They are elected. They often have the power to set policies on issues that directly affect their fellow citizens. They represent their constituents before other public officials and bodies. They decide how to distribute -- and in some cases whether to raise -- public funding, sometimes amounting to millions of dollars. And yet, it is not always clear whether the elected student government at some state colleges and universities must meet in public or whether they are permitted to conduct official business in secret, behind closed doors.
Whether it is determining how to allocate mandatory student fees collected by a university or setting policy on issues that affect the daily lives of those they represent, the student government at a public college or university can function much like other publicly elected governing bodies. And just as the local city paper would be remiss if it failed to send reporters to cover the meetings of its city council, student newspapers understand their responsibility to their readers to report on the proceedings of their student government. Unfortunately, while the city paper reporter generally will not have to think twice about gaining access to the city council, student reporters too frequently find the door to their student government's meeting locked. And in some cases it is not altogether clear whether a legal key, in the form of an open meetings law, will open that door.
As of 2010, research by Student Press Law Center showed that there were few guidelines to indicate or predict whether student government meetings would be covered under a state's open meetings statute.
In general, open meetings laws, which are found in all 50 states and the District of Columbia, provide legal authority that allows the public to attend, photograph, record or broadcast the meetings of "governmental" or "public bodies," terms whose specific definitions may or may not include a student government. While their general purpose is the same, open meetings laws vary by state and can change as courts and attorneys general issue new opinions and legislatures revise or rewrite their statutes. Indeed, attorneys general in states whose open meeting laws contained fairly similar language nevertheless have come down on opposite sides when asked whether their law applies to student government proceedings. (While the opinion of an attorney general is not binding law, it can often persuade a court.)
While the process of determining your right of access can be frustrating in the absence of clear and stable guidelines, there are a few basic ideas to keep in mind. Although open meetings laws do not generally apply to private colleges and universities (there may be exceptions tied to receipt of state funding), almost all open meetings laws include provisions that apply to the top governing body of a public college-level institution, such as a board of regents or trustees. In many states whose sunshine laws do not specifically mention colleges or universities, the state's courts or attorney general's office has issued an opinion saying that the open meetings law extends to institutions of higher education.
In formulating an argument for access, journalists should look very carefully at the relationship between the student government and, for example, the board of regents. Determine the legal source for the student government's existence. Some student governments can trace their creation back to an official act of the board of regents. Establishing such a direct link should add considerable weight to an argument that the student government is a state-sanctioned governmental body.
It is also important to look at the student government agency's powers and duties. If it can be shown that the board of regents has delegated to a student government a power it normally would reserve for itself, such as the allocation and distribution of money collected by the school or actual policy-making authority, a court might be inclined to rule that the student government functions as an official arm of the government. In states whose laws cover "advisory bodies," even something less than decision-making authority might be enough to turn student government into a public body.
Only the statutes in California, Nevada and Washington list student governments in the category of public bodies that must be open. Despite the fact that student governments are not mentioned in the other 47 states, there is statutory language in most of the open meetings laws that arguably encompasses student government meetings. For example, statutes that expressly cover "committees" or "subunits" of a public body usually will open the meetings of student governments, especially where they have been delegated some decision-making authority from the board of regents. Examples of states with this type of statute are Colorado, Illinois, Massachusetts, Minnesota, New Hampshire, Ohio and Vermont.
Often a statute will open student governments by covering the meetings of all bodies that are supported by or expend public money or tax revenue. Statutes with this wording can be found in the following states: Alabama, Arkansas, Delaware, Illinois, Kansas, Kentucky, Michigan, Mississippi, Missouri, Montana, Nevada, New Jersey, North Dakota, Oklahoma, South Carolina, South Dakota, Utah, and Virginia.
Unfortunately, even though a particular state's law might contain the wording mentioned above, there is no guarantee that the student government meetings will be open. While the trend seems to be toward openness and public opinion generally favors holding student governments accountable for their actions, some of these statutes are imprecise. In addition, even if student governments are found to be "public bodies" that must comply with an open meetings law, there may nevertheless be a specific exemption in the statute that would allow them to close an occasional meeting to discuss a particular topic. (For example, the right to close meetings to discuss "personnel matters," "adjudicatory proceedings," or "legally confidential" matters are common exemptions.) A common limit on these exceptions is that the meeting be open and the purpose of the closed meeting announced before going into closed session.
Obviously, the time to become acquainted with your state's open meetings law and how it works is before you are kicked out of the meeting you have been assigned to cover. Every newsroom should have a copy of its state open meetings law available for its staff. If yours does not, you can contact the Student Press Law Center, your state press association or a local attorney to help you obtain one. Additionally, the National Freedom of Information Coalition Web site (www.nfoic.org) contains links to many state open meetings laws.
Even where a law does not clearly provide for access -- and particularly at private schools where a state's open meetings law is generally of no use -- strong non-legal arguments can be made that students should have the right to know what their elected student government is doing. It is often said that the best government is an open government. When student reporters are barred from a student government meeting, let the readers know. They are the ones ultimately harmed when they are denied information about how their money is spent and how policies that will affect them are formulated. Encourage them to demand to know what their elected representatives have hidden from their constituents. And consider contacting the local media and perhaps the alumni association to let them know of your problems in gaining access. In our experience, persistence pays off.
Note: As most states have never specifically ruled on the applicability of open meetings laws to student government meetings, the following state-by-state analysis represents the Student Press Law Center's best judgment of how a court might decide the issue.
Ala. Code Secs. 36-25A-1 to 36-25A-11 (2010). Student government meetings should be open in Alabama. The statute generally provides that all bodies "which expend or appropriate public funds; . . . multimember governing bodies of departments, agencies, institutions, and instrumentalities of the executive and legislative departments of the state or its political subdivisions; and quasi-judicial bodies of the executive and legislative departments of the state and all standing, special, or advisory committees or subcommittees of, or appointed by, the body" are required to hold open meetings. Where a student government is charged with disbursing state funds, which should include the allocation of mandatory student activity fees collected by a public university or college to various student groups, or where the state or school officials have delegated any legislative or judicial authority to them it is reasonable to conclude most student government meetings should be open. Public access to the meetings of these bodies extends to the entire governmental process: from public policy discussion and formulation through policy adoption and enforcement. The Alabama Supreme Court has held that members of the public have standing to assert their right to attend meetings. Miglionico v. Birmingham News Co., 378 So.2d 677 (Ala. 1979).
A person who violates this law could be up to $1,000 per meeting or "one half of [his or her] monthly salary for service on the governmental body, whichever is less."
Alaska Stat. Secs. 44.62.310 to 44.62.312 (2010). Student government meetings probably are open in Alaska. All "meetings" of a "governmental body" of a "public entity" of the state are open to the public except as otherwise provided by this section or another provision of law. A "government body" is anything that has authority to establish policies, make decisions, or even advise a public entity. A "meeting" is either a prearranged gathering or a gathering of more than three members or a majority (whichever is less). A "public entity" is a subdivision of the state specifically including the University of Alaska and school districts. The statute does not mention student government, but does except employee groups established by the Board of Regents of the University of Alaska. The Alaska Supreme Court, interpreting the earlier version of the law, held that the statute was not limited to decision-making bodies and that a local tenure committee of the University of Alaska was covered by the act. Univ. of Alaska v. Geistauts, 666 P.2d 424 (Alaska 1983). More recently, the supreme court stated that the goals of the act are to encourage "public participation and input in the operation of government," maximize "informed and principled decision-making in individual cases" and deter future violations, Revelle v. Marston, 898 P.2d 917 (Alaska 1995), words that would seem to bode well for student media seeking to keep their readers informed about the activities of their elected government representatives.
Ariz. Rev. Stat. Ann. Secs. 38-431 to 38-431.09 (2010). The Arizona statute includes the governing bodies of state institutions -- and all bodies whose boards of directors are appointed or elected by the state or political subdivision -- as among the public bodies required to hold open meetings. A meeting is a gathering of a quorum that deliberates toward a decision. An Arizona appeals court held in a 1966 libel case that the student government at the University of Arizona was a "real" government because the systems of politics and news media on campus were "obviously patterned after the situation off campus" and it made little sense to have a different libel law on campus and off campus. Klahr v. Winterble, 418 P.2d 404 (Ariz. Ct. App. 1966).
In addition, it should be noted that the statute defines "public body" to include all political subdivisions of the state including school districts. Even if members of a committee are not members of the public body, the open meetings law applies. The committee does not need the power to act, but only to advise in order to fall under the open meetings law. The state attorney general has applied the law to a state university's board of regents and to a school board. The attorney general, in those cases, indicated that any other body to whom the board had delegated its governing authority would also be covered. Op. Ariz. Att'y Gen. No. 178-285 (1978). Op. Ariz. Att'y Gen. No. 180-202 (1980). The Arizona Supreme Court, however, took a narrower view in a 1975 case. The court held that an advisory textbook evaluation committee established by a school board was not subject to the open meetings requirement. Wash. Sch. Dist. No. 6 v. Super. Ct. , 541 P.2d 1137 (Ariz. 1975).
For each violation, a court may impose a civil fine up to $500.
Ark. Code Ann. Secs. 25-19-101 to 25-19-110 (2009). Student government meetings should be open in Arkansas. The attorney general has stated that the student senate and the supreme court of the associated student government of a state university, as well as the student body association of a community college, are subject to the Freedom of Information Act because these entities are supported by public funds and they are advisory. Op. Ark. Att'y Gen. No. 78-63 (May 1, 1978), Op. Ark. Att'y Gen. No. 92-508 (Sept. 16, 1992). Under the act, all meetings, formal or informal, of an agency of the state or a governing body of a political subdivision of the state that are supported by or spend public funds are covered by the state's open meetings statute. Committees of the groups subject to the act are covered, Ark. Gazette Co. v. Pickens , 522 S.W.2d 350 (Ark. 1975), as are private organizations supported in part by a public institution. The Arkansas Supreme Court has held that the statute was "enacted wholly in the public interest and was to be liberally interpreted to achieve its purposes." North Cent. Assoc. of Coll. & Sch. v. Troutt Bros., Inc. , 548 S.W.2d 825 (Ark. 1979).
A person who violates the law is guilty of a Class C misdemeanor and will be ordered to pay up to $100, serve 30 days in jail or both.
Cal. Gov't Code Secs. 9027 to 9031 (Assembly & Senate), 11120 to 11132 (State Agencies), 54950 to 54963 (Local Agencies) (2009).
A variety of statutes in California control whether meetings are open at the three state higher education systems:
The University of California System: Cal. Educ. Code Secs. 92020 to 92033 states that meetings of the Regents of the University of California, including its standing and special committees or subcommittees, are subject to the Bagley-Keane Open Meeting Act (Cal. Gov't Code Secs. 11120 to 11132). In 1987, a California appeals court considered whether a faculty meeting must be open, and held that the statute did not cover bodies that advise the regents or that exercise authority delegated to them by the regents. Tafoya v. Hastings Coll. of the Law , 236 Cal. Rptr. 395 (Cal. Ct. App. 1987). The court, however, noted that it was not deciding whether the California Constitution required the faculty meeting to meet publicly because the issue had not been raised. A journalist may have trouble arguing that a student government meeting is subject to the open meetings act.
The California State System: The Gloria Romero Open Meetings Act of 2000, Cal. Educ. Code Secs. 89305 to 89307.4, applies to the California State University and specifically requires student legislative bodies to hold their meetings in public, as well as the meetings of a commission, committee, board, sub-board or other body created by the student organization.
The Community College System: The attorney general has found that the meetings of a community college student body association would be subject to the requirements of the Brown Act. The attorney general noted that the actions by a community college district board constitute formal action, making the student association an advisory body to the district board. Consequently, the student government association would be a legislative body of a "local agency" whose meetings would be subject to the act's requirements. Op. Att'y Gen. No. 92-508 (Sept. 16, 1992).
These statutes do not specify fines for violations, although a member who violates any of these laws could be guilty of a misdemeanor.
Colo. Rev. Stat. Secs. 24-6-401 to 24-6-402 (2009). The Colorado law does not mention student governments, but covers any advisory, policy-making or rule-making body, including a committee of any state agency or authority and including the governing boards of any state institution of higher education. A "local public body" is any public or even private body that has been delegated a governmental decision-making function. The statute states that the administration and the student government at each higher education institution shall jointly establish the fee policy for each institution. Colo. Rev. Stat. Sec. 23-1-123 (2009). Because state law gives student governments a policy-making role, it is very likely they would be covered by the open meetings law. The purpose of the statute is to keep the formation of public policy open. The public meeting laws are interpreted broadly. Cole v. State, 673 P.2d 345 (Colo. 1983).
Conn. Gen. Stat. Secs. 1-200 to 1-259 (2008). The Connecticut FOIA law requires that any political subdivision of the state hold open meetings. The Connecticut Freedom of Information Commission, an administrative body whose rulings can be appealed to a state court, ruled in 1983 that college student governments are not public agencies because they do not receive direct government funding and they do not perform a direct government function. Despite its ruling, however, the FOIC recommends that colleges and universities voluntarily open student government meetings. Until the FOIC ruling is challenged in court, journalists in Connecticut could have difficulty compelling access to student government proceedings.
Several post-1983 changes to the law might bolster the chances for opening a student meeting. A "governmental function" is (a) spending money, (b) significant involvement (although not necessarily direct) in managing a program, or (c) forming governmental policies in connection with managing a program. 1-200(11) (2008) When the FOIC decides whether an agency committee composed entirely of individuals who are not members of the agency is subject to the law, the FOIC must balance the public interest of allowing closed meetings versus open meetings. The closed meeting argument must clearly outweigh the argument for an open meeting.
Del. Code Ann. tit. 29, secs. 10001 to 10005 (2009). The meetings of any public body, including committees, must be open. A "public body" is defined as a body that is supported by or spends public funds or is charged by any other public body to advise or make recommendations. Despite its favorable language, the statute specifically excludes the activities of the University of Delaware and Delaware State College except that the boards of trustees of the various institutions will be considered "public bodies," and the meetings of the full board are open to the public. The attorney general has stated that a meeting of a subcommittee or ad hoc committee of the full board of trustees is exempt from the public meeting requirements. Op. Del. Att'y Gen. No. 00-IB08 (May 24, 2000). In another opinion, the attorney general stated that the student government at Delaware Technical and Community College was not a state agency. Op. Del. Att'y Gen. No. 85-IO08 (Apr. 17, 1985). Presumably, student government meetings would be one of the many activities excluded from the state's sunshine law.
Fla. Stat. Secs. 286.011 to 286.0115 (2009). The Florida Government in the Sunshine Act covers the meetings of any board or commission of an authority of the state or its political subdivisions at which official acts are to be taken. Because the student governments at each state university are created by state statute, Fla. Stat. Ann. 1004.26, each student government presumably is a recognized board, commission or authority of the state and would be subject to the Sunshine Act. Whether the law governs bodies that have been delegated authority is less clear. A Florida appellate court has held that when a group has been delegated the authority of the governing body, that group, be it a staff or committee, is included within the sunshine law. News Press Publ'g Co. v. Carlson , 410 So.2d 546 (Fla. Dist. Ct. App. 1982). However, in 1976 that same court ruled that a fact-finding group appointed by a junior college president was not subject to the law because of its "remoteness from the decision-making" process. Bennett v. Warden, 333 So.2d 97 (Fla. Dist. Ct. App. 1976). In 1983 the Florida Supreme Court held that a body with decision-making authority, such as a university search committee, falls under the open meetings statute even if its decision is "remote" in a chain of steps from the ultimate decision. Wood v. Marston, 442 So.2d 934 (Fla. 1983)(committee appointed by president of university to solicit applications for deanship is a "board or commission" subject to the act). Most student governments have been delegated some authority from their boards of regents to distribute university money collected from student activity fees. Under the Wood ruling, a student government body could not close a meeting simply by claiming that its decisions require ratification by higher-ups in the chain of command. In 1997 the Florida Court of Appeals for the Third District ruled that the Sunshine Law applied to a board appointed by a college purchasing director to consider and rank proposals to provide flight-training services. Silver Express v. Miami-Dade Cmty. Coll., 691 So.2d 1099 (Fla. Dist. Ct. App. 1997).
A public officer who violates the statute could be fined up to $500.
Ga. Code Ann Secs. 50-14-1 to 50-14-6 (2009). The statute provides that all meetings of an "agency" at which official action is discussed or taken must be open. The term "agency" includes departments, boards of the state and its political subdivisions. In 1973 the Georgia Supreme Court held that the sunshine law did not apply to a student activity fund committee at the University of Georgia because the law did not "encompass the innumerable groups which are organized and meet for the purposes of collecting information, making recommendations and rendering advice but which have no authority to make governmental decisions for the state." McLarty v. Bd. of Regents of the Univ. Sys. of Ga ., 200 S.E.2d 117 (Ga. 1973). A decision by the Georgia Supreme Court, however, makes it clear that where a student body does possess some degree of responsibility for taking official action on behalf of an official governing agency, it will be covered - even though the body might not fit within the Open Meetings Act's literal language. Red & Black Publ'g Co., Inc. v. Bd. of Regents , 427 S.E.2d 257 (Ga. 1993). In Red & Black , the court ruled that the meetings of a student judiciary court at the University of Georgia, a body made up only of students, responsible for hearing and adjudicating alleged violations of University rules and regulations, were subject to the Open Meetings Act because the student judiciary was the "vehicle by which the University carries out its responsibility, as directed by the Board of Regents, to regulate social organizations." Id. at 263.
In another helpful case the Court of Appeals ruled that the open records law applied even to a private hospital because it operated for the benefit of the general public when it entered into a lease with the county to provide emergency and indigent care. Northwest Ga. Health Sys. v. Times-Journal, 461 S.E.2d 297 (Ga. App. 1995). Moreover, in 1999, the legislature "put some teeth" into the existing law by expanding the definition of "meeting" to include presentation or discussion of "any public matter, official business, or policy" decisions. This expanded definition may make it easier to open student government meetings even when they only have an advisory role. Suzanne F. Sturdivant, Open and Public Meetings, 16 GA. ST. U.L. REV. 256 (1999). Therefore, even if a student government exists only to provide advice or make recommendations, a court could find it subject to the open meetings law. Where it can be demonstrated that a student government has been granted some degree of decision-making authority by the state, such as allocation and distribution of student activity fees collected by the school - a task that the school itself would be required to perform if the student government did not exist - the open meetings law almost certainly would apply.
The Georgia Supreme Court has said that courts should interpret the Open Meetings Act broadly so that it can fulfill its purpose of protecting the public and individuals from closed-door meetings. Jersawitz v. Fortson, 446 S.E.2d 206 (Ga. App. 1994); Crosland v. Butts County Bd. of Zoning Appeals, 448 S.E.2d 454 (Ga. App. 1994).
A person who knowingly and willfully violates the statute is guilty of a misdemeanor and shall be fined up to $500.
Haw. Rev. Stat. Secs. 92-1 to 92-13 (2009). The statute covers bodies of the state and its political subdivisions, including committees that are created by constitution, rule, statute or executive order to have supervision, control, jurisdiction or advisory power over specific matters. The board of regents and its committees are subject to the Sunshine Law. Op. Hawaii Att'y Gen. No. 85-27 (1985). While there are no court cases dealing with the law's applicability to a student government, Hawaii's attorney general relied on cases and attorneys general opinions from Georgia and Kentucky in ruling that student government meetings should not be subject to the open meetings law. 85 Op. Hawaii Att'y Gen. 18 (1985). That opinion said that the Associated Students at the University of Hawaii (ASUH) was not a board, agency, commission, authority, or a committee of the state or its political subdivisions that had been created by the constitution, statute, rule or executive order as defined by 92-2(1). Furthermore, the opinion stated that ASUH is not empowered to take official action on behalf of the state or its political subdivision. The opinion concluded by saying that although the ASUH is not subject to the state sunshine law, "we recognize that the ASUH, as a matter of policy may hold open meetings." The test appears to be that the board must supervise, control, exercise jurisdiction, or advise government in order to fall under the Sunshine Law. The attorney general's opinion has not yet been challenged in court.
A person who willfully violates the open meetings law shall be guilty of a misdemeanor and may be removed from the board upon conviction.
Idaho Code Ann. Secs. 67-2340 to 67-2347 (2009). Student journalists in Idaho may have a difficult time gaining access to the meetings of their student government. The statute states that all meetings of a governing body of a public agency must be open. "Public agency" is defined as any state board, commission, department, authority, educational institution or other state agency that is created by or pursuant to statute. "Governing body" is defined as having the authority to make decisions for or recommendations to a public agency regarding any matter. Under this definition, a college or university and its board of regents would be covered. The statute also applies to subagencies of the public body so long as they are created by statute or ordinance or other legislative act. Because most students governments are created by the school's board of regents instead of by statute, they may not be covered by the law. However, an argument might be made that the board of regents' creation of a student government is the type of "other legislative act" envisioned by the law. Given the traditionally restrictive interpretation of the law by Idaho courts, it is unclear whether such an argument would succeed.
Any member of a governing body who knowingly violates the statute shall be fined up to $500.
5 Ill. Comp. Stat. 120/1 to 120/7.5 (2010). Illinois' Open Meetings Act states that all meetings of public bodies shall be public meetings. "Public bodies" includes all legislative, executive, administrative or advisory bodies of the state, as well as any subsidiary body "including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue." A student government supported by tax revenue in the form of student fees, or which expends these fees appears to be covered by the law.
No cases or attorney general opinions have directly addressed whether the student government must hold open meetings. However, the attorney general has held that Eastern Illinois University is a public corporation and is subject to the open meetings law. That same opinion stated that an Eastern Illinois University athletic council, appointed by the school's faculty and student senates to advise the president, fell under the purview of the open meetings law. Op. Ill. Att'y Gen. No. S-917 (1975). A court, however, later held that the statute does not apply to the meetings of informal advisory boards at the University of Illinois. Pope v. Parkinson, 363 N.E.2d 438 (Ill. App. 3d 1977). In 1997, a court ruled that a university athletic council was an advisory body subject to the Open Meetings Act and FOIA. The court said that application of the Open Meeting Act depends primarily upon organizational structure. Here, the athletic council reports to the faculty senate, which reports to the president who reports to the board of regents, a public body created by the Illinois General Assembly. Bd. of Regents of the Regency Univ. Sys. v. Reynard , 686 N.E.2d 1222 (Ill. App. 3d 1997). It is likely, then, that a student government that formally advises the president would be subject to the statute. Even where a student government plays no part in formally advising a public official it might still be independently subject to the open meetings law as a state legislative body or committee. This argument might be enhanced where the student government controlled funds collected by the state or exercised some authority traditionally performed by a state agency.
Violation of the statute is a Class C misdemeanor punishable by a fine up to $1,500, 30 days in jail or both.
Ind. Code Secs. 5-14-1.5-1 to 15-14-1.5-8 (2009). The Indiana Open Door law requires that all meetings of the governing bodies of all public agencies be open to the public. A governing body of a public agency is the body that takes official action on public business and includes any committee appointed by the governing body that has been delegated its power. Whether the law applies to a student government is unclear. In 1986, the Indiana Court of Appeals First District held that the Open Door Law applies to committees of the board of trustees of Ball State University by relying on a section of the law explaining the intent of the law. Riggin v. Bd. of Trs. of Ball St. Univ. , 489 N.E.2d 616 (Ind. App. 1986). Although part of the language the court relied on has changed, the statute still states that its provisions are to be liberally construed. Before this decision was handed down, a county circuit court had ruled that a student senate at Ball State was not a "governing body" because its members were not appointed by the university's board of trustees or its president. SPJ v. Ball St. Univ. Senate, Cause No. C-82-5 (Grant County Circuit Court, Feb. 18, 1982). The Second District Court of Appeals ruled that the Open Door law does not apply to an animal care committee of a medical school when the committee does not get its authority from the board of trustees but through a chain that is interrupted by several individuals --; from the board of trustees to the president, then a vice-president, and then campus chancellors who ultimately appoint the campus committees and subcommittees. Robinson v. Ind. Univ., 638 N.E.2d 435 (Ind. App. 1994). A court might rule differently if the student government's authority comes more directly from the board of trustees.
Iowa Code Secs. 21.1 to 21.11 (2008). The meetings of governing bodies created by statute or executive order, governing bodies of political subdivisions or tax-supported districts and advisory boards, commissions or task forces created by an executive order of a political subdivision must be open according to Iowa's open meetings law. In addition, any bodies created by the governing bodies described above are required to be open to the public, as are the meetings of the bodies in control of athletic programs at a state university. The definition includes electronic gatherings. Iowa Code Sec. 260C.18 (2008) explicitly states that the expenditure of funds collected from students for activities shall be determined by the student government with administrative and board approval. It also requires that any increase in student activity fees is to be determined by the student government with administrative and board approval. Taken together, it seems clear that Iowa student governments would qualify as a "governing body created by statute" (the argument being that if a student government did not already exist at a school, one would have to be created in order to carry out Sec. 260C.18's specific statutory requirements) and are therefore subject to the open meeting law's provisions.
If a public body violates the law, the individual members who supported the closure may be assessed a fine between $100 and $500 in addition to court costs and attorney's fees.
Kan. Stat. Ann. Secs. 75-4317 to 75-4320(c) (2008). The statute requires that all meetings involving the affairs and business of all state legislative and administrative bodies, agencies, and political and taxing subdivisions are open to the public. Also subject to the Open Meetings Law are boards, commissions, authorities, councils, committees, subcommittees and other subordinate groups that receive or spend public funds and are supported at least in part by public funds. Despite such a relatively broad definition, a 1977 attorney general opinion stated that Kansas State University's student government was not subject to the Open Meetings Law because the law requires that a body be either an administrative or legislative body of the state or a subordinate entity and it must be supported in whole or in part by public funds. Although the Kansas State Student Senate is supported by public funds (student activity fees), the attorney general ruled that it was not a legislative or administrative body because its role is advisory and it cannot make official decisions like those of the university president or the board of regents. 174 Op. Kan. Att'y Gen. 225 (1977). To date, the attorney general's opinion remains unchallenged.
Ky. Rev. Stat. Ann. Secs. 61.805 to 61.850 (2010). According to the Kentucky Open Meetings Act, the term "public agency" includes the policy-making board of an institution of education, any school district, any committee, subcommittee, ad hoc committee, subagency or advisory board created pursuant to statute, executive order, local ordinance or resolution or other legislative act. In addition, the Open Records Law defines a public agency as any body that derives at least 25 percent of its funds expended by it "from any state or local authority funds." Ky. Rev. Stat. 61.870(1)(h). Nevertheless, a 1974 attorney general opinion concluded that the Murray State University Student Government Association was not a public body covered by the state open meetings law, despite its receipt of funds from a student activities fee charged by the state university. The opinion said that the association should be considered a private association. Op. Ky. Att'y Gen. No. 74-639 (Aug. 26, 1974). To date, no lawsuits have challenged the attorney general's opinion.
La. Rev. Stat. Ann. Secs. 42:4.1 to 42:13 (2009). The Open Meetings Law applies to the governing bodies of authorities of the state and its political subdivisions, including any committee or subcommittee of any of these bodies where such a body has policy-making, advisory or administrative functions. A 1994 opinion by the attorney general's office concluded that the Louisiana State University student government is a public body under the Open Meetings Law. Op. La. Att'y Gen. No. 1994-333 (Aug. 22, 1994). However, the attorney general's office previously has flip-flopped its position on this issue in 1986 (Op. La. Att'y Gen. No. 86-642-A (Nov. 25, 1986)), 1981 (Op. La. Att'y. Gen. No. 81-181 (1981)) and 1978 (Op. La. Att'y Gen. No. 78-1059 (1978)). The attorney general reached its most recent conclusion because the student government association is a university-sanctioned body, its budget comes from student fees, and the primary purpose of the student government is to represent the students, according to the student government association's constitution.
Me. Rev. Stat. Ann. tit. 1, secs. 401 to 412 (2009). According to Maine's Freedom of Access law, meetings involving the transaction of any business affecting any citizen of the state by the Boards of Trustees of the University of Maine System, the Maine Maritime Academy and Maine Community College System, and any of their committees and subcommittees, are open to the public. While the statute does not specifically mention student governments as one of the bodies covered, it does not specifically exempt them either. This is significant because the Maine Supreme Court held in 1989 that the Freedom of Access Act "should be liberally construed and applied to promote its underlying purpose; corollary to such liberal construction is necessarily strict construction of any exemptions to require public disclosure." Guy Gannett Publ'g Co. v. Univ. of Me. , 555 A.2d 470 (Me. 1989).
The law allows a fine of up to $500 for willful violations of the law, which the attorney general or his or her representative may impose. Scola v. Town of Sanford , 695 A.2d 1194 (Me. 1997).
Md. Code Ann., State Gov't Secs. 10-501 to 10-512 (2010). According to the statute, meetings of every public body, when it is exercising legislative, quasi-legislative or advisory functions, must be open. A "public body" must consist of at least two people and must be created by: (1) the Maryland constitution, (2) a state statute, (3) a county or municipal charter, (4) an ordinance, (5) a rule, (6) a resolution, (7) a bylaw, (8) an executive order by the governor or (9) an executive order by the chief authority of a subdivision of the state. According to the Open Compliance Board, a three-member board established under the Open Meetings Law to educate bodies about the law, a student government association is a public body only if the bylaws of another public body created it. Thus, the board found that the student government association at St. Mary's College was not a public body because the school's bylaws did not create the association. Compliance Board Opinions 99-1 (Jan. 7, 1999) reprinted in 2 Official Opinions of the Open Meetings Compliance Board. The Board also has stated that receiving public funds does not make an entity a public body. Compliance Board Opinion 97-3 (Apr. 16, 1997), reprinted in 1 Official Opinions of the Maryland Open Meetings Compliance Board. Whether a student government association is open may therefore depend on whether it was created under the public university's bylaws or one of the other sources listed above. No courts have ruled on the issue, nor have they considered whether the board's interpretation is correct.
A member of a public body that violates the statute could be ordered to pay a civil penalty up to $100.
Mass. Gen. Laws ch. 30A, secs. 11A to 11A 1/2 (state) ch. 34, secs. 9F to 9G (county), ch. 39, secs. 23A to 23C (municipal) (2009). (The previous sections were repealed effective July 1, 2010, and the applicable statutory provisions for state, county, and municipal entities were replaced with Mass. Gen. Laws ch. 30A, secs. 18 to 25).
In Massachusetts, all meetings of a "governmental body" are open to the public. The definition of "governmental body" includes a state board, committee, special committee, subcommittee or commission, "however created or constituted" within the executive branch of the commonwealth, governing board or body of any authority established by the general court "to serve a public purpose."
Although the attorney general has ruled that the statute applies to the University of Massachusetts, Op. Mass. Att'y Gen. No. 12 (1976-77), the issue of whether the law applies to student government associations has never been addressed. However, a 1991 court of appeals decision suggests that a student government association may be subject to the law. At issue was whether meetings of an animal-care committee created by the board of trustees was open to the public. Factors the court considered were how the committee was created, whether the committee makes decisions, whether a public policy matter is under consideration and whether the committee serves a "public purpose." In the case of the animal-care committee, the court held that the committee did not consider public policy matters in order to arrive at a decision on public business. Medlock v. Bd. of Trs. of the Univ. of Mass., 580 N.E.2d 387 (Mass. App. Ct. 1991).
Whether student governments must follow the Open Meetings Law would probably hinge on two questions. First, does the student government have any power (decision-making or advisory) over a public policy matter? The answer presumably is yes if the student government association has the power to distribute funds and establish policy affecting students. Second, is the student government's authority derived from the board of trustees or some other "governing body?" Again, because most student governments disburse student fees collected by the school, some sort of official delegation of authority presumably exists. If the answer to both of these questions is yes, a strong argument can be made that the open meetings law should apply and student government meetings held open to the public.
Sec. Mich. Comp. Laws Secs. 15.261 to 15.275 (2009). According to Michigan law, meetings of any state and local legislative or governing body must be open. This includes a board, commission, committee, subcommittee, authority or council that is empowered by the state constitution, statute, charter, ordinance, resolution or rule to exercise governmental or proprietary authority or perform such a function. Additionally, the public records act defines a public body as any body "created by state or local authority or which is primarily funded by or through state or local authority." See Mich. Comp. Laws Sec. 15.232 (2009). In 1999, Michigan's Supreme Court held that the law does not apply to a presidential search committee because "application of the OMA to the governing boards of our public universities is likewise beyond the realm of legislative authority," even though the board of trustees told the committee to "observe" the requirements of the Open Meetings Act. Federated Publ'n Inc. v. Bd. of Trs. of Mich. St. Univ., 594 N.W.2d 491 (Mich. 1999). The attorney general also has opined that a student advisory committee at a public university would not be subject to the sunshine laws. Op. Att'y Gen. No. 6053 (April 13, 1982). Thus, whether a student government must hold open meetings under this act will depend largely on its relationship to the school's board of trustees and on whether the student government's role is solely advisory. Usually, student governments are created by the boards of trustees of the various colleges and university and not by statute, charter, ordinance or any of the other legal instruments mentioned above. So a student government is unlikely to meet the technical requirements of a committee, subcommittee, authority or council under the law. Nevertheless, if it can be demonstrated that a student government has been delegated significant decision-making authority over traditional governmental functions, a court might be persuaded that the law's purpose of governmental accountability requires open meetings.
Minn. Stat. Secs. 13D.01 to 13D.07 (2009). The Open Meetings Law applies to a state agency, board, commission or department "when required or permitted by law to transact public business in a meeting," as well as the committee, subcommittee, board, department or commission of a public body. In 2004, the Minnesota Supreme Court held that the University of Minnesota Board of Regents had to make public its search process for a new university president because the University is a public body under Minnesota's Open Meeting Law. Star Tribune Co. v. Univ. of Minn. Bd. of Regents, 683 N.W.2d 274 (Minn. 2004). The court explicitly rejected the Michigan Supreme Court's "legislative authority" reasoning in Federated Publ'n Inc. (cited above) that prevented Michigan's open meeting law from applying to the governing boards of that state's public universities. A Minnesota lower appeals court held that a committee providing advice to a board of regents regarding the selection of a new university president was not subject to the state open meetings law. The court pointed out that the committee was not "the governing body" of the university, and based its decision on factors such as whether the committee had authority to set policy or make the final decision. Minn. Daily v. Univ. of Minn., 432 N.W.2d 189 (Minn. App. 1988). The applicability of the open meetings law to a student government association may depend therefore on whether the association is advisory in nature and whether it has the authority to set policy or make final decisions. In addition, the open meetings law may apply if a student government association can be considered a "subcommittee, board, department or commission" of a public Minnesota university.
Any person who intentionally violates the open meetings law could be fined up to $300.
Miss. Code Ann. 25-41-1 to 24-41-17 (2009). The Mississippi statute covers any "policy-making" entity or committee thereof of the state or its political subdivisions when the entity is created by statute or executive order and is supported by or expends public funds. In 1985, the state supreme court held that meetings of the Board of Regents of State Institutions of Higher Learning must be open to the public, including all the deliberative stages of the decision-making process that lead to formation and determination of public policy. One of the meetings at issue in this case was between the board and student government officials. Bd. of Trs. of St. Insts. of Higher Learning v. Miss. Publishers Corp. , 478 So.2d 269 (Miss. 1985). The attorney general has stated that an advisory committee of a local school district's board of trustees must hold open meetings because the statute includes advisory committees. MS AG Op., Moore (Jan. 31. 1997). A student government that advises the board of trustees on student matters or sets policies for the student body, such as how to distribute student fees, would appear to be covered under the statute.
Violations of the open meetings law are punishable by a $100 fine.
Mo. Rev. Stat. Secs. 610.010 to 610.035 (2009). The Missouri law defines public governmental bodies to include "any body, agency, board, bureau, council, commission, committee, board of regents or curators of any institution of higher education that is supported in whole or part from state funds." In 1987, the attorney general ruled that the state's Sunshine Law applies to a student government association when it is delegated power by the board of regents or when it exercises de facto authority approved or accepted by the board of regents. 87 Mo. Op. Att'y Gen. No. 61 (July 31, 1987). A public body that violates the law is subject to a fine of up to $5,000.
Mont. Const. Art. II Sec. 9; Mont. Code Ann. Secs. 2-3-201 to 2-3-221 (2009). Montana's "sunshine" statute is similar to a provision in the Montana state constitution that says that, generally speaking, the meetings of governmental bodies of the state and its political subdivisions, or meetings of agencies supported by or spending public funds, are required to be open. In addition, the statute says that any committee or subcommittee appointed by a public body or an association, for the purposes of conducting business that is within the jurisdiction of that agency, is subject to the requirements of the act. Because most student governments are supported at least partially by public funds, they would be subject to the law.
Neb. Rev. Stat. Secs. 84-1408 to 84-1414 (2009). Nebraska's law states that "every meeting of a public body shall be open to the public...." A "public body" is defined as a governing body created by the state or executive department of the state and all advisory committees of the bodies covered by the act. In Meyer v. Bd. of Regents of the Univ. of Neb., 510 N.W.2d 450 (Neb. Ct. App. 1993), an appeals court assumed that the board of regents was subject to the law. Additionally, the attorney general stated in a 1988 opinion that the Open Meetings Law applied to the University of Nebraska's board of regents. Op. Neb. Att'y Gen. No. 85-104 (1988). If a student government serves in an advisory role to the board of regents, then it must hold open meetings as well. The law also indicates that where a subcommittee is delegated authority to take formal action on behalf of its "parent body" the law should apply to that subcommittee. It is likely, therefore, that student governments would be open because they are usually delegated some board duties such as distributing student activity fees to campus organizations.
Any member of a public body who knowingly violates the law "shall" be guilty of a misdemeanor.
Nev. Rev. Stat. Secs. 241.010 to 241.040 (2009). A "public body" under the Nevada open meetings law is defined as any administrative, advisory, executive or legislative body of the state or a local government that spends, or is supported at least in part by, tax revenue or that advises or makes recommendations to any entity that spends or is supported at least in part by tax revenue, including any board, commission, committee, subcommittee or other subsidiary of that body. Nevada is one of the few states that specifically mention student governments in its sunshine law. Section 241.038 provides that the Board of Regents of the University of Nevada shall establish regulations providing for access to student government meetings. These regulations are found at the Web site of the University & Community College System of Nevada (UCCSN) at www.nevada.edu. Title 4 UCCSN Code, Chapter 20(B)(3) provides that "[t]he meetings of any multi-member executive or legislative body, committee, subcommittee, commission or subsidiary thereof a student government shall be held in accordance with the provisions of the Nevada Open Meetings Law...." The regulations also list the types of sanctions that will be enforced against those who violate the open meeting requirements.
N.H. Rev. Stat. Ann. Secs. 91-A:1 to 91-A:9 (2009). New Hampshire has a very broad open meetings law. It states that any public proceeding shall be open to the public. The definition of public proceeding includes any board or commission of any state agency or authority "including the board of trustees of the university system of New Hampshire and any committee, advisory or otherwise, established by such entities." There has been no litigation on whether the statute applies to a student government. But based on the broad language, a court would likely hold that student governments are subject to the act.
N.J. Stat. Ann. Secs. 10:4-6 to 10:4-21 (2010). New Jersey's Open Public Meetings Act applies to public bodies organized under the laws of the state and "collectively empowered as a voting body to perform a public governmental function affecting the rights, duties, obligations, privileges, benefits or other legal relations of any person or collectively authorized to spend public funds . . . ." In 1988, the New Jersey Supreme Court held that a state college governing board association --; a non-profit statutory corporation that obtained its revenues from an assessment on member state colleges --; was a "public body" subject to the Open Meetings Act. The money received by the state colleges came from a public fund and the portion of such funds forwarded to the association, the court ruled, remained public funds. Council of N.J. St. Coll. Locals v. N.J. St. Coll. Governing Boards Ass'n , 545 A.2d 204 (N.J. 1988). It therefore seems likely that a student government that receives public funds from its college or university would be subject to the act as well.
In August 2009, the student government at Montclair State University amended its bylaws to comply with New Jersey's Open Public Meetings Act as part of a settlement that ended a lawsuit filed by the school's student newspaper, the Montclarion, alleging violations of the law by the SGA. SGA officials at the school agreed to ensure minutes are kept during closed meetings and to provide 24-hour notice to the public of a closed meeting.
Anyone who knowingly violates the law could be fined $100 for the first offense and between $100 and $500 for subsequent violations.
N.M. Stat. Secs. 10-15-1 to 10-15-4 (2009). The statute states that the meetings of any board, commission, administrative adjudicatory body or other policy-making body of any state agency or their political subdivisions that are held to formulate policy, discuss public business or take action within their original or delegated authority must be open. There are few cases involving the Open Meetings Act in general and no cases dealing specifically with whether a student government is subject to its provisions. Nevertheless, the reasonably broad language above would seem to cover a student government that has been delegated any policy-making authority by the board of regents. And the stated purpose of the law, which reads that "all meetings of any public body . . . shall be public meetings" indicates a reasonably strong presumption in favor of openness.
N.Y. Pub. Off. Law Secs. 100 to 111 (Consol. 2010). New York's Freedom of Information Law applies to "public bodies" meeting for the purpose of conducting public business. The law defines "public body" as any entity for which a quorum is required to conduct public business that performs a governmental function for the state, agency or department of the state, including a committee or subcommittee of such public bodies. In 2005, the Court of Appeals of New York held that a City University of New York College Senate comprised of faculty members, students, staff and the president and deans of the university was subject to the open meetings law because it was "charged with responsibilities delegated by the New York Legislature to the CUNY Board and [the] Senate function[ed] as a proxy for the faculty councils authorized by the CUNY bylaws." Perez v. City Univ. of N.Y., 840 N.E.2d 572 (N.Y. 2005). Among other powers, the Senate formulated new policy recommendations and reviewed existing policies, "it must [have been] consulted prior to any additions or alterations to the College's divisions[,] and it [was] the only body that [could] initiate changes to the College Governance Chart." In 1999, the Court of Appeals of New York held that an association comprised of administrators, faculty members and students at City University of New York that reviewed budgets, allocated student activity fees and authorized disbursements was a public body and therefore subject to the FOI law. Smith v. City Univ. of N.Y. , 708 N.E.2d 983 (N.Y. 1999). The court noted that the association was a formally chartered entity with officially delegated duties and organizational attributes, and it had "real and effective decision-making power." Because most student governments have similar attributes to the organizations in these two cases, a court would likely agree that student governments must comply with open-government laws. Moreover, New York's Committee on Open Government, created by the law to advise agencies and municipalities and to issue rules and regulations with respect to the FOI law, said in an advisory opinion that because student governments determine the manner in which mandatory student fees are distributed, conduct public business and perform a governmental function on behalf of their school, they are therefore public bodies within the scope of the open meetings law. Comm. on Open Gov't Advisory Op., Mar. 29, 1990.
N.C. Gen. Stat. Secs. 143-318.9 to 143-318.18 (2009). Public bodies in North Carolina required to hold open meetings include any "elected or appointed authority, board commission, committee, council, or other body of the state, or . . . constituent institutions of the University of North Carolina . . . that (i) is composed of two or more members and (ii) exercises or is authorized to exercise a legislative, policy-making, quasi-judicial, administrative, or advisory function." In 1998, the North Carolina Court of Appeals held that an Undergraduate Court meeting at the University of North Carolina at Chapel Hill was a "public body." DTH Publ'g Corp. v. The Univ. of North Carolina at Chapel Hill , 496 S.E.2d 8 (N.C. Ct. App. 1998). The court's reasoning included the fact that the Undergraduate Court's authority could be traced up a chain of multiple links all the way up to the board of governors of the university, which received its authority from North Carolina statute. The court further noted that the court was authorized to exercise administrative or advisory function. A court likely would agree that a public university's student congress or student government association is a public body because it is a link in this chain of authority and most student government associations exercise administrative or advisory functions. The 1998 decision appears to conflict with a 1977 North Carolina Supreme Court decision that the Board of Governors at the University of North Carolina was not itself a "governmental body" of the state. Student Bar Ass'n Bd. of Governors v. Byrd , 239 S.E.2d 415 (N.C. 1977). Although still on the books, the 1977 decision is likely no longer valid because the state's definition of public body has changed significantly since the case was decided, including the addition of the phrase "exercises or is authorized to exercise a legislative, policy-making, quasi-judicial, administrative, or advisory function."
N.D. Const. Art. XI, Sec. 5; N.D. Cent. Code Secs. 44-04-19 to 44-04-21.3 (2009). North Dakota requires all meetings of a public entity to be open to the public. The generally broad language of the statute provides three definitions for public entity: (1) a public or governmental body of the state that exercises public authority or performs a government function; (2) a public or governmental body of any political subdivision that exercises public authority or performs a governmental function and (3) organizations or agencies supported in whole or in part by public funds or expending public funds. Similarly, North Dakota's Constitution states that "all meetings of public or governmental bodies, boards, bureaus, commissions or agencies of the state, or organizations or agencies supported in whole or in part by public funds, or expending public funds, shall be open to the public." Neither caselaw nor attorney general opinions have addressed whether the law applies to student governments. Because the statute's language is exceptionally broad and North Dakota courts have a long tradition of interpreting the law expansively, a student government that performs a government function and receives money from a university through student fees would likely be considered a "public entity" and thus subject to the open meeting requirements.
A person who violates the open meetings law could be the subject of a civil action.