Research Memo

06 RM 009 Date: March 29, 2006

Authors: Don Richards, Senior Research Analyst

Re: Open Meetings Acts: Application to State Legislatures

Request: Summarize policy considerations relating to the exemption of the Wyoming Legislature from the open meetings law, W.S. 16-4-401 et seq. Response: The Wyoming Legislature and Judiciary are specifically exempt from the open meetings law which applies to other agencies of Wyoming state and local governments. More importantly, this exemption is a legislative policy choice. While no direct justification could be identified by LSO Research staff in the historical record, at least two broad justifications might be subsumed from observation and external materials. These can be broadly classified as (i) legislative self-direction and privilege protection under common law and the federal and state constitutional speech and debate clause and (ii) recognition of practical and administrative expediency. In fairness, these justifications could be judged against broad arguments for engaging in the public's business in an open and responsive environment.

BACKGROUND – PUBLIC MEETINGS LAW Wyoming's Public Meetings Law (W.S. 16-4-401 through 408) was originally adopted in 1973. Original Senate File 71, Government Meetings Public, was sponsored Senator Wallop. Since it was sponsored by an individual and not a committee, limited legislative record or debate is available on the law. Although the introduced draft was amended on the floors of both the Senate and the House, no successful amendment spoke to the exemption of the act to the State Legislature (or the Judiciary). Nonetheless, at least two subsequent Attorney General's opinions on this Act1 state that the law was patterned after a California statute and noted its similarity to a Florida statute.2 A review of the language of those statutes today indicates that neither explicitly excluded the state legislature (or the judiciary) like the Wyoming law. However, the definitions used ("board or commission of any state agency" or "legislative body" of a "local agency") are not the same as "agency" as defined in the Wyoming statute and appear to have the same effect as the Wyoming law. The Public Meetings Act, in its current, amended form, broadly provides for the following: 9 Defines important terms including action, agency, and meeting; 9 Requires openness; 9 Provides the requirements of minute preparation and rights and responsibilities of attendees;

1 Opinion 73-17, August 3, 1973 and Opinion 75-04, June 12, 1975 2 Cal. Gov't Code § 54950 -54961 and 11120, et seq and Fla. Stat. 286.001 et seq.

9 Identifies types of meetings (e.g., regular, special, and emergency) and articulates the notice required; 9 Outlines criteria under which executive session, not open to the public, may be held; and 9 Provides for penalty for violation of the Act.3 With respect to violations and remedies, W.S. 16-4-403(a) states, "Action taken at a meeting not in conformity with this act is null and void and not merely voidable." (emphasis added) Further, W.S. 16-4-408, added in 2005, provides for a penalty of $750 upon conviction of knowingly and willfully violating the Act.

Its restricted application to the Wyoming Legislature (and the Judiciary) can be found in the definition of "agency" within the act. W.S. 16-4-402(a)(ii) states that: “Agency” means any authority, bureau, board, commission, committee, or subagency of the state, a county, a municipality or other political subdivision which is created by or pursuant to the Wyoming constitution, statute or ordinance, other than the state legislature and the judiciary;

Further, a 1975 Attorney General opinion clarifies the application of the Act to the Legislature, by responding to the question, "Does the exemption for the legislature also apply to the legislative committees?" The Attorney General's response is provided below: The definition of "agency" specifically excludes from coverage "courts and the legislature". The Legislature is obviously a collective body consisting not only of the House of Representatives and the Senate, but also of the committees of each of those houses and various interim committees, some of which are joint in nature. The exemption for the Legislature is only meaningful if it applies to these committees, both while the Legislature is in session and during the interim periods, when in the performance of the legislative functions with which they have been vested. See, State ex rel. Hamblen v. Yelle, 29 Wn. 2d 68, 185 P.2d 723 (1947); State ex rel. Robinson v. Fluent, 30 Wn. 2d 194, 191 P.2d 241 (1947). We therefore conclude that such legislative committees are exempt from the purview of the statute. On the other hand, there are certain other committees which consist of both legislators and nonlegislators and which perform administrative or executive rather than legislative functions. Such committees cannot, in our judgment, be regarded as a part of the legislature merely because composed, in part, of legislators; therefore, they do not fall within the ambit of the exemption.4

BACKGROUND – REQUIREMENTS OF THE LEGISLATURE Although the Legislature is not included under the purview of the Public Meetings Act, the Wyoming Constitution, House and Senate Rules, Wyoming's Manual of Legislative Procedure, Management Council Policies, Wyoming statute, and Mason's Manual of Legislative Procedure offer requirements and guidance as to the openness and operation of legislative meetings. A summary of these provisions follows:

3 This list is merely intended as a summary of major requirements of the Public Meetings Act. It is not, nor is it meant to be, exhaustive. The text of the relevant provisions can be found at W.S. 16-4-401 through 408. 4 Wyoming Attorney General's Office, Opinion 73-17, August 3, 1973, Question (5).

To begin, the time and place of the Legislative session is clearly identified in the Constitution. Article 3, Section 7, Wyoming Constitution Time and place of sessions. (a) The legislature shall meet at the seat of government at twelve o'clock noon, on the second Tuesday of January of the odd-numbered years for general and budget session and may meet on the second Tuesday of January of the even-numbered years for budget session, and at other times when convened by the governor or upon call of the legislature as herein provided. The governor by proclamation may also, in times of war or grave emergency by law defined, temporarily convene the legislature at a place or places other than the seat of government…

With some exception, the Constitution also requires the sessions to be open. Article 3, Section 14, Wyoming Constitution Sessions to be open. The sessions of each house and the committee of the whole shall be open unless the business is such as requires secrecy.

The Constitution provides for self-determination in the establishment of the rules in each body. Article 3, Section 12, Wyoming Constitution Rules, punishment and protection. Each house shall have power to determine the rules of its proceedings…and shall have all other powers necessary to the legislature of a free state.

The Constitution provides for a "speech and debate clause" similar to that found in the U.S. Constitution. Article 3, Section 16, Wyoming Constitution Privilege of members. The members of the legislature shall, in all cases, except treason, felony, violation of their oath of office and breach of the peace, be privileged from arrest during their attendance at the sessions of their respective houses, and in going to and returning from the same; and for any speech or debate in either house they shall not be questioned in any other place.

Several rules also require open meetings and specify the authority for calling an executive session. Senate Rule 7-3(d) and 24-3 (duplicative) All standing committee meetings shall be considered open meetings except when declared to be an executive session by the standing committee chairman.

House Rule 4-3(c) All committee meetings will be open to the public unless declared an executive session by the chairman.

Joint Rules of the House and Senate 16-1 (a) Except for the following designated records, no written document in the possession of a standing committee and no minutes or other record purporting to reflect an action or recommendation of a standing committee shall be deemed to be an official record of the Wyoming Legislature: (1) Standing committee reports; (2) Record of votes reported pursuant to Senate Rule 7-3; (3) Rulings by the Senate Rules and Procedure committee under Senate Rule 23-1; (4) Reports of recommendations on governor's appointments required by Senate Rule 25-3; (5) Other written records reflecting formal committee action or recommendation which are approved and signed by the committee chairman and which are reported to the full body of the House or Senate and are made a part of the journal. (b) Except as provided by subsection (a) of this section, all other documents and records developed by presented to, or in the possession of, a standing committee during a Legislative session are deemed to be unofficial temporary working papers of the standing committee and shall not be preserved as an official record of the Wyoming Legislature following adjournment of the session.

Joint Rules of the House and Senate 17-1 (a) Subject to subsection (b) of this section, the standard rules for joint interim committees, attached as Appendix "A" to the Joint Rules of the House and Senate, shall be the rules of each joint interim committee of the Legislature. (b) Subsection (a) of this section shall not apply to a joint interim committee which adopts alternative rules at its first regularly scheduled meeting following adjournment of the general session. [Note: The Appendix A referred to in this Rule is provided as Attachment A to this memo. In addition to requirements of setting a time and place of meeting, making "reasonable efforts" to give prior notice of all subjects to be acted upon, and requiring approval of the minutes, the sample rules require written notice of 15 days prior to the meeting unless waived by members. As a matter of practice, very few interim committees adopt alternative rules. The same Appendix is provided for in the Wyoming Manual of Legislative Procedures.]

Management Council policies provide for notice of meetings. Management Council Policies II-10. Public meetings; Executive Sessions. Meetings of the Management Council or the joint interim committees will be open and public; provided the chairman of the meeting may call an executive session and exclude therefrom all persons except those whose presence is requested by the chairman. All minutes of meetings and records of the Management Council or the joint interim committees shall be open and public.

Management Council Policies II-12. Notice of Council Meetings. Written notice of meetings of the Management Council shall be given at least fifteen (15) days in advance of the meeting; provided this requirement may be waived by unanimous consent of the Management Council. Attendance at any meeting constitutes a waiver of written notice.

Management Council Policies II-13. Notice of Committee Meetings. Joint interim committees shall give at least fifteen (15) days prior notice of all meetings except subcommittee meetings. Attendance at any meeting constitutes a waiver of written notice.

Statutory language reinforces the openness of meetings and specifically speaks to open budget hearings. W.S. 28-1-113. Joint meetings of legislative standing committees; introduction and passage of budget bill. (a) The standing committees of the house of representatives and of the senate being in charge of the appropriation measures shall sit jointly in open sessions while considering the budget and shall begin joint meetings not less than twenty (20) days prior to the convening of the budget session... (b) All persons interested in the estimates under consideration shall be admitted to the meetings and may be allowed the right to be heard. The governor, or his representatives, and members of the legislature have the right to sit at these public hearings and be heard on all matters coming before the joint committee.

Finally, Mason's Manual of Legislative Procedure, provides three sections of guidance that relate, at least tangentially, to the operation of committee meetings. Section 630, states, "Committee meetings are generally open to persons who are interested in the business before the committee and to the press and public. Historically, it was quite common for committees to hold some meetings in private, without notice. Most states now have provisions in their constitutions, statutes or rules that require legislative committee meetings to be open to all members and the public, subject to public notice, except when considering certain strictly specified subjects where secrecy is required." Section 691 indicates the open meeting provisions that apply to each house also apply to the committee of the whole. Finally, Section 784 states, "Most states have provisions in their constitutions, statutes or rules that require that the doors of each house shall be open to the public during its session, other than when secrecy is required."

OTHER REFERENCES ON PUBLIC MEETINGS Numerous other documents speak to the openness of legislative meetings, including the American Jurisprudence (Am Jur), the Congressional Research Service, and other state legislative staff. Below is a collection of applicable excerpts.

According to Am Jur 2d,

There is no common-law right to attend meetings of government bodies. However, many states have enacted public meeting statutes, often termed "Sunshine Acts," that provide that meetings of public entities within the state must be open to the public at large. The purpose of such statutes is to promote openness and accountability in government and to prevent the government from conducting the public's business in secret.5 Generally, exceptions allowing closed meetings are narrowly construed because they derogate the general statutory policy of open meetings.6 Any interested person (including members of the news media) or any person who might be affected by an action taken in violation of the open meeting requirement has standing to bring action for possible violation of the public meeting law.7

The Congressional Research Service (the federal counterpart to LSO Research staff) states the following in a recent report, The Constitution of the United States makes no specific allowance for any one of the co-equal branches to have access to information held by the others and contains no provision expressly establishing a procedure for, or a right of, public access to government information. Nonetheless, Congress has legislated various public access laws…Moreover, due to the American separation of powers model of government, interbranch conflicts over the accessibility of information are neither unexpected nor necessarily destructive.8

In the same Congressional Research Report, the author describes distinctions of public access questions of the executive, legislative and judicial branches of government. It states, Apart from interbranch information access dilemmas, Congress, in 1996, undertook fashioning various statutory arrangements for realizing public access to executive branch information. This focus resulted because legislators felt that Congress adequately made its deliberations and proceedings subject to public observation, largely published its records, and otherwise was constitutionally authorized to engage in information restriction. For example, the Constitution explicitly permitted each House of Congress a discretion to keep portions of its journal of proceedings secret and disallowed the questioning of Members of Congress "in any other Place" regarding official speech or debate. Legislators also were satisfied with the openness of federal court files and hearing rooms. Thus, the departments and agencies were the principal object of government information access reform laws.9

Other legislative staff offices have summarized and followed court cases and developments relating to the exercise of the legislative speech and debate clauses found in many sate constitutions and their relation to issues such as open meetings. In particular, Larry Shapiro, Chief Legislative Attorney for the Connecticut General Assembly summarized several relevant cases. (Mr. Shapiro's summary is included as Attachment B.)

5 2Am.Jur.2d § 84. 6 2 Am.Jur.2d §103. 7 2 Am.Jur.2d § 106. 8 Relyea, Harold, Specialist in American National Government, "Access to Government Information in the United States," Congressional Research Service Report for Congress, updated January 7, 2005, p. 1. 9 Ibid, p. 2.

OTHER STATES There is a wide range of statutory language, attorney general interpretations, and judicial interpretations on whether various state legislatures are subject to the same public meeting laws as other local and state agencies. In limited instances legislatures have elected to codify separate open meetings laws in the same spirit as the open meetings laws for other agencies, e.g., Cal. Gov't Code § 9027-9031. One example of states excluding their legislature from the application of the public meeting laws, similar to Wyoming, includes Hawaii. Its statute states, Notwithstanding any provisions contained in this chapter to the contrary, open meeting requirements, and provisions regarding enforcement, penalties and sanctions, as they are to relate to the state legislature or to any of its members shall be such as shall be from time to time prescribed by the respective rules and procedures of the senate and the house of representatives, which rules and procedures shall take precedence over this part. Similarly, provisions relating to notice, agenda and minutes of meetings, and such other requirements as may be necessary, shall also be governed by the respective rules and procedures of the senate and the house of representatives.10

On the other end of the spectrum, in Colorado, "state public body," as used within the public meetings act, includes the general assembly. (Colo. Rev. Stat. § 24-6-402(1)(d)) Therefore, notwithstanding preferences by subsequent Legislatures, at least one Legislature in Colorado elected to restrict its activities to the same standard as other state and local government bodies.

In terms of judicial interpretations, there are numerous decisions that relate to the application of sunshine laws to state legislatures. In one such case before the Alaska Supreme Court in 1987, the Court ruled in the following manner: That part of the superior court's decision which held as nonjusticiable allegations that the Legislators violated the Open Meetings Act or legislative rules is affirmed. That part of the court's decision which held that the public and press have an implied constitutional right of access to meetings of committees of the legislature and caucuses of legislators is reversed.11

Finally, yet another example of application of open meeting laws to a state legislature can be found in Mississippi. A 1989 opinion of the Mississippi Attorney General concluded that It is clear the Legislature has properly determined by express statutory language enacted into law that its own business falls squarely within the purview of the open meetings law. It is well settled, and this office is of the opinion, neither legislators nor the state legislative body can, by passage of its rules of procedure, exempt itself from the requirements of our state and federal constitutions, or state law.12

In conclusion, the above sample of state activities illustrates the range of public policy choices and interpretations regarding the application of open meeting laws to a state legislature. Given the array of approaches, inclusions, exclusions, and interpretations combined with the fact that the Wyoming Supreme Court is the final arbiter on any issues of Wyoming law, it seems inappropriate to make any encompassing summary conclusion from other states' responses to the application of open meeting laws on states, other than indicating that many approaches exist.

10 Haw. Rev. Stat. Ann. § 92-10. 11 Abood v. League of Women Voters of Alaska, 743 P.2d 333 (Alaska 1987). 12 Miss. A.G. Opinion # 89-781.

DISCUSSION At the outset, it is important to note that the extent to which the Wyoming Legislature requires its activities comply with the Wyoming Public Meetings Act, or any set of requirements, is a policy decision for the Legislature (or perhaps each Legislature). In addition, based upon the identified requirements for public access to legislative meetings, the fact that the Legislature is exempt from the Public Meetings Act should not be construed as to suggest that the Legislature's work is closed to the public. Recognizing the aforementioned constitutional, statutory, rule, and policy requirements as well as the practical application of those requirements, the Legislature's work is extraordinarily open despite the exemption from the Public Meetings Act. For example, each bill is read and debated a minimum of eight times (and perhaps more than fifteen times). The House and Senate Journals record all official action and several types of intermediate votes. Given the availability of technology, floor debates (and this year, Joint Appropriations Committee hearings) can be heard worldwide almost immediately via the Internet. Interim committee meetings are recorded and available to the public for review, minutes are published, electronic and physical notice is provided to both legislators and the public, and accommodations are made for those requesting assistance as a result of special needs. Finally, with payment of a small administrative fee, automatic electronic or hard copies of notices and minutes are available to any interested party immediately upon completion.

That said, all provisions of the Public Meetings Act are not required of legislative proceedings, e.g., if notice requirements are not met, the action is not necessarily voided. However, the self-imposed rules of openness and practice of the Wyoming Legislature and its committees appear, at least to this observer, to be in the spirit (and sometimes well beyond) the stated purpose of the Public Meetings Act. That is not to say that the level of openness is excessive, satisfactory, or insufficient. Such a determination is to be made by the legislative body itself, certainly not a legislative researcher. In that light, below is a brief discussion of potential arguments in favor and opposed to additional requirements of public access on legislative proceedings. Whenever possible, positions, possibilities, and concerns of external individuals are used throughout this memo so as to divorce the issues from the opinions of the author and articulate the observations of other informed policies and learned individuals.

Beginning with the benefits of open, responsive government, a Congressional Research Report observed the inherent balance of benefits between open, transparent public work and opportunities for candid negotiations when it summarized the activities of Congress by stating, A legislative assistant may find a review of House rules and committee practices on closed versus open meetings useful. A closed mark-up session could help foster negotiation and improve the chance of reaching a consensus on a controversial bill. However, closed mark-up sessions will also draw criticism as being contrary to the democratic spirit of "sunshine" rules.13

Next, the benefits of public meetings are well articulated within the stated purpose of the Public Meetings Act itself. It states, "The agencies of Wyoming exist to conduct public business. Certain deliberations and actions shall be taken openly as provided in this act." Similarly, a 1995 handbook prepared by the Attorney General explains the purpose of the Open Meetings Act as Public access to government agencies, boards and commissions is critical to a representative form of government. Governmental boards and commissions are essentially engaged in the public's business. The first duty of government is to serve the public. Holding public meetings which insures that all affected people are permitted an opportunity to be heard on issues that are important to their lives is essential to the effective performance of the duties of governmental bodies.

13 Nickels, Ilona B., Guiding a Bill Through the Legislative Process, Congressional Research Service Report for Congress, April 4, 1994.

Although department directors can perform many functions without open meetings, all agencies should act in the spirit of openness and responsiveness to the public it serves.14

Consideration of the extent to which the activities of the State Legislature should be open, under what conditions, with what penalties, relief, and remedies for violation, and with what exceptions, if any, is again, a legislative public policy choice. Among other factors, it appears to be a question of balance between the detrimental affect openness can engender through limitations of candid discussions on sensitive topics, administrative inefficiency, etc. and the benefits of open government. Expansive case law exists regarding the historical viewpoint and protection of legislative privilege and the authority to establish its own rules. As one example of the strength of the Legislature priority over this decision, a Tennessee Court observed in Mayhew v Wilder (2001) that "Of all the immunities enjoyed by government officials the legislative immunity is perhaps the most sweeping and absolute."15 In Mayhew v. Wilder, the Court found that "the Constitution contemplates openness in legislative deliberations, but we hold that…the decision to hold closed sessions is non-reviewable by the courts."16

Beyond the exercise of this legislative privilege, there may be some practical and administrative arguments for not applying the letter of the public meetings law to legislative activities. The specific rules imposed for open meetings law, by their nature, can make it difficult for the Legislature to meet these requirements. For example, during the legislative session, it may not be feasible to give extended notice regarding the bills and topics that will be discussed at future, unknown times. The process fluidity coupled with scheduling uncertainty is particularly true of conference committee meetings in the final days and even hours of a legislative session.

During the interim, the Committee Chairman's Handbook illustrates another practical concern of a citizen legislature where interim committee members must travel hundreds of miles to attend some meetings. Section V-8 of the Handbook identifies the expense of a one-day meeting and stresses the importance of having the chairman insure that a quorum will attend the meeting in order to transact business. It also raises options to address issues beyond a member's control (e.g., sudden adverse weather) to achieve a quorum through teleconference, allowances for delayed voting, or even the use of post card ballots.

Other questions might be raised in the event the Public Meetings Act applied to all legislative activities without exceptions. For example, should party caucuses be required to be open, particularly during the common occasion that the membership of one party consists of a majority of the body? Similarly, the question of whether the appointees from one house to a conference committee could meet in private to discuss priorities and goals prior to a meeting of the full conference committee may be raised. It has been argued that closed meetings on sensitive negotiations such as those found in conference committees, not unlike labor negotiations, allow for decisions to be reached that otherwise would not have been possible without some protection from the public eye.

Yet another issue that has been raised contemplates whether the application of a public meetings statute would bind subsequent Legislatures or whether requirements similar (or identical) to the public meetings statute would need to be adopted in rule by each Legislature. For example, in Mayhew v. Wilder, the State of Tennessee imposed an open meetings law, but did not specifically include or exclude the Legislature from the provision. The Court wrote (in dicta), "Furthermore, we are of the opinion that even if the Legislature intended to bind itself when it passed the Sunshine Law, the act would not bind a subsequent General Assembly." This conclusion appears to be based in part on a Tennessee Constitutional provision which

14 Wyoming Office of the Attorney General, "The Open Meetings Act: A Summary for Use by all Wyoming Department Directors & Agency Heads," September 1, 1995. 15 Mayhew v. Wilder 46 S.W.3d 760 (Tenn. App. 2001) appeal denied (Mar 19, 2001), rehearing of denial of appeal denied (Apr 30, 2001). 16 Ibid.

WYOMING LEGISLATIVE SERVICE OFFICE • 213 State Capitol • Cheyenne, Wyoming 82002 TELEPHONE (307) 777-7881 • FAX (307) 777-5466 • EMAIL • [email protected] • WEBSITE http://legisweb.state.wy.us PAGE 9 OF 9 provides that each house determine the rules of its proceedings – a provision quite similar to Article 3, Section 12 of the Wyoming Constitution.

If you have any question regarding this analysis, do not hesitate to contact me at 777-7881.

ADDITIONAL RESOURCES NCSL and American Society of Legislative Clerks and Secretaries, "Open Meetings and Notice Requirements," biannual survey of all state legislatures. Peter S. Wattson, Senate Counsel, State of Minnesota, "Legislative Immunity in Minnesota," September 1, 2005. [Available on-line at http://www.senate.leg.state.mn.us/departments/scr/treatise/immunity/legimm.htm viewed March 27, 2006.]