V. Enforcement

V. ENFORCEMENT

A. Who Can Challenge?

In many states, the attorney general, state's attorney, or courts are authorized to enforce the open meetings and open records laws. That express authorization may not be exclusive, however, and other persons may also be entitled to enforce the law.¹⁸² For example, in some states, citizens can challenge the propriety of a public body's adherence to the sunshine laws. The public, however, is typically limited to injunctive, declaratory, or mandamus relief since voiding a governing body's final actions is a drastic measure reserved for the courts. Moreover, members of the press may have the same legal rights as individual citizens in challenging the open meetings and records laws.¹⁸³ A member of a governing body who seeks to void an action by that body by alleging a violation of open meetings law may or may not have legal standing to bring that claim in court or have the right to that remedy.

The issue for citizens also is usually one of standing. First, nonresidents must establish that they have a sufficient interest and relation to the subject matter if they are to successfully challenge a foreign public entity. Provisions in a government's open meetings law that entitle any person to receive notice or attend meetings could open the door to potential challenges from nonresidents.¹⁸⁴ Under this reasoning, courts also found that news media from a different jurisdiction may freely attend meetings and challenge violations of the open meetings laws.¹⁸⁵ Second, standing is not necessarily reserved for citizens who sustain a particularized injury. While Indiana clearly establishes that the "plaintiff need not allege or prove special damage different from that suffered by the public at large," ¹⁸⁶ Connecticut requires plaintiffs to satisfy a two-part test to establish standing: "(1) a specific personal and legal interest in the [agency's] decision; (2) a special and injurious effect on that specific interest." ¹⁸⁷

B. Who Can Be Sued?

The municipality is a necessary entity to be sued, but the more interesting issues concern whether officials or third parties may be held liable for open meetings violations. Individual members of the government are generally not considered indispensable parties, unless a specific member is alleged to have breached the open meetings law.¹⁸⁸ For instance, at least six states impose penalties for any person who attends or remains at a meeting in secret or in violation of the rules governing executive session.¹⁸⁹ The incentive for officials under this policy is to leave a potentially offensive meeting, thereby avoiding liability. However, a better approach is "to exempt from liability an official who voted to prevent the violation so that the member may remain to continue to urge compliance with the law and to bear witness to the violation." ¹⁹⁰

Liability of newly elected or appointed members who have yet to start their term depends on whether an individual satisfied the statutory requirements for membership. An official's term generally does not start until she has taken the oath of office. However, other states require newly elected members "to conform [their] conduct to the requirements of [the open meeting law] . . . as though they have already assumed office." ¹⁹¹

An outside, nongovernmental third-party defendant may be indispensi-ble to a plaintiff's claim if administrative or judicial action taken against the public body will affect a nonmember's rights. Nonmembers exposed to potential liability include parties to contract, developers, or even employees at the center of a disciplinary hearing. Potentially, a nonmember overseeing a public body could also be named as a party to litigation.¹⁹² For example, the president of the University of Georgia, as the executive head for the school, was held to be a proper third-party defendant in a dispute regarding whether the Organization Court that enforced the university's fraternities and sororities rules was subject to the sunshine laws.¹⁹³

C. Remedies

Requiring that meetings be made open or making meeting minutes available to the public are two cures for open meetings violations, especially for infringements involving improper executive proceedings. Reopening closed meetings held in error requires the government to "reenact the disputed decision in conformity [with the open meetings laws]." ¹⁹⁴ Reaffirming the offensive meetings' final decision is not acceptable; instead, before issuing another final action, the government must ". . . give substantial reconsideration [of the item] at a meeting [in compliance with the sunshine laws]." ¹⁹⁵Release of minutes or transcripts for closed proceedings is the preferred remedy for federal open meetings law violations instead of invalidation of agency action.¹⁹⁶ Many states follow the federal approach, especially when there is a transcript, tape recording, or other meaningful record of closed proceedings.¹⁹⁷ For example, the Oklahoma statute provides that "a willful violation of the provisions governing executive session will cause the minutes and all other records of the executive session, including tape recordings, to be immediately made public." ¹⁹⁸

Injunctive relief is typically available either through express provision in the open meetings laws or under generally applicable law. For example, in Clearwater v. Independent School District No. 166, a Minnesota court emphasized "[w]hile the open-meeting law is devoid of any authorization or directions for injunctive relief, the supreme court has concluded that it may be appropriate for a district court to grant an injunction under that law." ¹⁹⁹ Moreover, that court cautioned that injunctions against a governing body should serve the "policy and purpose expressed by legislature," and must be "so tailored that the defendant knows with reasonable certainty what it is restrained from doing." ²⁰⁰ In Clearwater, even though the court affirmed that the school board held an illegal closed meeting, the plaintiff was denied injunctive relief because she failed to justify "why an injunction against closed meeting was needed or how it would serve the policy or purpose of the open meeting laws." ²⁰¹

Several issues arise concerning the propriety of injunctive relief in ameliorating an open meetings violation. First, proving irreparable harm may not be necessary for the court to award an injunction. In Nevada, an injunction "[m]ay be issued without proof of actual damage or other irreparable harm sustained by any person." ²⁰² Meanwhile, in South Carolina "a violation of [the open meetings laws] must be considered to be an irreparable injury for which no adequate remedy at law exists." ²⁰³

A second issue worth examining is whether injunctive relief is available for past actions infringing on the open meetings laws. In Shapiro v. San Diego, the California appellate court thoroughly examined whether the right of enforcement extended only to present and future actions and violations or to past ones as well.²⁰⁴ The plaintiff challenged a series of closed sessions held by the city council regarding real estate negotiations for a ballpark. The lower court found that the city's notices and agendas inadequately informed the public about the business items to transpire in closed session and the discussions themselves exceeded the scope of what was actually posted.²⁰⁵ On appeal, the city argued that the injunction was incorrectly predicated on the council's past meeting practices, contrary to the state's open meetings laws, which provide that injunction is proper only when founded on "present violations of the Act [that] are occurring, or that future violations of the Act are threatened." ²⁰⁶ However, the court concluded that the open meetings laws "authorize injunctive relief based on a showing of 'past actions and violations that are related to present or future ones.' " ²⁰⁷...