Is Your Non-Profit Subject To Open Meeting Laws?

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Did you know that your non-profit organization has to allow anyone to attend your board and committee meetings and turn over copies of your minutes upon demand?

Or maybe you don’t.

Open meeting and freedom of information laws differ from state to state and determining exactly how much access you are required to allow people to have to your meetings and records can be very confusing.

Every state with open government or “sunshine” laws requires any governmental entity and political subdivision including county, town/village and school district, tax district, committees and controlling boards to comply with open meeting and freedom of information laws (FOIA). Often this includes quasi-governmental entities like public libraries.

When it comes to non-profit organizations, things get a little more murky. Many states require non-profits which perform services on the behalf of the state or county government like social service and welfare agencies to comply with these laws. Some require hospitals to comply, some states don’t.

bank-vault-meeting-room

States like South Carolina have very strict interpretations of how the term “receive support” are applied. According to one account, an informal organization with no bank account and barely receiving any support at all is subject to the law:

The Office of the South Carolina Attorney General has opined that an informal, unincorporated, group of individuals called the Charleston Harbor Estuary Citizen’s committee which had no bank account, received no direct monetary support and expended no funds received the requisite “public support” to be subject to the FOIA.  The Committee did receive in-kind support from the South Carolina Sea Grant Consortium in the form of services from one employee and meeting space.  Federal funds from EPA/NOAA were also used by the Sea Grant Consortium to pay for postage, printing, as well as transportation and accommodations for speakers at Committee meetings.  The Office of Attorney General felt that “[t]hese expenditures of grant (i.e., public) funds on behalf of the Committee, while not expended by the Committee itself, do aid in the support of the committee.” Thus, it is clear that accepting even a small amount of public funding can make a nonprofit subject to FOIA

In other states, simply receiving funding that comprises a small part of your overall budget from a governmental entity  doesn’t automatically require you to comply with Open Meeting and FOIA laws.

However, I found an interesting informal advisory rendered by the Florida Attorney General stating that even though they wouldn’t normally be subject to “sunshine” statues, because a non-profit had received a loan from the city, the residents had a vested interest in the decisions the non-profit made given the default terms of the loan and other related agreements.

In vague circumstances like this case, it may be wise to consult the state attorney general for their view on the situation.

To begin your research as to whether you are subject to FOIA and Open Meeting Laws in your state, you can consult the guide on the Reporters Committee for Freedom of the Press website. One of the helpful things about the guide is that it provides citations to relevant court cases that illustrate the degree what entities are subject to the laws. The South Carolina section cites “Weston v. Carolina Research and Development Foundation” which also appeared in the article I quoted above.  In that case, the court found that if an organization receives any government funding whatsoever, it is subject to FOIA statues.

If you are subject to laws, you may want to pay close attention to whether you are allowed to discuss business over email, phone or video conferencing services like Skype, GoToMeeting, etc. This varies from state to state.

Another thing to be aware of is how many people constitute a meeting that is required to be open. Colorado, for example, says that two people of a state entity engaged in a discussion of public business must be an open meeting, even if more people are required to form a quorum to make a decision. (my emphasis)

Because a meeting is open to the public if only two members of any state board or commission, or if only three members of a local government board or commission attend, the absence of a quorum does not affect the public status of the meeting, although it may affect the business conducted at the meeting.

If you read further in that section, you will see that this law applies to discussions by any mode of communication including email, video conferencing, texts, phone, social media, instant messaging. According to the law, each of these discussions is a meeting that the public has to be allowed to observe and participate in. Though it only applies to government business, not how many fish you caught over the weekend or speculation about who your secret Santa is.

All states with open meeting laws provide for exceptions in which topics can be discussed in private. These exceptions are fairly narrowly defined so you can’t simply declare the meeting will go into executive sessions simply because you don’t want people to learn of embarrassing developments.

About Joe Patti

In addition to writing for ArtHacker, I have been writing the blog, Butts in the Seats (buttsseats.com) since 2004.
I am also an evangelist for the effort to Build Public Will For Arts and Culture being helmed by Arts Midwest and the Metropolitan Group. (http://www.creatingconnection.org/about/)
I am currently the Director of the Vern Riffe Center for the Arts at Shawnee State University. Across my career I have worked at University of Hawaii-Leeward Community College, University of Central Florida, Asolo Theater, Utah Shakespearean Festival, Appel Farm Arts and Music Center and numerous other places both defunct and funky.

13 thoughts on “Is Your Non-Profit Subject To Open Meeting Laws?”

  1. Hi Joe,
    I am curious about non-profit “sunshine” law in Oregon state.

    I believe the law used to require non-profits to abide by state public meeting laws in regards to executive or closed sessions. I have been informed in the past year that is either not correct or no longer correct. I have been trying to find out when or if the law changed for non-profits. I need to know the date so I can mount a historical argument for abiding by sunshine laws to promote transparency in our organization as was strongly supported in the past.

    We do not receive any funds from any government entities in any version whether in the form of loans or other sources.

    • Hey Aaron –

      As far as I can tell, since their creation in 1973 the Oregon open meetings law has never applied to non-profits, only units of government entities. If this is really something that concerns you, you should consult an attorney in your state as I am only doing Google searches of state laws and their revision history.

  2. thank you for this article. I am a member of a 501(c)(5) in Missouri, in which government funds have been received over the past few years from the USLGE. We are having issues with our board, where the President an four of the nine board members have dubbed themselves the “FAB5” and are running over the other four board members in a bad direction. Does the sunshine law apply to the Corporation? As there is a board meeting coming up (that hasn’t been announced) which hopefully includes complaints I filed against these board members, I hope to hear from you before then. I do have a call into the Attorney General’s office in Missouri, but the person who can answer the question is out of the office for a few days.

    • I assume USLGE is US Livestock Genetics Export which says they have the US Dept of Agriculture as a member. Missouri state law wouldn’t compel reporting from people receiving federal funds.

      In any case, it doesn’t appear that Missouri state law requires reporting from non-profits of any kind unless their purpose is to enter into contracts with the state or execute services on behalf of the state. The details are laid out on pgs 11-12 of this document – https://ago.mo.gov/docs/default-source/publications/missourisunshinelaw.pdf?sfvrsn=20

      If an organization receives an appropriation from the state, they do have to hold an open meeting, but on if the business is related to that appropriation. So if you got money for a marketing campaign but the meeting is to discuss acquisition of equipment, then there doesn’t appear to be an obligation to provide access to the meeting.

  3. Is it a state law in MO that as a Non profit organization you do not have to have Minutes to give to members of the Nonprofit organization?

    • Stacy –

      I don’t quite understand what your question is. Are you asking if a non-profit has to distribute minutes to their members? That is really a question best asked of the MO secretary of state office. Depending on the law and the way the organization’s bylaws define membership, they may only be obligated to distribute minutes to the board and not the general organizational membership.

  4. Hello
    Is the public allowed to a non-profit board meeting. We receive no monies from city county or state.
    Thank you
    Lawrnece

    • Randy – Sorry, I didn’t see your question back in April. As I suggest to everyone, check with a lawyer for a more definitive advice. From my time in Ohio, they didn’t seem to be as strict about requiring people who received money from the state as other states are. However, there is a point where that changes. I was on one non-profit board where the requirement didn’t appear to apply, but I also sat on the board of a library which received state funds more directly and we took pains to make sure every door between the outside and the meeting room was propped open or clearly unlocked.

  5. Is it a state law in Indiana that in a Non profit Company you do not have to have Minutes to give to members of the Nonprofit organization?

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