Tim Schram, Chairman
AGO 17-4
No. 17-004
Nebraska Attorney General Opinions
State of Nebraska office of the Attorney General
June 5, 2017
SUBJECT:
Application of the Open Meetings Act in Certain Circumstances
REQUESTED
BY: Tim Schram, Chairman Nebraska Public Service Commission
WRITTEN
BY: Douglas J. Peterson, Attorney General, Leslie S. Donley,
Assistant Attorney General
You
have requested an opinion from this office as to whether the
Open Meetings Act, Neb. Rev. Stat. §§ 84-1407 to
84-1414 (2014, Cum. Supp. 2016) ("Act"), requires
the Public Service Commission ("Commission") to
discuss certain issues in a public meeting "in order to
have a quorum of Commissioners present for those
discussions." You indicate that the Commission would
like to discuss these issues collectively, but needs guidance
as to whether the Act requires those discussions to be open
to the public. Your opinion request letter includes a list of
five issues that you wish us to consider, as follows:
(1) Discussion of internal management of the agency
concerning job responsibilities and duties of staff;
(2) Informal budget discussions with various departments and
preparation of the proposed budget;1
(3) Internal control policies and procedures including but
not limited to, processing and managing operations and
accounting functions;
(4) Standard operating procedures in various departments; and
(5) Security procedures.
You
have asked us to give our opinion on each issue presented, if
possible. Our responses to your inquiries are set forth
below.
ANALYSIS
Neb.
Rev. Stat. § 84-1408 (2014) of the Open Meetings Act
provides:
It is hereby declared to be the policy of this state that the
formation of public policy is public business and may not be
conducted in secret.
Every meeting of a public body shall be open to the public in
order that citizens may exercise their democratic privilege
of attending and speaking at meetings of public bodies,
except as otherwise provided by the Constitution of Nebraska,
federal statutes, and the Open Meetings Act.
The Act
is a statutory commitment to openness in government.
Wasikowski v. Nebraska Quality Jobs Board, 264 Neb.
403, 648 N.W.2d 756 (2002); Steenblock v. Elkhorn
Township Board, 245 Neb. 722, 515 N.W.2d 128 (1994);
Grein v. Board of Education of the School District of
Fremont, 216 Neb. 158, 343 N.W.2d 718 (1984). The Act
applies to all public bodies listed in Neb. Rev. Stat. §
84-1409(1 )(a), including governing bodies of the agencies of
the executive branch of the State of Nebraska. Thus, the
Commission is subject to the Act. Neb. Rev. Stat. §
84-1409(1)(a)(ii) (2014); Johnson v. Nebraska
Environmental Control Council, 2 Neb.App. 263, 509
N.W.2d 21 (Neb. Ct.App. 1993). Generally, no meeting can
occur under the Act without a quorum of the public body
present.
2 Under Neb. Rev. Stat. § 84-1409(1
)(b)(i), a public body subject to the Act does not include a
subcommittee of the public body except when a quorum of the
public body is present at the subcommittee meeting or
"such subcommittees are holding hearings, making policy,
or taking formal action on behalf of their parent body . . .
." Public bodies are not subject to the Act when
"conducting judicial proceedings."
[3] Neb. Rev. Stat.
§ 84-1409(1)(b)(ii).
The Act
defines "meeting" as "all regular, special, or
called meetings, formal or informal, of any public body for
the purposes of briefing, discussion of public business,
formation of tentative policy, or the taking of any action of
the public body[.]" Neb. Rev. Stat. §
84-1409(2) (2014) (emphasis added). The secret formation of
public policy forbidden by the Open Meetings Act is the
formation of public policy as a group. Schauer at
447, 786 N.W.2d at 926; City of Elkhorn at 881, 725
N.W.2d at 806. Even though there is a quorum of members
present, there can be no meeting under the Act if there is no
interaction or discussion among members of the body regarding
policymaking for the public body. Schauer at 447,
786 N.W.2d at 926.
In our
enforcement capacity over the Act, this office has indicated
on multiple occasions what constitutes a "meeting"
subject to the Open Meetings Act. In this regard, we have
stated that two things must be present for a meeting to occur
under the Act. First, a quorum of a public body must be
present. Second, the public body must engage in at least one
of the activities included in the definition of
"meeting" set out in § 84-1409(2). In the
absence of either element, we have concluded that no
"meeting" of a public body has
occurred.
4
Your
question to this office suggests that there may be instances
when it would be appropriate for all five Commission members
to discuss Commission business outside of the requirements of
the Act. However, the only time such an arrangement would be
permissible is on those occasions where the Commission is
acting in a quasi-judicial manner. In that context, we have
considered the list of issues the Commission wishes to
discuss, i.e., staff...
