has indicated that the General Assembly and its committees are subject to the FOIA. Ark. Op. Att’y Gen. No. 84-091. However, the Constitution expressly provides that “sessions of each house and of committees of the whole shall be open, unless when the business is such as ought to be kept secret.” Ark. Const. art. V, § 13. This provision is a broad exception to the FOIA, but applies only to both houses and to “committees of the whole” and thus apparently does not reach other legislative committees. See Ark. Op. Att’y Gen. No. 84-091. All meetings of the Legislative Council, a committee created by statute, “shall be open to the public, except in those instances in which the Council feels it is necessary to go into executive session.” Ark. Code Ann. § 10-3-305(a). Other legislative bodies, such as a city council and county quorum court, are clearly subject to the open meeting requirement. E.g., Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968) (city council). California State Legislature: Neither the Bagley-Keene Act nor the Brown Act apply to bodies of the State Legislature. However, separate open meeting laws for both houses of the California State Legislature can be found at Government Code Sections 9027-9031. The law requires that meetings of either house of the Legislature or any of their committees be open and public. Cal. Gov't Code § 9027. Whenever a meeting is required to be open, notice must be given in accordance with the Joint Rules of the Assembly and the Senate. Cal. Gov't Code § 9028. Closed sessions are permissible for the same reasons as set forth in the Bagley-Keene and Brown Acts, and also may be held for party caucuses and to consider matters affecting the safety and security of members of the Legislature and their employees. Cal. Gov't Code §§ 9029, 9029.5. Colorado Colorado Constitution Article V, § 14 provides that the sessions of both houses of the legislature and their committees "shall be open, unless when the business is such as ought to be kept secret." a. The Sunshine Law applies not only to the General Assembly, but also to meetings of any board, committee, or other policy-making or rule-making body of the General Assembly. Colo. Rev. Stat. § 24-6-402(1)(d). b. This includes legislative caucus meetings at which public business is discussed. Cole v. State, 673 P.2d 345 (Colo. 1983). c. Unless the legislature has expressly designated business which "ought to be kept secret" pursuant to § 14 of Article V of the state Constitution, it is presumed that all legislative and committee meetings are subject to the Open Meetings Act.
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