Open Meetings

3. What constitutes an “official meeting” of a public body?

An official meeting is any simultaneous communication in person or via technology by a majority of the members of a public body for the purpose of (i) conducting hearings, (ii) participating in deliberations, (iii) voting upon or (iv) otherwise transacting the public business within the jurisdiction of the body.^[12]

The inclusion of deliberations in the statute means that a public body need not be taking action or holding a hearing in order for its gathering to be an official meeting. The statute applies even if the sole purpose or business of the meeting is to discuss board business. To give any meaningful vitality to the Open Meetings Law, “deliberate” must encompass the discussion of any matter upon which foreseeable action will be taken. Other states have taken this approach to stem the use of evasive tactics.

Furthermore, the inclusion of “otherwise transacting the public business” makes clear that official meetings that might not reach the threshold of deliberations nonetheless are open. For example, if board members attend a briefing by a staff person or a consultant at which the members ask questions but do not discuss the matter among themselves, it might be considered a stretch of language to characterize that gathering as deliberations. But it is no stretch to characterize it as a transaction of the public business of the board. Thus it would be an official meeting governed by the Open Meetings Law.

Official meetings as defined above may well include gatherings that the members of the public body do not normally consider meetings of that body. For example, a number of board members might stop by board offices at the same time and start discussing a matter of current interest to their board. Such a discussion would probably constitute “deliberation,” and if a majority of the board is present, it is an official meeting (and likely a violation of the law).

A N.C. Court of Appeals decision makes clear that a public body may not avoid the open meeting requirement by conducting its business with members one-on-one. In Jacksonville Daily News v. Board of Education,^[13] the chairman of a board of education canvassed the board members, one at a time, via the telephone to discuss a salary increase for the board. The court noted that “the record reflects that the adoption of retroactive pay raises was never considered at a public meeting.”^[14] The court held that a pay raise for the board required public deliberation and thus the board’s action in approving the pay raise in part through telephone polling of its members violated the Open Meetings Law.

This is not to say that every gathering of two or more members of a public body constitutes a “meeting.” The statute expressly states that “a social meeting or other informal assembly or gathering together of the members of a public body does not constitute an official meeting unless called or held to evade the spirit and purposes of this Article.”^[15] However, if public body members or their delegates meet for the purpose of discussing public matters, they have violated the Open Meetings Law, even though it occurs in a social context.

In News & Observer Publishing Co., Inc. v. Coble,^[16] a coalition of newspapers and television stations filed suit against four members of the Raleigh City Council and the mayor alleging that they violated the Open Meetings Law when, gathered together to watch a basketball game, they discussed the city’s position with regard to a proposed new sports arena. Though the trial court dismissed the case on procedural grounds, the N.C. Court of Appeals and Supreme Court affirmed that the lawsuit sought a determination that the gathering was illegal, a recitation of what took place at the meeting, an injunction prohibiting such meetings in the future and attorneys’ fees. The Court of Appeals found the lawsuit stated a case and remanded it for further proceedings. By the time the case was returned to the trial court, two years had elapsed and the membership of the City Council had changed, and therefore the media plaintiffs dismissed their case.

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