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RICH MACKE: Open Meetings Act, there for a reason

RICH MACKE: Open Meetings Act, there for a reason

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Our elected public officials, once elected by voters, should know the responsibilities of that position and the legalities that come with it.

Recent events have come to light through the story, “Did they violate Open Meeting Act?,” published in the Star Herald on Wednesday, March 31, that makes me question if some of our elected officials do understand the Open Meetings Act? Or do they understand but just don’t care?

I’ve watched more than my shares of elected officials from different communities over the past 38 years try to skirt the system when it comes to Open Meetings Acts. Using ploys — such as daisy chain telephone calls for private meetings, group emails, written letters and even lunches to conduct official business without notifying the public prior — have all been deemed a violation of the act.

The basic provisions of the Open Meetings Act states, "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 the State of Nebraska, federal statutes, and the Open Meetings Act."

For purposes of the open meetings statutes, meetings are defined 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.” Section 84-1410(5) also provides that the open meetings statutes shall not apply to “chance meetings or to attendance at or travel to conventions or workshops of members of a public body at which there is no meeting of the body then intentionally convened, if there is no vote or other action taken regarding any matter over which the public body has supervision, control, jurisdiction, or advisory power.”

Section 84-1410(4) prohibits a person or a public body from circumventing the purpose of the open meetings statutes by failing to invite a portion of its members to a meeting or by designating itself as a subcommittee of the whole body. That section also prohibits the use of any closed session, informal meeting, chance meeting, social gathering, email, fax or other electronic communication for the purpose of circumventing the requirements of the open meetings statutes.

Although we do live in a much different world today than we did just a short year ago, the pandemic has resulted in some temporary adjustments to the Open Meetings Act to ensure safe conduction of business.

On Nov. 25, 2020, Gov. Pete Ricketts issued Executive Order No. 20-36, “Corona Virus — Public Meetings Requirement Limited Waiver” (“Order”). This Order is essentially identical to Executive Order No. 20-03, issued at the onset of the pandemic on March 17, 2020. Like the previous executive order, this Order provides a limited waiver of certain requirements of the Nebraska Open Meetings Act (“Act”), Neb. Rev. Stat. §§ 84-1407 to 84-1414 (2014, Cum. Supp. 2020). The Order permits public bodies in the state to meet by videoconferencing, telephone conference call, or other electronic means so long as members of the public and the media are provided access to the meetings. The Order requires that any public body that elects to meet by electronic means (1) provide reasonable advance publicized notice of its meeting and (2) prepare an agenda of items to be discussed at the meeting. See Neb. Rev. Stat § 84-1411(1) (Supp. 2019). Public bodies must meet all other requirements of the Act.

The part of this paragraph above that is concerning is, “The Order permits public bodies in the state to meet by videoconferencing, telephone conference call, or other electronic means so long as members of the public and the media are provided access to the meetings.”

The vagueness of this line, could be construed by someone with limited understanding of the Open Meetings Act, that “or other electronic means” as email communication. Hypothetically, let’s say that is the case and email communication is, under the temporary order, a usable form of communication. Members of the public and media must still be provided access to the meeting and given a 24-hour advance notice.

The Open Meetings Act guards against elected officials, who work for the voters, to operate behind closed doors. It is a way to keep the voters informed. The act keeps the flow of information open to all citizens and the media.

Local media outlets are important to the communities they serve for many reasons. But being a watchdog of government entities for the citizens of those communities is probably the most important part of the job. For without a watchdog, citizens would never know about what goes on at government meetings. They wouldn’t know about how their tax dollars are being spent. And they would never know if abuse of power and corruption were taking place.

We simply cannot be afraid to hold our elected officials accountable for the position we have entrusted them with. They are there for each of us, and we should expect them to follow the law in representing us every day they are in office.

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