Municipal Law

Municipal Law Definition

Municipal Law, term used to designate the body of law of an individual nation or subdivision thereof, as distinguished from international law. Municipal law includes both public law, the branch of law concerned with the relations between the state and the individual, and private law, the branch of law concerned with the relations between individuals. In the U.S., the term municipal law has often been restricted in recent years to the body of legislation regulating municipal administration.

Source: Municipal Law Microsoft® Encarta® Online Encyclopedia

Municipal Government: Open Meetings

The principle of open government is a linchpin of democracy because it allows citizens to scrutinize the activities of elected officials and public servants to ensure that they are acting in the public interest. One pillar that supports open government in Ontario is the province’s freedom of information laws that give people the right to access government-held information.1 However, the second pillar that supports open government – requiring public bodies to conduct open meetings – is only partly built.

In the United States, the federal government and all state governments have enacted open meetings laws that guarantee, with limited exceptions, that the public can attend meetings of public bodies, including municipal governments.

Open Meetings Law

In a democracy, the people are vested with ultimate decision-making authority, which they delegate to elected representatives and other public servants. Except in very limited and specific circumstances, public officials should conduct their business in open, not in secret, and ensure that the people to whom they are accountable – the public – are given proper notice of all meetings.

Comprehensive open meetings laws facilitate citizen participation in the policy and decision-making process of government. They enhance the ability of the public to evaluate the performance of the individuals whom it has elected to represent its interests. Open meetings laws may also serve to build public confidence in government by assuring the public that elected and appointed officials are serious about keeping corruption and favouritism out of the decision-making process. (Ann Taylor Schwing, Open Meeting Laws, 2nd ed. (Anchorage: Fathom Publishing Company, 2000), p. 34).

Municipal governments take considerable pride in their open business style and, in some respects, they deserve this reputation for openness. However, public concerns are pushing them to be even more open.

Definition of Meeting

The issue of what constitutes a “meeting” has dogged municipalities for years. The media occasionally report that a municipal council or board has held an “informal” meeting, without proper notice, invariably accompanied by cynical allegations that elected officials are trying to avoid an open public process for dealing with controversial issues. Municipal officials may argue, often with good reason, that chats over lunch or discussions at informal social gatherings are not true “meetings.” However, such debates will continue to rage unless we have a definition of a meeting that is clear and easily understood.

One of the editions of the Black’s Law Dictionary defines a meeting as “ … an assembling of a number of persons for the purpose of discussing and acting upon some matter or matters in which they have a common interest …”.

Most people would agree that a gathering of all municipal councillors or board members where a decision is made or formal action is taken would constitute a meeting. However, it would arguably be unreasonable and impractical to include accidental encounters or informal social gatherings between a minority of municipal councillors or board members in the definition of a meeting.

Is a gathering a “meeting” only if a majority of municipal councillors or board members are present? Does a meeting occur if municipal councillors or board members simply “deliberate” about public business or public policy? What about an exchange of e-mail messages or a debate in an Internet chat room? Would participation in electronic forums such as these constitute a “meeting?”

In U.S. open meetings laws, there are a variety of definitions of the term “meeting,” but at least two common indicators may be found in many of these definitions. First, a “meeting” may only be deemed to have taken place if a “quorum” of a public body’s members is in attendance. A quorum is usually defined as a simple majority of the members of a public body; it is the number of members who must be present for a public body to act (Ann Taylor Schwing, Open Meeting Laws, 2nd ed. (Anchorage: Fathom Publishing Company, 2000), p. 263). A majority of state open meetings laws use a quorum as the test for whether a meeting has taken place. (Ann Taylor Schwing, Open Meeting Laws, 2nd ed. (Anchorage: Fathom Publishing Company, 2000), p. 265).

Second, all states define a meeting as including the “deliberations” of a public body leading up to a decision, even if no formal action occurs (Ann Taylor Schwing, Open Meeting Laws, 2nd ed. (Anchorage: Fathom Publishing Company, 2000), p. 278). Massachusetts further defines the term “deliberations” as “a verbal exchange between a quorum of members of a governmental body attempting to arrive at a decision on any public business within its jurisdiction.” See Mass. Gen. Laws Ann. ch.30A, § 11A (West 1999 Cum.PP) (state bodies); Mass. Gen. Laws Ann. Ch. 34, § 9F (West 1985) (counties), Mass. Gen. Laws Ann. Ch. 39, § 23A (West 1999 Cum.99).

Some examples of states that include the quorum and deliberations indicators in their definition of a meeting include:

• Arizona defines a meeting as “the gathering of a quorum of members of a public body to propose or take legal action, including any deliberations with respect to such action.” See Ariz. Rev. Stat. Ann. § 38-431(3) (1996).
• Texas provides that a meeting is “a deliberation between a quorum of a governmental body, or between a quorum of a governmental body and another person, during which public business or public policy over which the governmental body has supervision or control is discussed or considered, or during which a governmental body takes formal action.” See Tex. Gov’t Code Ann. § 551.001(4) (Vernon 1994).
• Oregon and West Virginia define a meeting as “the convening of a governing body of a public body for which quorum is required in order to make a decision or to deliberate toward a decision on any matter.” See Ore. Rev. Stat. § 192.610(5) (1995); W. Va. Code Ann. § 6-9A-2(4) (1998 Supp.)

The debate over whether a particular gathering constitutes a “meeting” has been subject to litigation in the courts and other complaint or advisory forums in U.S. jurisdictions with open meetings laws. In Virginia, the Freedom of Information Advisory Council and its staff issue advisory opinions interpreting provisions of the Virginia Freedom of Information Act (FOIA) upon request by citizens, public officials and reporters. The council has issued advisory opinions about the FOIA’s open meetings provisions, including whether a particular gathering was a “meeting.”

For example, the council found that a proposed e-mail network, consisting of the members of the Winchester city council, the city manager, and the city attorney, among others, would be more akin to a meeting than to mere correspondence and noted:

“The network would allow an electronic conversation to ensue, in which ideas concerning public business could readily be exchanged among all members of a public body … While this conversation might not ensue as instantaneously as a face-to-face conversation, the end result would be the same exchange and discussion of ideas outside of the public’s view” (VA Foia Council).

Notice Requirements

Most U.S. open meetings statutes have a general provision that require public bodies to provide proper and advance notice of all meetings to the public, although the particular notice requirements vary from statute to statute. Notices that fail to identity the place, date and time of a meeting are usually deemed to be in violation of the law.

In most states, the statutory notice requirements set the minimum standard that must be met. Public bodies may give more extensive notice than stipulated in the open meetings law. Notice requirements found in other statutes or in local ordinances or regulations may also supplement the requirements set forth in an open meetings law.

The advanced time period within which the public must be notified of a meeting varies from state to state. Some open meetings laws prescribe specific notice periods that vary from 24 hours to 10 days prior to regular meetings. A small number of states do not prescribe a specific time period but instead require that “reasonable notice” be given. For example, Maryland requires “reasonable advance notice to the public,” (Md. Ann. Code State Gov’t § 10-506(a) (1995)) while Oregon requires “public notice, reasonably calculated to give actual notice to interested persons including news media.” See Ore. Rev. Stat § 192.640(1) (1995).

Many states require public bodies to provide an agenda to the public at some designated time before a meeting. However, only a small number of states define the term “agenda.” In Delaware, an agenda is defined as “a general statement of the major issues expected to be discussed at a public meeting …” See Del. Code Ann. tit. 29, § 10002(f) (1997). In California, local public bodies are only required to provide “a brief, general description of the business to be transacted or discussed.” See Cal. Ann. Gov’t Code § 54954.2(a) (West 1999 Cum.PP).

Hawaii’s “Sunshine Law” prohibits a board from meeting unless written public notice, including an agenda of items to be discussed, is provided at least six days before the meeting (Haw. Rev. Stat. ,§ 92-7(a), (b) (1998 Supp.)). If the notice period is not complied with, the meeting must be cancelled (Haw. Rev. Stat. ,§ 92-7(c), (b) (1998 Supp.). After an agenda has been filed, a board may not add an item if it is of “reasonably major importance” and action on this item by the board would affect a significant number of persons (Haw. Rev. Stat. ,§ 92-7(d), (b) (1998 Supp.).

In general, a notice must be posted in a location that is freely accessible to the public. Some states require that notice be filed or posted for public inspection in the office of the public entity in question. For example, Arizona requires public bodies to file a statement with the secretary of state or clerk of counties, cities or other bodies stating the location of public notices of meetings. See Ariz. Rev. Stat. Ann. § 38-431.02(A) (1996). Oklahoma requires public bodies to give an annual schedule of meetings to the secretary of state for state entities or the appropriate county or municipal clerk for county, municipal, district and regional public entities. See Okla. Stat. Ann. tit. 25, § 311(A) (West 1999 Cum.PP).

Some states require that notice of a meeting be sent to or printed in a newspaper in the city or town where the public body will be meeting.51 Few open meetings statutes require public bodies to post notice of meetings on their Web sites, although this is now a common practice in many jurisdictions.

Right to Complain/Oversight Body

In most U.S. states, relief for violations of open meetings laws is available on application of “any person,” “any taxpayer,” or “any citizen of the state.” Some states, such as Indiana, do not require plaintiffs to allege or prove that they have suffered any special damage different from that suffered by the public at large. See Ind. Code Ann. § 5-14-1.5-7(a) (1998 Cum.PP) Other states, such as Connecticut, require plaintiffs to show a specific personal and legal interest in the subject matter and some possibility of a special and injurious effect on that specific interest to establish a complaint. See Ind. Code Ann. § 5-14-1.5-7(a) (1998 Cum.PP). Oregon allows “any person affected by a decision” to sue under its open meetings law. See Ore. Rev. Stat. § 192.680(2) (1998 Supp.).

Ontario’s Municipal Act does not provide the public with a formal right to complain about a violation of the open meetings rules in section 239. However, there are two general provisions that an individual may use to attempt to

(1) quash a bylaw for illegality or
(2) “restrain by action” the contravention of a bylaw.

There is substantial variation in U.S. open meetings statutes as to which parties or bodies may enforce such laws. However, several U.S. states have an ombudsman who oversees enforcement and interpretation of the open meetings law (S.O. 2001, c. 25.). The courts typically show some level of deference to the ombudsman’s interpretations of the law (S.O. 2001, c. 25.). For example, in Connecticut, the Freedom of Information Commission61 is responsible for reviewing alleged violations of the state’s open meetings law and has the power to issue orders. In general, complainants must first seek relief from the Commission but may appeal to the courts if they are dissatisfied with the Commission’s decision. See Conn. Gen. Stat. Ann. § 1-206(b),(c) (West 1999 Cum.PP).

Oregon’s Government Standards and Practices Commission has the power to review and investigate complaints that public officials have violated the state’s open meetings law. The commission may interview witnesses, review minutes and other records in camera, and obtain other information about executive sessions (i.e., closed sessions) to determine if a violation of the open meetings law has occurred. It may also impose civil penalties in certain cases. See Ore. Rev. Stat. § 192.685(1),(2), 244.260(1) (1998 Supp.)

In Maryland, the Open Meetings Law Compliance Board has the power to receive, review and resolve complaints from any person alleging a violation of the state’s open meetings law. The board may also issue an opinion as to whether a violation has occurred or a prospective violation may occur. See Md. Ann. Code State Gov’t § 10-502.1 et seq. (1995) However, the board’s opinions are advisory in nature. It is prohibited from requiring or compelling specific action by a public body, and its opinions may not be introduced as evidence in proceedings brought before a court to enforce the open meetings law. See Md. Ann. Code State Gov’t § 10-502.5(i), (j) (1998 Supp.). See also the Maryland Attorney General’s Web site, which contains advisory opinions of the State Open Meetings Law Compliance Board.

Other state bodies that have some degree of oversight over open meetings laws include the Hawaii Office of Information Practices, New York’s Committee on Open Government and Virginia’s Freedom of Information Advisory Council.

The attorneys general in virtually all U.S. states have the power to issue opinions about the application and interpretation of an open meetings law. Moreover, the power to enforce open meetings laws in the courts is often given to the attorney general or to the district attorney in the county in which the offence occurred or in which the public body normally meets. Some states allow citizens to enforce the law in the courts but not seek a full range of remedies. For example, in Wisconsin, any person may enforce the open meetings law but only the attorney general or district attorney may seek supplementary relief, including mandamus and injunctive or declaratory relief. See Wis. Stat. Ann. § 19.97(2) (West 1996).

In general, however, the power to seek enforcement of open meetings laws in such states is not vested exclusively in the attorney general or district attorney. See Wis. Stat. Ann. § 19.97(2) (West 1996). Private citizens may also seek enforcement of the law by filing a complaint with the attorney general or district attorney. For example, in Louisiana, the attorney general and district attorney may initiate proceedings on their own initiative and “shall institute such proceedings upon a complaint filed with him by any person …” La. Rev. Stat. Ann. tit. 42 § 10(A), (B) (West 1990). Similarly, Rhode Island and Wisconsin authorize citizens to complain to the attorney general, who is required to investigate the allegations and, if appropriate, file a complaint on behalf of the citizen. See R.I. Gen. Laws § 42-46-8(a) (1998 Supp.); Wis. Stat. Ann. § 19.97 (West 1996).

Remedies and Penalties

If a court or oversight body determines that a municipal council or board has breached an open meetings law, there must be a remedy, or series of optional remedies, to address the problem. Moreover, it may be appropriate in certain circumstances to impose a penalty to deter future violations of the open meetings law.

U.S. open meetings laws provide a number of remedies and penalties that are either generally available or may be applied to specific types of violations:

• Injunctive Relief – Most open meetings laws authorize the imposition of temporary or permanent injunctive relief once a violation has been established. Injunctive relief is a prospective remedy. In other words, it requires a public body to comply with the open meetings law for a designated period in the future. For example, the Tennessee statute provides that the court “shall permanently enjoin any person adjudged by it in violation of this part.” Moreover, it requires the court to retain jurisdiction over the parties and the subject matter for one year and requires the defendants to report in writing semi-annually as to their compliance with the open meetings law. Tenn. Code Ann. § 8-44-106(c),(d)
• Declaratory Relief – Declaratory relief is also available as a potential remedy under either the open meetings law or a generally applicable declaratory judgment statute. Public bodies themselves may seek such relief from the court to ensure that they are acting in compliance with the open meetings law. For example, in Iowa and Missouri, the open meetings laws provide that a governmental body that is in doubt as to the legality of closing a particular meeting or vote may sue to ascertain the propriety of its proposed action or may seek a formal opinion of the attorney general. See Iowa Code Ann. § 21.6(4) (1995); Mo. Ann. Stat. § 610.027(5) (Vernon 1999 Supp. Pamph.)
• Mandamus – This is an order that compels a person to perform a public or statutory duty. See R.E. Allen, The Concise Oxford Dictionary (New York: Oxford University Press, 1990). This remedy is available for violations of open meetings laws under either the open meetings law or under a generally applicable law. As with injunctive relief, mandamus has a prospective application.
• Invalidation – In contrast to injunctive relief and mandamus, which are primarily prospective remedies, invalidation of an action taken in violation of an open meetings law is retrospective. Numerous open meetings statutes empower the courts to void any final action taken at a meeting that was not compliance with the statute. For example, under the Connecticut statute, the Freedom of Information Commission may declare null and void any action taken at any meeting to which a person was denied the right to attend. See Conn. Gen. Stat. Ann. § 1-206(b)(2) (West 1999 Cum.PP). If a court invalidates an action taken at a meeting because of a violation of the open meetings laws, the usual effect is to require the public body to start over in compliance with the law. See Conn. Gen. Stat. Ann. § 1-206(b)(2) (West 1999 Cum.PP)
• Civil Penalties – Most open meetings laws authorize the imposition of civil monetary penalties once a violation has been established. The law may impose a specific civil penalty or authorize a penalty of up to a certain amount of money (e.g., $1,000). Some statutes increase the penalty for subsequent violations. For example, New Jersey provides a civil penalty of $100 for the first offence and from $100 to $500 for subsequent offences. See N.J. Stat. Ann. § 10:4-17 (West 1998 Cum.PP). Depending on the state, civil penalties may be assessed against the public body itself, against the members of the public body who violated the law, or against a person who intentionally violates the law.
• Criminal Monetary Penalties and Imprisonment – Open meetings laws may also provide for criminal penalties, ranging from a fine to imprisonment. Misdemeanour penalties are often increased for subsequent violations. For example, Michigan provides for a fine of up to $1,000 for the first offence and a fine of up to $2,000 or imprisonment for up to a year or both for the second offence in the same term. See Mich. Comp. Laws Ann. § 15.272 (West 1994). Although imprisonment is available as a statutory penalty in some states, it is rarely imposed.
• Forfeiture of Office or Future Public Office – Some open meetings laws contain provisions that allow the court to remove or bar from public office any official who has violated the law. For example, Arizona’s open meetings law provides that the court may remove a public officer from office if he or she violated the open meetings law with intent to deprive the public of information or the opportunity to be heard. See Ariz. Rev. Stat. Ann. § 38-431.07(A) (1996). Similarly, Ohio allows for the removal of a member of a public body who knowingly violates an injunction issued under the open meetings law. Ohio Rev. Code Ann. § 121.22(I)(4) (Anderson 1998 Supp.)
• Contempt of Court – A standard remedy for violation of court orders is contempt of court. As in other situations, failure to comply with a court order or a consent decree reached under an open meetings law may result in a finding of contempt.

This same principle applies to some of the ombudsman bodies that oversee open meetings laws in the U.S. For example, any member of a public body who fails to comply with an order of the Connecticut Freedom of Information Commission is guilty of a Class B misdemeanour. See Conn. Gen. Stat. Ann. § 1-240(b) (West 1999 Cum.PP).

Municipal Law in the United States

See Municipal Law in the U.S.

Summary of Municipal Law

In international affairs, the internal, domestic law of a particular country. (Main Author: William J. Miller)

Introduction to Municipal Law

Municipal Law, term used to designate the body of law of an individual nation or subdivision thereof, as distinguished from international law. Municipal law includes both public law, the branch of law concerned with the relations between the state and the individual, and private law, the branch of law concerned with the relations between individuals. In the U.S., the term municipal law has often been restricted in recent years to the body of legislation regulating municipal administration.” (1)

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Municipal Law

Embracing mainstream international law, this section on municipal law explores the context, history and effect of the area of the law covered here.

Resources

Further Reading

• The entry “municipal law” in the Parry and Grant Encyclopaedic Dictionary of International Law (currently, the Encyclopaedic Dictionary of International Law, 2009), Oxford University Press

Resources

Notes and References

1. Information about Municipal Law in the Encarta Online Encyclopedia

Guide to Municipal Law