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Tuesday, April 17, 2012

Update on OMA Amendment (House Bill 4687)

In a previous blog post, I raised concerns with HB 4687.  That bill would add a new requirement to the Open Meetings Act that agenda items be "sufficiently descriptive" before they can be considered or the subject of final action.   My concerns focused on two issues:  (1) the “sufficiently descriptive” requirement was too vague and (2) the requirement that matters be listed on an agenda before they could be "considered" was inconsistent with controlling appellate court decisions and other language in the OMA that allows public bodies to consider (i.e., discuss or deliberate on) matters that are not listed on the agenda. 

Since House Bill 4687 was introduced, there have been a number of amendments to the bill.  While a recent Senate amendment attempts to address the vagueness issue, nothing has been introduced to address the more serious inconsistency within the OMA that allows the discussion, deliberation, and consideration (short of a vote) of matters not listed on a meeting agenda.

Senate Amendment No. 1, introduced yesterday, would add the following language:

Listing the title of any motion, resolution, or ordinance shall satisfy the requirement that the agenda item be sufficiently descriptive.

The addition of this language would seem to give public bodies some guidance as to what an agenda item should include to meet the new requirement.  However, that language actually raises more questions than it answers.  If a public body is only discussing or considering an item without intending to take any final action (no motion, resolution, or ordinance), how is that discussion item to be described on the agenda?  How does this new bill affect Board and Staff reports, public comment, and other traditional discussion items that involve no final action – would each and every discussion item have to be separately listed on the agenda?  For example, if the Mayor intends to report on various upcoming events or activities, would those individual discussion items have to be “sufficiently described” on the agenda?  How would a public body "sufficiently describe" the substance of public comments 48 hours before the meeting? 

Until the General Assembly introduces an amendment that eliminates the requirement that a public body list all items “that will be considered” on an agenda, this bill remains internally inconsistent and contrary to appellate court decisions such as County of Adams v. Rice. 

Note that the proposed legislation also added a requirement that the agenda be continuously available for the full 48 hour period.  House Amendment No. 2 would add the following language:

Posting of the notice and agenda on a website that is maintained by the public body satisfies the requirement for continuous posting under this subsection (c). If a notice or agenda is not continuously available for the full 48-hour period due to actions outside of the control of the public body, then that lack of availability does not invalidate any meeting or action taken at a meeting.

UPDATE:  July 19, 2012, Governor signs bill into legislation.

Posted by Julie Tappendorf, Ancel Glink


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