The intent of open meetings laws is to promote a more responsible, accountable government through openness and transparency. To accomplish this, these laws provide the general public with access to meetings of public bodies. Typically, public bodies serve governmental functions and members of these bodies consider, deliberate, and make decisions about public business and the use of public funds.

Each state adopts and enforces its own open meetings laws. These laws define the types of public bodies subject to them and require those bodies to facilitate public access to their meetings. The laws often include a range of requirements establishing how a public body conducts its meetings, such as the content of notices, the process for voting and discussion, the type of participation (in-person v. virtual), and the handling of confidential matters (closed sessions).

Typically, open meetings laws apply to governmental bodies (federal, state, and local). However, some states expand applicability to non-governmental entities, such as recipients of government grants and certain nonprofit organizations. As a result, each community action agency (CAA) must consider the applicability of its state open meetings laws to meetings of its tripartite board. Since local governments are public bodies, and public community action agencies (Public CAAs) are part of local governments, tripartite boards of Public CAAs must comply with state open meetings requirements. For nonprofit community action agencies (Nonprofit CAAs), the applicability of state open meetings laws depends wholly on an analysis of relevant laws in a Nonprofit CAA’s state. This resource helps Nonprofit CAAs with that analysis, and it assists Public CAAs and Nonprofit CAAs subject to such laws understand common compliance challenges.

CAPLAW is aware of the following four ways that the open meetings law in a state may apply to a Nonprofit CAA. A CAA must independently review each way and, as with all state-specific legal matters, consult with an attorney licensed in its state to ensure compliance.

In some states, the open meetings statute includes language that is broad enough to subject certain nonprofit organizations, such as Nonprofit CAAs, to its requirements. States use different titles for their open meetings statute (e.g., “Open Meetings Act,” “Freedom of Information Act,” “Freedom of Access Act,” “Sunshine Law”). Once a Nonprofit CAA identifies its state open meetings statute, it should review how the law defines the type of entity subject to the statute’s requirements (e.g., “public body” or “public agency”). This information is typically found in the “definitions” section of an open meetings statute. If the definitions section is not clear, or if an open meetings statute lacks a definitions section, a Nonprofit CAA should look elsewhere in the statute for this definition, such as in an introductory section or a section that describes the meetings that must be open to the public.

Since an entity that falls within the open meetings statute’s definition of a public body is subject to the law’s requirements, a Nonprofit CAA can sometimes determine by the definition alone if the law applies to it. For example, the Virginia Freedom of Information Act is the state’s open meetings law, and it defines a “public body” as:

[A]ny legislative body, authority, board, bureau, commission, district, or agency of the Commonwealth or of any political subdivision of the Commonwealth, including counties, cities, and towns, municipal councils, governing bodies of counties, school boards, and planning commissions; governing boards of public institutions of higher education; and other organizations, corporations, or agencies in the Commonwealth supported wholly or principally by public funds (VA Code Ann. § 2.2-3701) (emphasis added).

Based on this definition, a Nonprofit CAA in Virginia that receives most or all of its funding from public sources (i.e., federal, state, or local government grants) will need to comply with the open meetings law.

In instances where an open meetings statute fails to provide enough information for a Nonprofit CAA to definitively determine if the requirements apply to it, the Nonprofit CAA will need to look to state law interpretations as discussed below.

State CSBG laws sometimes impose additional requirements on tripartite boards related to making meetings open to the public. Because CSBG is a block grant, states exercise discretion over the funding and may pass state CSBG laws to administer and facilitate the funding. While the names of state CSBG laws vary widely, CAAs should find them referenced in state CSBG plans, if they exist. If a state’s CSBG law does not directly conflict with federal law, the state law will control (45 C.F.R. § 96.50(e)). Certain states choose to incorporate state open meetings law requirements into state CSBG laws and apply them, in whole or in part, to Nonprofit CAAs. A Nonprofit CAA analyzing the applicability of state open meetings laws must determine if its state has adopted state-specific CSBG statutes and regulations, and if so, whether the state CSBG laws apply open meetings requirements to Nonprofit CAAs.

For example, Maine’s open meetings law, the Freedom of Access Act, does not include language that subjects Nonprofit CAAs to the law’s requirements (see 13 M.R.S. § 402(2)). However, Maine’s state CSBG statute includes the following requirement for governing boards of all CAAs:

All meetings of the board of directors must be in accordance with the freedom of access laws (22 M.R.S. § 5325) (emphasis added).

As a result, Maine’s CSBG statute incorporates the requirements of the state’s open meetings law and applies them to all meetings of a CAA’s tripartite board.

CSBG laws in other states may incorporate open meetings laws less directly, or only partially. For example, some state CSBG laws only require a Nonprofit CAA board to comply with the state open meetings law requirements related to when and how the board may move into a closed session (i.e., an executive session) at its meetings.

Even when a state open meetings law does not explicitly apply to Nonprofit CAAs, the State Attorney General’s Office and courts may issue interpretations of the open meetings law that broaden its reach to Nonprofit CAAs. The Attorney General’s Office in each state typically enforces state open meetings laws. Its opinions, as well as court decisions (i.e., case law), analyze and apply statutory requirements to highly fact-specific situations and may inform a Nonprofit CAA’s analysis of its open meetings obligations. A CAA should work with an attorney in its state when reviewing state law interpretations to receive the most up-to-date and accurate information about existing requirements.

A State Attorney General’s Office interacts with open meetings law through enforcement actions which typically result in the issuance of opinions that interpret the applicability of open meetings requirements to nongovernmental entities, including Nonprofit CAAs. While a State Attorney General’s Office opinion is not legally binding on future opinions, it serves as useful guidance to Nonprofit CAAs; it shows how the State Attorney General’s Office has enforced open meetings law requirements in the past and suggests how it may do so in the future. Keep in mind, however, that the heads of State Attorney General’s Offices change, either through election or appointment, and the opinions of a prior State Attorney General may not reflect the current interpretations of open meetings requirements. State Attorney General’s Office opinions may be difficult to locate and review, but sometimes may be found on a State Attorney General’s website. A CAA should work with local counsel to review relevant opinions and determine if they speak to the application of open meetings law requirements to Nonprofit CAAs in the state.

Courts may have issued decisions regarding the application of open meetings laws to a nongovernmental entity, like a Nonprofit CAA. Courts often interpret statutes and regulations as part of a judicial proceeding and, in so doing, they create binding interpretations of the law (“case law”). A state court will typically serve as the venue for an entity that objects to a State Attorney General’s opinion applying the open meetings law to it. In such cases, the court may either develop a test, or apply a test established through case law, to determine if a nongovernmental entity, like a Nonprofit CAA, is considered a “public body” for purposes of the open meetings law. Often, the test will consider factors such as the receipt of public funding, whether certain programs and activities equate to typical government functions, and/or if a governing body includes a certain percentage of elected public officials. A Nonprofit CAA should work with local counsel to analyze whether case law applies open meetings requirements to nonprofit organizations in general and/or Nonprofit CAAs specifically. Where a test is involved, local counsel can help a Nonprofit CAA weigh and consider the various factors involved.

State-level resources also exist to help CAAs understand state open meetings law requirements and interpretations. Attorney General’s Offices in most states develop and release open meetings law guides or handbooks via their websites. While not legally binding, these comprehensive resources discuss state open meetings law applicability and compliance and are informed by case law and State Attorney General’s Office opinions. Because they compile relevant state open meetings law information into one resource, these guides often serve as the best starting point for CAAs to analyze applicability and inform a compliance approach, if necessary. For example, these guides typically include citations to the state’s open meetings law, providing an easy reference point to check the statutory language. They usually describe the types of “public bodies” subject to the law and often include examples of those entities. The guides typically detail elements of compliance, such as what constitutes acceptable “notice” of a public meeting, and the types of virtual meeting participation allowed.

Some states reference and incorporate open meetings law requirements in their grant agreements with Nonprofit CAAs. State grant agreements bind parties to the terms and conditions they contain and may include provisions stating that open meetings laws apply, in whole or in part, to the recipient of the funding. The agreement may reference “state open meetings laws” generally or may cite specific open meetings statutes or sections. A CAA should consider negotiating state-specific terms, like references to the state open meetings law, in its grant agreements, especially if compliance with such laws is particularly onerous.

Generally, when open meetings laws apply to a CAA, its tripartite board must notify members of the public of upcoming board meetings, allow for public attendance, and provide access to the minutes taken at the meeting. Compliance looks different for CAAs depending on the state where they are located. Given these differences, a Nonprofit CAA subject to open meetings law requirements must work with an attorney in its state to develop an approach to compliance. Public CAAs should reach out to attorneys that work for or with the local government to assist with compliance. While specific requirements will differ from state-to-state, most CAAs confront the following common challenges.

In some states, CAAs face compliance challenges because the open meetings requirements apply to a broad range of “meetings.” States differ on what constitutes a “meeting” subject to their open meetings statute. Some states require only full board and committee meetings to be open, whereas others apply open meetings requirements to meetings of as few as two board members speaking to each other about board business. In those states that apply open meetings requirements more broadly, CAAs should ensure that board communications policies and practices reflect this, and either lay out compliance procedures for notification and conduct for all types of open meetings or limit individual board member communications about board business to full board and committee meetings.

Open meetings laws may also impact whether a Nonprofit CAA board may take action without a meeting. Most state nonprofit corporation laws specifically allow nonprofit boards to take action without a meeting, provided the board members give unanimous written consent for the action. However, state open meetings laws may require public bodies to allow public access to meetings at which actions are taken. For Nonprofit CAA boards subject to open meetings laws, this means that the public must be able to see and hear board members as they deliberate and make decisions. This requirement runs counter to the flexibility some nonprofits have to act without a meeting. As such, a Nonprofit CAA subject to a state’s open meetings law could not take action without a meeting.

State law may limit a CAA’s ability to hold open meetings virtually. If virtual meetings are allowed, CAAs must then determine what access will look like for both board members and the public. Though some states in recent years revised open meetings requirements to allow greater flexibility around holding meetings virtually, other states still prohibit or limit the practice. Thus, any CAA that wants to hold virtual meetings must determine if the state open meetings law allows it, and if so, to what extent.

For board members, while open meetings laws may allow for virtual meetings, permissible methods for hosting, conducting, and participating in those meetings vary by state. For example, an open meetings law may limit the geographic scope of virtual participation by board members, requiring even remote board member participants to be located within a certain territory or service area to count towards the meeting quorum. Some open meetings laws only reference and allow virtual board member participation in meetings by teleconference (i.e., by phone). Others include video technology.

In addition to referencing a type of allowable technology, open meetings laws sometimes require specific functionality for board members to participate in virtual meetings. Some laws specify that all board members must always be seen and heard during virtual meetings. If virtual connectivity issues impair the public’s ability to see or hear a board member, the board member will be considered absent from the meeting if the issues persist. The board member will then not count towards a quorum. In some states, connectivity issues may even trigger the board to delay or adjourn the meeting.

Nonprofit CAAs must also confirm that the state nonprofit corporations act permits virtual participation by board members in a meeting, and if so, what is required to hold meetings virtually. Generally, nonprofit corporation acts allow for board members to participate in meetings virtually so long as everyone can hear one another. State open meetings and nonprofit laws may also provide varying degrees of flexibility around holding virtual meetings during times of emergency (see Weatherproofing CAA Bylaws).

Similar issues arise with regard to the virtual participation of members of the public in open meetings. Like board members, the public typically must also receive notification of virtual meetings with instructions on how to attend, which means that any platform used must be available and accessible. Furthermore, in some states the platform must have the capacity to permit the public to comment during the meeting. In addition, some states may require the public body to establish locations where public participants can congregate to view the meeting virtually. These types of requirements may pose challenges for CAA boards that lack technical expertise, or the resources to procure an adequate platform for open meetings.

Once a CAA understands what its state open meetings law requires for virtual meetings, it can develop procedures to comply. While a CAA may incorporate these procedures into its bylaws, note that future changes will require bylaws amendments. For this reason, many CAAs choose to establish board meeting policies or parliamentary procedures separate from the bylaws. When developing procedures for conducting virtual meetings, consider providing the board with the most flexible, allowable procedures under the open meetings law. This approach can help avoid unnecessary constraints on a board’s ability to meet, especially in times of emergency.

Open meetings laws can limit the ability of a CAA board to discuss sensitive matters in confidence. To discuss these matters, board members usually move into “executive session” during a board meeting, a closed meeting of board members for discussing private or confidential matters. While open meetings laws permit executive sessions, the laws limit when a board may move into one. Open meetings laws contain requirements that specify, usually via exceptions or exemptions, matters or topics that a board may discuss in an executive session and the process for doing so. While discussion of a matter such as litigation often warrants an executive session, state laws differ on whether other sensitive matters, such as personnel reviews or compensation decisions, warrant an executive session. State open meetings laws typically list and describe the topics or situations that the board may discuss in executive session.

Further, virtual meetings may pose logistical challenges when a CAA board moves into executive session. A CAA may need to work with an IT professional to ensure the platform that it is using has the technological capability for executive sessions to remain private, while ensuring that members of the public have access to the public portion of the meeting.

Open meetings laws often include processes or statements to make when entering and exiting executive sessions. Generally, boards must communicate what topic(s) will be addressed in the session, and once the executive session adjourns, report the result and any vote it took during the session. During the executive session itself, open meetings laws often require board members to ensure or attest that no other person is present or able to hear or see the executive session, either in-person or virtually.

CAAs in states that provide for public participation in open meetings may experience challenges related to meeting timeliness, logistics, and disruption. Most open meetings laws require the public to be permitted to see and hear the meeting. A few laws go further and grant members of the public the right to comment on matters before the public body at a meeting. Those laws typically set forth specific parameters for commenters to follow, such as the amount of time for commenting or that the comment must relate to business before the public body.  

A CAA can mitigate issues with public participation by developing policies that establish a framework within which participation will occur. Consider implementing time limits on public comments at meetings if the open meetings law does not impose or prohibit them. Develop procedures for when, how, and where members of the public deliver comments to minimize logistical uncertainty and maintain meeting order. Establish a code of conduct to guide public comments and promote respectful contributions. Such policies also support a board’s need to cut off a disruptive or disrespectful commenter.  

Enforcement for violations of a state open meetings law may vary for a Nonprofit CAA, depending on how the law applies to it. In states that apply open meetings requirements to Nonprofit CAAs through the state open meetings law or state law interpretations, the State Attorney General’s Office will enforce the law. In states that apply open meetings requirements to Nonprofit CAAs through the state CSBG Act or state CSBG grant agreements and contracts, the state CSBG office will likely be the one to enforce the law. Since the authority of a State Attorney General’s Office differs from a state CSBG office, this impacts the potential penalties a Nonprofit CAA will be subject to for noncompliance. 

As noted above, a State Attorney General’s Office enforces the state open meetings law through opinions, with potential penalties including fines or criminal misdemeanors, depending on severity. When a state CSBG office enforces open meetings requirements, it does so in the scope of its CSBG monitoring responsibilities. In this context, potential penalties include monitoring findings, corrective action, and potential loss of funding.