"Open Meetings" Requirements of the Public Telecommunications Financing Act of 1978 A. Section 396(k)(4) of the Public Telecommunications Financing Act of 1978 provides that: "Funds may not be distributed pursuant to this sub- B. Section 397 (5) of the Act provides that: "The term 'meeting' means the deliberations of at least C. Date of Compliance upon the date of enactment of the 1978 Act November 2, 1978. II. A. Interpretations Effect This provision of the law prohibits CPB from distributing its funds to PBS or NPR or to public broadcasting station permittees or licensees, unless the governing bodies of those organizations, any committees of such governing bodies or any advisory bodies, hold open meetings preceded by reasonable notice to the public. A literal reading of the law indicates that legal requirement would be met if either the governing body, or any committee thereof, or any advisory body of such an organization holds open meetings. In other words, the law is written in an alternative manner by the use of the word "or" rather than using the word "and" in which case all these bodies, i.e. the governing body, any committees thereof, and advisory bodies would have to hold open meetings. However, the legislative history indicates that the intention was to have open meetings by the governing body, its committees and any advisory bodies. It was not intended to allow a choice of which body would hold open meetings. 1. Open Meetings Because of the statutory definition of "meeting", all sessions of governing bodies, committees thereof, or advisory bodies are not necessarily "meetings" within the definition of the Act. The following elements must be present in order for a board, etc., session to meet the statutory definition of a "meeting": (1) a quorum, for purpose of taking action, must be present; (2) deliberations must take place; and (3) the deliberations must determine or result in the joint conduct or disposition of the business of the particular body, but only to the extent that such deliberations relate to public broadcasting. The determination of whether these elements are present will have to be determined on a case-by-case basis by the affected organization. The question of whether deliberations "relate to public broadcasting" would have to be decided on a case-by-case basis. However, it is obvious that deliberations relating to other than public broadcasting would not fall within the requirements of the open meetings section of the law. For example, a university or school board licensee could be expected to conduct board meetings, etc. that would cover subjects not even remotely related to public broadcasting. When one considers a board whose sole responsibility is related to public broadcasting such as a community licensee, the number of instances when deliberations not related to public broadcasting would take place could be expected to be much smaller. 2. Reasonable Notice to the Public The law provides that all such open meetings must be preceded by "reasonable notice to the public." The words "reasonable notice" normally mean a form of notice reasonably expected to inform and appropriate to the purpose of the notice. In other words, one has to determine who could be reasonably expected to have an interest in attending the meetings. Notice should be directed toward those individuals and in a manner that could reasonably be expected to reach them. The Conference Report suggests that there may be Occasions when an open meeting, preceded by reasonable notice would be impracticable. The Report states that, "...from time to time emergency situations or the convenience of teleconferencing may make it impractical to hold an open meeting preceded by reasonable notice. In such situations, requiring advance notice to the public for committee meetings would be unreasonable. Although the conferees understand that meetings conducted by telephone cannot be open to the public, the conferees expect that the entities involved will attempt to minimize those instances." 3. All Persons Shall be Permitted by the Station to Attend any Meeting One troublesome part of this requirement is that physical space, as well as fire department occupancy regulations, may prohibit "all persons" from attending any given meeting. Although it would not be reasonable to expect an organization to rent a "convention hall" to accommodate persons who may wish to attend meetings, it would nevertheless seem appropriate that the various organizations conduct their respective meetings in facilities that would permit Occupancy by substantially more than those persons who constitute the body that is conducting the meeting. The rule of reasonableness should guide in this area. The law would not require a station to undergo unreasonable expenses and efforts to accommodate the public. By the same token the law would not countenance omissions or positive actions discouraging reasonable accommodation of the public. Therefore, it is advisable, in any event, not to reduce the size of current meeting facilities or otherwise deter the public from attending open meetings. 4. Explanation of Closed Meetings If a session is closed to the public pursuant to the statutory exceptions (discussed infra.), a written statement containing an explanation of the reasons for closing the meeting must be made available to the public within a reasonable period of time thereafter. The explanation for a closed meeting, however, does not have to be made available in the same manner as the notice of an open meeting. The explanation for the closing of a meeting should preferably use the words of the statute. B. Prohibitions PBS, NPR or any station cannot require a person to register his name or provide any other information as a condition to attending a meeting. However, if an organization provides, for example, priority seating arrangements for those who formally request such seating space ahead of time, this procedure would be acceptable, since it is a condition precedent only to priority seating, not attendance. C. Exceptions - The law also provides exceptions to the open meeting requirement. Closed sessions can be conducted to consider matters relating to individual employees, proprietary information, litigation and other matters requiring the confidential advice of counsel, commercial or financial information obtained from a person on a privileged or confidential basis, or the purchase of property or services whenever the premature exposure of such purchase would compromise the business interests of any such organization. D. Result of Non-Compliance The law provides that CPB may not distribute any of its funds to PBS, NPR, or the licensee or permittee of any public broadcast station that does not hold open meetings in conformance with the provisions of the 1978 Financing Act. A. PBS, NPR (or their successor organizations) and any licensee or permittee of a public broadcast station must: 1. have the meetings of its governing body, and any committee of its governing body open to the public; 2. have the meetings of its community advisory board or any advisory body of the governing board open to the public; 51-017 O 79 |