The Mississippi Open Meetings Act provides that “the formation and determination of public policy is public business and shall be conducted in open meetings.” Notwithstanding this command, some public boards in Mississippi had developed a policy of discussing public business—but not formally acting on any issues—in so-called “non-quorum” meetings, which are closed to the public. That practice, also called a “rolling quorum” or “walking quorum,” is no longer permissible in Mississippi.
In a victory for advocates of government transparency, the Mississippi Supreme Court declared this non-quorum meeting practice illegal. Going forward, public bodies in Mississippi, and attorneys who advise them, must take care that their board members do not conduct business at a private non-quorum meeting that is prearranged and non-social in nature. Violations of this rule can give rise to fines of up to $1,000 and require the public body to pay the expenses (including attorneys’ fees) of any person who successfully pursues a complaint against the body.
The Mississippi Supreme Court’s Ruling: Prearranged “non-quorum” meetings that are held for the purpose of discussing public business must be open to the public.
In City of Columbus v. The Commercial Dispatch, a newspaper challenged the City of Columbus’s practice of dividing city council members into small groups—less than a quorum of the six-member board—to discuss city business in a series of non-quorum meetings. These “non-quorum” or “sub-quorum” meetings were all prearranged by city officials for the purpose of permitting a closed-door discussion of sensitive economic development issues. The city excluded the public from these non-quorum meetings on the premise that the Open Meetings Act applied only when a quorum of the board was present for a meeting at which “official acts may be taken.”
The newspaper filed a complaint with the Mississippi Ethics Commission, the state body that enforces the Open Meetings Act, and the commission ruled the practice to be in violation of the Open Meetings Act, Miss. Code § 25-41-1 et seq. The commission ordered the city to cease its non-quorum meetings; the chancery court affirmed the commission’s ruling, and the city appealed to the Mississippi Supreme Court.
Relying on the “philosophy and spirit of the Act,” as well as its plain language, the Supreme Court declared that the practice of conducting prearranged closed-door, non-quorum meetings for the purpose of considering public business violates the Open Meetings Act. The unanimous opinion took pains to describe the purposeful nature of these meetings and their “express goal of discussing City business,” distinguishing them from chance encounters of a group of board members. Under the Supreme Court’s analysis, the nature of these private meetings—which “were not by chance or a product of a social gathering”—indicated an actual “intent” by city officials to circumvent the open meetings requirement. The court declared such intentional circumvention illegal.
What should public bodies do to comply with the court’s non-quorum meeting rule?
Mississippi law broadly defines “public body” to cover any entity created by the constitution, statute, executive order, or agency action—including community hospitals, private charter schools, and commissions or task forces established by public bodies. The court’s decision provides these public bodies with a new rule for non-quorum meetings, including teleconference meetings, and reinforces the court’s long-standing policy of liberally applying the Open Meetings Act to prevent “circumvention” based on technical readings of the act’s provisions.
After City of Columbus, public boards and their attorneys should be guided by the following four rules related to “non-quorum” or “sub-quorum” meetings, including telephonic meetings:
- Any planned non-quorum meeting of board members to consider public business must be treated as an official meeting subject to the requirements of the Open Meetings Act—including public notice, recording of minutes, admittance of the public, and the like.
- Because the act defines a meeting to include “an assemblage through the use of video or teleconference devices,” the non-quorum rule applies equally to telephone calls between two or more board members for the purposes of discussing public business. To ensure strict compliance with the act, the public body should treat such calls as official meetings subject to the notice, minutes, and public access requirements.
- Given the Supreme Court’s emphasis on the “spirit” of the act when resolving claims that a public body has violated open meetings laws, public bodies should err on the side of caution in their treatment of non-quorum meetings. Any non-quorum meeting that could later be characterized as an “intentional circumvention” of open meetings laws should be treated as an official meeting under the act.
- “Chance encounters” of board members and “social gatherings” that bring board members together for non-business purposes are still exempted from the act.
At bottom, the City of Columbus decision suggests that the only proper means for a board to conduct sensitive business in private is through the “executive session” mechanism, which permits private discussion of 14 categories of business as outlined in Miss. Code § 25-41-7.
What about email discussions among board members?
The Mississippi Supreme Court’s decision in City of Columbus did not involve electronic communications, and therefore leaves open the question of whether email discussions among board members are subject to the Open Meetings Act. Such discussions among public board members are doubtless occurring across Mississippi on a regular basis.
Recognizing the possibility that such electronic communications could be covered by the act, at least one state agency—the Personal Service Contract Review Board—has adopted a regulation discouraging non-quorum meetings and email communications among its board members:
Communications Among Board Members. In order to promote transparency and ensure compliance with the requirements set forth in the Mississippi Open Meetings Act, board members shall actively avoid communications regarding official PSCRB business, outside the setting of a board meeting, when a quorum is present, either in person or through electronic means. Miss. Personal Contract Rev. Bd. Reg. 6-211.02(a)
Courts in other states have held that email discussions are subject to open meetings laws, reasoning that permitting public boards to engage in private discussions of public business via email would circumvent the purpose of the act (see, e.g., White v. King, 60 N.E.3d 1234 (Ohio 2016); Johnston v. Metropolitan Gov’t of Nashville and Davidson Cty., 320 S.W.3d 299 (Tenn. Ct. App. 2009); Wood v. Battle Ground School Dist., 27 P.3d 1208 (Wash. Ct. App. 2001)).
Given the Mississippi Supreme Court’s liberal application of the Open Meetings Act, reinforced in City of Columbus, it is likely that—when presented with a proper case—the court would declare that private email communications among board members about public business violate the act. The court appears determined to apply the act to achieve the perceived legislative purpose of maximum transparency in the conduct of public business, and bringing such board email discussions under the act is a logical next step in the court’s jurisprudence.