Appeals Court Holds NRD Subcommittee Did Not Violate Open Meetings Act
Koch v. Lower Loup NRD
, __ N.W.2d __, 27 Neb. App. 301(2019), the Nebraska Court of Appeals examined whether committee meetings of natural resources district (NRD) board members, NRD staff, and others constituted subcommittee meetings subject to the Open Meetings Act. Because the group was not functioning as a public body, the court held that it was not a subcommittee subject to the Act.
Mark Allen Koch attended a series of NRD board and committee meetings and was authorized to speak on behalf of other interested parties on a proposed dam. Koch alleged that two committee meetings and two board meetings that occurred in June and July 2014 violated various provisions of the Open Meetings Act. The district court granted summary judgment in favor of the NRD. Koch appealed and the Court of Appeals, in a memo opinion, found that there was a genuine issue of material fact as to whether the committee was a subcommittee exempt from the Open Meetings Act. In a post-remand bench trial, the district court found that the committee was a subcommittee of the board, and not an advisory committee, and therefore not a public body as defined by the Open Meetings Act. The court further found that the committee meetings were not required to be open because a quorum of the NRD board was not present and the committee did not hold hearings, make policy, or take formal action on behalf of the board. Koch again appealed to the Court of Appeals.
The Open Meetings Act, Neb.Rev.Stat. § 84-1408 et seq., provides that “Every meeting of a public body shall be open to the public. . . except as otherwise provided by the Constitution of Nebraska, federal statutes, and the Open Meetings Act.” County boards and governing bodies of other political subdivisions are considered public bodies subject to the Open Meetings Act. § 84-1409.
Public bodies do not include:
(i) subcommittees of such bodies unless a quorum of the public body attends a subcommittee meeting or unless such subcommittees are holding hearings, making policy, or taking formal action on behalf of their parent body,. . . , and (ii) entities conducting judicial proceedings unless a court or other judicial body is exercising rulemaking authority, deliberating, or deciding upon the issuance of administrative orders. § 84-1409
In addition, “[N]o public body shall designate itself a subcommittee of the whole body for the purpose of circumventing the Open Meetings Act.” § 84-1410(4).
The court determined that NRDs, which were created by the Legislature in 1969, are political subdivisions of the state and are public bodies. The Lower Loup NRD is governed by a 21-member board of directors. Eleven members constitute a quorum for purposes of a board meeting. Six members of the NRD board attended the committee meeting on June 17 and seven members attended the committee meeting on July 15.
The case describes the NRD’s process for placing proposals such as the dam project on the agenda: Proposals are given to staff in advance of the committee meeting. NRD staff reviews the information and makes recommendations to the committee, which reviews proposals and makes recommendations to the board for a decision. Neither the staff nor the committee has absolute authority to approve or deny a project proposal. Koch asserted, among other things, that the board “rubberstamped” the committee’s recommendations.
Courts in Nebraska and other states have previously examined the role of subcommittees in relation to open meetings laws. In
City of Elkhorn v. City of Omaha
(citation omitted), the Nebraska Supreme Court held that informational sessions attended by a subgroup of the city council, consisting of less than a quorum, that could take no action, were not meetings of a public body. The court stated that the Open Meetings Act does not require policymakers to remain ignorant of issues until it is time to vote on them. By excluding nonquorum subgroups from the definition of public bodies, “the Legislature has balanced the public’s need to be heard on matters of public policy with a practical accommodation for a public body’s need for information to conduct business.”
The Court of Appeals concluded that the committee was not a subcommittee of the board subject to the Open Meetings Act. It did not hold hearings, make policy, or take formal action on behalf of the board. It only voted on the recommendations to make to the board. The board then held a public meeting, with public comments, held further discussion, and made a final decision. A quorum of the board did not attend the June or July committee meetings.
The full text of the case is available on the Court of Appeals
Editor's Note: Legal Line is a feature that will periodically appear in NACO E-Line. This article has been prepared by Beth Ferrell of the NACO legal staff. Legal Line is not intended to serve as legal advice. Rather, it is published to alert readers to court decisions and legal or advisory matters important to county government. For a specific opinion on how the information contained in this article or that which will be discussed in future issues relates to your county, consult your county attorney or personal counsel.