UTAH OPEN & PUBLIC MEETINGS ACT

Utah Code §§ 52-4-101 et seq.

​

​

Disclaimer

• I do not represent any public entity or public body present here. Please consult your county or city attorney for specific legal advice.

What is OPMA?

• OPMA provides requirements for conducting meetings of public officials, who have the authority to make policy and budget decisions in the public’s interest.
• It requires an open deliberative process before a public body votes on matters under its jurisdiction.
• ALL votes are taken in public.

What is a Public Body?

Any administrative, advisory, executive, or legislative body of the state or its political subdivisions that:

1. Is created by the Utah Constitution, statute, rule, ordinance, or resolution;
2. Consists of two or more individuals;
3. Expends, disburses, or is supported in whole or in part by tax revenue; and
4. Is vested with the authority to make decisions regarding the public’s business.

​

What is a Meeting?

A gathering of a public body or specified body “with a quorum present” convened “for the express purpose of acting as a public body or specified body” to receive comment about, deliberate about, or take action upon a relevant matter. Utah Code § 52-4-103(5).

​

Key terms: “quorum” and “relevant matter”

​

​

What is a Quorum?

A simple majority of the membership of a public body, unless otherwise defined by applicable law.

What is a Relevant Matter?

A matter “within the scope of the authority of a public body or specified body.”

​

This is very broad. Any time there’s a quorum, we can assume there will at least be discussion of a “relevant matter.” Because of this, I always recommend erring on the side of transparency.

When in doubt, post notice.

​

NOTE: If a body has both legislative and executive responsibilities, a relevant matter does not include “a managerial or operational matter”

Example: City council in a five-member form of government (10-3b-403)

NOTICE and AGENDA

CLASS A NOTICE

• All public bodies and specified bodies
• 63G-30-102(1)

​

CLASS B NOTICE

• Applies to certain municipal meetings and meetings of taxing authorities
• 63G-30-102(2)

​

​

NOTICE

CLASS A NOTICE

• At least 24 hrs. in advance of meeting;
• Posted on Utah Public Notice Website;

​

CONT.

• Posted on public body’s official website IF the body has both an official website and an annual budget of at least $250K; and

NOTICE

CLASS B NOTICE

• All Class A notice requirements
• In addition:
• Mailings to residents in “affected area”; and
• Mailings to specific people when required by statute

​

AGENDA

• Posted with notice;
• Must list items with “reasonable specificity” (an average person would be on notice as to all topics of discussion and action planned for the meeting).

Records of Open Meetings

Do we have to keep minutes and/or recordings?

• YES TO BOTH!
• Written minutes will be the official record.
• Both written minutes and audio recording are public records.

Written Minutes

• Date, time, and place of meeting;
• Names of members present and absent;
• Substance of all matters proposed, discussed, or decided by the public body which may include a summary of comments;
• NOTE: Does not have to be a word-for-word transcription
• Record, by individual member, of each vote taken by the public body;
• NOTE: OPMA doesn’t require a roll-call vote, but it’s worth considering. It makes it easier to comply with this requirement
• Name of each person who makes a public comment and the substance of the comment; and
• Any other information that is a record of the proceedings of the meeting that any member requests be entered in the meetings or recording.

Posting Approved Minutes and Audio Recordings to Public Notice Website

Pending Minutes:

Specified local public bodies (legislative bodies of cities and towns) and AOGs – must make pending minutes available to public in a reasonable amount of time.

Approved Minutes:

Specified local public bodies – Post on the PNW within 3 business days of approval.

AOGs – Post to PNW in 3 business days or post on the PNW a link to another website where the approved minutes are kept

Audio Recordings:

Specified local public bodies – must make audio recording available to public within 3 business days after meeting but no requirement to post.

AOGs – Make audio recording available to public in 3 business days

Conducting the Votes and Associated Discussion

OPMA does not govern the voting process

• Who may make a motion
• How to conduct discussion after a motion is made
• Whether the chair must grant permission to members to speak

​

All these things are for the public body to decide.

• Policies
• Administrative rules (if allowed—consult your counsel)

Electronic Meetings

An electronic meeting occurs when at least one member of the public body attends electronically (video or audio), even if the majority attend in person.

• The public body must adopt resolution, rule, or ordinance governing the use of electronic meetings. (52-4-207(2))
• Notice requirements still apply.

Do we have to provide a physical anchor location?

• Not if all the members of the public body attend electronically (52-4-207(5)(e))
• Exception: Body must provide an anchor location if it receives a written request at least 12 hours before the start of the meeting. (52-4-207(4)(a))
• If there’s an anchor location, the body MAY provide the public an electronic attendance link (52-4-207(4)(b)); if no anchor location, the body MUST provide the public an attendance link

​

Electronic Message Transmissions

The Open Public Meetings Act does not restrict members of a public body from transmitting an electronic message to other members of the public body when the body is not

in an open meeting. (Still, avoid quorum discussion!)

Emergency Meetings

Due to unforeseen circumstances that must be articulable.

• An example might be a broken water line that cannot wait for the next scheduled meeting.
• Emergency!

Requires best notice practicable.

Cannot be held unless (1) an attempt has been made to notify all members of the public body and (2) a majority of the members approve the emergency meeting.

• A public body may close a meeting under certain circumstances.
• 52-4-205 lists all the reasons for closing an open meeting.
• Process:
• A quorum must be present at the open meeting.
• A motion to close the meeting must be made, naming the specific statutory reason for closure.
• Two-thirds of the quorum must approve the closed meeting.

�

​

Closed Meetings

Reasons a Meeting May be Closed - 52-4-205�(Not an exhaustive list)

1. To discuss character, professional competence, or physical or mental health of an individual (doesn’t require recording if the chair signs an affidavit after);

2. To discuss pending or reasonably imminent litigation;

3. To discuss the purchase, exchange, or lease of real property, if public discussion would disclose the appraisal value or prevent the transaction on the best possible terms;

4. To discuss the sale of property, if public discussion would disclose the appraisal value or prevent transaction on best possible terms as long as there’s public notice of sale and terms are disclosed before the sale; and

5. To discuss investigative proceedings regarding allegations of criminal misconduct; and

​

• In most cases, a recording must be made, and written minutes may also be made. These are protected records under GRAMA.
• If the closed meeting is held to discuss character, competence, or physical or mental health of an individual, no recording is required (“personnel matters”).
• Instead, the presiding member of the public body executes a sworn statement that the sole purpose of the closed meeting was to discuss these issues.
• NO VOTES ARE TAKEN IN CLOSED MEETINGS (except an optional vote to end the closed meeting)

�

​

Record of Closed Meetings

What is Forbidden During a Closed Meeting?

In short: Everything but discussion. You may not:

• Approve an ordinance, resolution, rule, regulation, contract, or appointment.
• Take final action: Final votes must be open and on the record.

What Happens if Someone Violates OPMA?

A court can void any action in violation of the law:

• Sometimes a violation can be cured by discussing and taking a public vote in a subsequent meeting.
• May have to pay court costs and attorney fees.
• “In addition to any other penalty under this chapter, a member of a public body who intentionally violates or intentionally abets or advises in violation of the closed meeting provisions of this chapter is guilty of a class B misdemeanor.” (6 months in jail and/or $1,000 fine)

Remedies & Enforcement

Voiding final action

• Any final action taken in violation of Section 52-4-201, 52-4-202, 52-4-207, 52-4-208, or 52-4-209 is voidable by a court of competent jurisdiction.
• Must file suit to void final action within 90 days of the action. (If the alleged violation involves bonds, notes, or other evidences of indebtedness, then 30 days.)

Who can enforce OPMA?

• Attorney General and County Attorneys
• Any person denied a right by the action taken may sue to compel compliance or enjoin violations
• Aggrieved party may recover attorney’s fees

Disruption of Meetings

A public body may remove any person from a meeting if the person willfully disrupts the meeting to the extent that orderly conduct is seriously compromised.

Common Violations of OPMA

• Closed Meetings
• Improper procedure (vote not conducted properly)
• Closing for an impermissible purpose
• Taking action in a closed meeting
• Notice
• Failure to post 24 hours in advance
• Record of open meeting
• Failure to post minutes/audio recordings

Parting Tips and �Helpful Suggestions:

• 24-hour notice
• Be reasonably specific with agenda items
• Close meetings only for allowed statutory purposes and follow the process
• Err on the side of transparency
• When in doubt, consult your legal counsel