Sunshine Laws: Nonprofit Compliance In Ohio

Sunshine laws, also known as open records laws, are designed to ensure public access to government meetings, decisions and records. While sunshine laws do not apply to private organizations, they may apply to nonprofits that are funded by public money or managing public initiatives. In Ohio, the nonprofit JobsOhio is exempt from sunshine laws.

State educational institutions

States may also have specific statutes governing meetings of the regents and similar governing bodies of universities in addition to or in lieu of the application of the general open meeting law. State educational institutions have been the subject of a disproportionate amount of open meeting act litigation.

Open meeting laws and court and attorney general opinions have identified the following state educational entities that may or may not be required to obey open meeting laws and requirements:

• Governing bodies of public institutions of higher learning, such as boards of regents and boards of trustees
• Departments within a university
• Admissions committees of public institutions of higher learning
• Other committees
• The faculty, acting as a collegial body. Tenure hearings may or may not be required to be open, either by including or excluding the tenure hearing specifically, by including or excluding the body that conducts the hearings, or by deeming tenure hearings to be within the exception permitting executive sessions for personnel matters
• Athletic associations and councils
• Student government associations and organizations in some states or circumstances, but not others
• Nonprofit corporations or foundations operating for the benefit of a public university or college or the public schools
• Other associations, committees, and entities that are associated with or part of public universities and schools

Substantial litigation has occurred over the application of open meeting laws to search committees for university presidents, deans, chancellors, and similar leaders. As reflected in these lawsuits, the application of open meeting laws to public schools at any level often presents a tension between the public interest in open government and the privacy rights of particular students and teachers and other individuals whose personal information and specific circumstances may be at issue. This tension has been addressed in most states by permitting executive sessions when the public body considers specific individuals whose privacy interests would be affected by public discussion.

Private entities receiving public funds

Private entities that receive public funds are subject to open meeting laws in some states. The applicability of these laws depends on the state in question, and the nature of the private entity in question.

For example, in California, a private entity that receives funds from a local agency and has a member of the legislative body of the local agency appointed to its governing body as a full voting member is subject to open meeting laws. In Oklahoma, all entities supported in whole or in part by public funds or entrusted with expending public funds are considered public bodies and are subject to open meeting laws.

However, in other states like Arizona, the receipt of public funds does not directly trigger the applicability of open meeting laws. Instead, the question is whether the private entity carries on "public business" or is otherwise intertwined with government activities.

In summary, while there is no uniform answer, private entities that receive public funds may be subject to open meeting laws in some states, depending on the specific circumstances and the nature of the entity's relationship with the government.

Homeowner associations

In Arizona, HOA board and association meetings must be open to all members of the association, except when dealing with legal advice, pending or contemplated litigation, employment-related matters, and personal, health, or financial information about an individual member, employee, or contractor for the association. Meetings must be held in Arizona, and the association must meet at least once a year. Notices of meetings must be provided to all members 10 to 50 days in advance, unless specified otherwise in the association's bylaws.

California's Common Interest Development Open Meeting Act entitles any member of an HOA to attend board of directors meetings, except for executive sessions that address litigation, contracts with third parties, member discipline, personnel matters, or meetings regarding a member's payment of assessments or fines. Minutes of meetings must be made available to members within 30 days, and members are entitled to notice of meetings and the opportunity to speak for a reasonable time.

Colorado mandates that unit owners' association meetings be held at least once a year, with 10 to 50 days notice provided to all members. Regular and special meetings of the association, its board of directors, executive board, and committees must be open to all members or their representatives. However, executive sessions can be held to address employment-related matters, legal consultations, investigative proceedings, matters involving individual privacy, and legal communications.

Florida requires that all HOA board of directors meetings be open to members, except for meetings with attorneys regarding pending or proposed litigation and personnel matters. This also applies to meetings where final decisions are made regarding the expenditure of association funds and to bodies that approve or disapprove architectural decisions affecting specific parcels of residential property. Members are entitled to speak for at least three minutes on agenda items and can be granted additional time at the association's discretion.

Nevada includes limited-purpose associations for rural agricultural residential common-interest communities in its definition of public bodies subject to open meeting laws.

Oregon mandates that all HOA board meetings be open to unit owners, except for meetings concerning legal consultations, personnel matters, contract negotiations, and the collection of unpaid assessments. Voting must occur in open session, and the purpose of any closed session must be disclosed.

Texas applies its open meeting law to certain property owners' associations that meet specific criteria, such as mandatory membership, the power to impose mandatory assessments, and assessments based on property tax values. Additionally, the law covers condominiums, where all board meetings must be open to unit owners, except when discussing personnel, pending litigation, contract negotiations, enforcement actions, matters involving individual privacy, or issues that require confidentiality at the request of affected parties.

In Washington, HOA boards must meet at least annually, and all board meetings must be open to all owners of record and their agents, except when addressing personnel matters, legal consultations, likely or pending litigation, violations of governing documents, and matters involving owner liability to the association. Notices of meetings must be provided, and minutes must be made available to all owners, with any closed session decisions and their justifications noted.

While some states have specific statutes governing HOA meetings, in general, the enforcement of open meeting requirements for HOAs is typically left to the association itself rather than government entities. However, if an HOA contracts with a county or public entity to perform governmental functions, it may be subject to the same open meeting requirements that apply to those entities.

Private entities providing services to public bodies

Sunshine laws, or open meeting laws, apply principally to public, collegial, deliberative bodies, which are multi-member bodies that meet as a group for deliberation and decision-making. However, open meeting laws may be applied to private entities when necessary to further the public policies of the open meeting laws.

• The manner in which the entity was created and the public or private character of the person(s) who created it
• The extent to which the entity sets policy
• The purpose for which it was formed
• Whether the entity is performing a governmental function
• The degree of access that government bodies have to the private entity's records
• Whether the entity is nonprofit or for profit
• The public or private identity of the owner of the entity's assets if it dissolved
• Whether the entity is acting as the delegate of a public body

Ultimately, the determination of whether a private entity providing services to a public body is subject to open meeting laws will depend on the specific facts and circumstances, as well as the particular state's open meeting law.

Nonprofit boards funded by public money

Nonprofit boards that receive public funds are subject to open meeting laws in some states. However, the applicability of these laws varies from state to state, and it is essential to refer to the specific statutes and seek legal advice for a definitive answer.

In general, open meeting laws apply to public bodies that are supported by or spend public funds. The extent of public funding and the level of decision-making authority are crucial factors in determining whether a nonprofit board is subject to these laws. Some states explicitly include entities receiving public funds in their definitions of public bodies, while others consider a range of factors, including the purpose of the entity, the source and amount of funding, and the degree of government control.

For example, in California, a "public body" includes multimember bodies that govern private entities and receive funds from a local agency, with a member of the legislative body appointed as a voting member. Kansas applies its open meeting laws to bodies "receiving or expending and supported in whole or in part by public funds." Oklahoma's definition includes entities "supported in whole or in part by public funds or entrusted with the expending of public funds."

Other states, like Indiana, have more specific criteria. In Indiana, a "public agency" includes entities subject to budget review by the state or a local government body and those subject to audit by the state board of accounts. North Dakota includes organizations supported by public funds exceeding the fair market value of any goods or services exchanged.

The applicability of open meeting laws to nonprofit boards funded by public money depends on the specific state statutes and the nature of the nonprofit organization. It is essential to refer to the laws of the relevant state and consult legal experts for a definitive answer.

Frequently asked questions