Can a Majority of the Members of a Governing Body Call a Special Meeting Without Violating the OPMA in Doing So?
I don't think so because this special meeting statute, as quoted above, specifically authorizes a majority to take this action and does not require that it be done in a meeting. Also, the very nature of special meetings requires that they can be called, with proper notice, whenever they are needed. If they could be called only when a scheduled meeting is being held, governing bodies would be severely hampered in their ability to take needed action in a timely manner. Consequently, the decision by members of a governing body to call a special meeting will often have to occur outside of an OPMA-compliant meeting, such as by telephone or email. That action, when taken outside of a regular or special meeting, should not be considered to violate the OPMA. The state legislature would not have intended to create a Catch-22 situation here, authorizing an action that results in a violation of the law.
So, it's the opinion of the MRSC legal staff that a majority or more of a governing body may, without violating the OPMA, communicate outside of a meeting to decide to hold a special meeting, when it would be held, and for what purpose. However, we strongly recommend that these communications be through a third party, such as the city clerk or the clerk of the board of county commissioners. For example, Councilmember X (who may or may not have discussed this with Councilmembers Y and/or Z) emails the city clerk saying he/she wants to call a special meeting at a particular day and time to transact particular business; the city clerk then emails the other councilmembers saying Councilmember X wants to call a special meeting at a particular day and time to transact particular business, and asks the councilmembers to respond to the clerk whether they agree to Councilmember X's request, or suggesting an alternate time. If a majority (which would include Councilmember X) agree to the call for a special meeting, then the clerk would notify all the councilmembers - as well as media who have requested notice of special meetings and the public.
Of course, any communications involving a quorum or more of the governing body outside of a regular or special meeting regarding whether to hold a special meeting may only deal with the subjects of whether and when to hold the special meeting and what business would be transacted at that meeting.
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