A. Must A Minimum Number Be Present To Constitute A "meeting"?

The law defines a meeting as a gathering of more than three, or a majority, of the members of a public body. In most cases, the minimum number of people that must be present to constitute a meeting would be three (for a group with five or more members). However, it would be two, when the committee, subcommittee, or other subordinate unit of a governmental body consists of either two or three members. It is also possible that a series of gatherings of fewer than the number of members necessary to constitute a meeting could still be held a violation of the OMA, where the intent or effect of such gatherings was to circumvent the OMA. For example, in a Florida case cited in briefing of various open meetings cases, the court held that a series of sequential meetings between a school superintendent and individual members of the school board (so that no more than one member of the body was ever present at the same time) still constituted a violation of that state's open meetings act, where it was done with the purpose of avoiding the requirements of the public meetings law.

In Hickel v. Southeast Conference, 868 P.2d 919 (Alaska 1994), the superior court held that the Reapportionment Board violated the OMA by "meeting outside of noticed meetings to do the business of reapportionment." In particular, the superior court found that the Board members had one-on-one conversations with each other, in which they discussed reapportionment affairs and districting preferences, and solicited each other's advice, and also found that the "dearth of [substantive] discussion on the record, combined with the manner of some Board members at trial, as well as other evidence presented at trial, convinces this court that important decision-making and substantive discussion took place outside the public eye." The Supreme Court reiterated its earlier holding in Brookwood Area Homeowners' Ass'n v. Anchorage, 702 P.2d 1317, 1323 (Alaska 1985) that "a 'meeting' includes every step of the deliberative and decision-making process when a governmental unit meets to transact public business." The Hickel court reiterated that the Supreme Court had noted in Brookwood that "the question is not whether a quorum of a governmental unit was present at a private meeting. Rather, the question is whether activities of public officials have the effect of circumventing the OMA." Hickel, 868 P.2d at 929, quoting Brookwood, 702 P.2d at 1323, n.6. The Supreme Court stated that its review of the record indicated support for the factual finding that the Reapportionment Board had conducted some of its reapportionment business outside scheduled public meetings, and based on this, the Supreme Court agreed that the Board had violated the OMA. It is arguable that this decision, which was issued by the court before the 1994 amendments to OMA were adopted, may be affected by the fact that the legislature defined a meeting in that case as a gathering of more than three or a majority of the members, whichever is less. However, the legislature did not intend by this clarification or definition of meeting to change the rule articulated in Brookwood, that situations that would not otherwise constitute meetings would still violate the OMA where the purpose or effect of the communications was to circumvent the OMA. This point was made on a number of occasions throughout the legislative committee hearings and other proceedings leading up to the 1994 revisions of the OMA, and was a point upon which proponents of both sides of the OMA debates, as well as the key legislators involved, did not differ.

Voting by mail.

A member of a body may vote by mail (or by teleconferencing, so long as the vote is recorded to identify each person, and show how the person voted). AS 44.62.600. Voting by mail does not constitute a meeting, per se, but the Attorney General has recommended to agencies that all mail voting materials contain a notice stating in part: "Board action on this matter is being taken via mail vote in accordance with AS 44.62.600. Due to open meeting requirements in this state, members are reminded not to discuss this matter with one another." July 5, 1994 Attorney General Opinion No. 663-94-0569.