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. 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 2 OF 9 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). 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 3 OF 9 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. 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 4 OF 9 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.