What Counts as a Meeting

The open meeting law only bites when there is a meeting. So the fights happen over the word. Boards that want privacy try to keep conversations from becoming "meetings." Anyone watching a board needs to know exactly where the line sits, because the most consequential secret discussions rarely happen in a room with a gavel.

Definitions that work together

74-202 builds the idea of a meeting out of three defined terms:

• Meeting (74-202(6)): "the convening of a governing body of a public agency to make a decision or to deliberate toward a decision on any matter."
• Decision (74-202(1)): any determination, action, vote or final disposition on a motion, proposal, resolution, order, ordinance or measure that needs a vote, "at any meeting at which a quorum is present." Ministerial steps that carry out a decision already made at a proper meeting don't count.
• Deliberation (74-202(2)): "the receipt or exchange of information or opinion relating to a decision." Informal or impromptu talk "of a general nature" that doesn't specifically relate to a matter pending before the agency is excluded.

Notice the word "receipt." The AG manual makes the point directly: deliberation doesn't require discussion or any preliminary decision. A quorum sitting silently through a private staff presentation on next month's budget is deliberating. That one word closes the door on the "we were only listening" defense.

The quorum question

The statute doesn't define quorum, and the definition of meeting doesn't use the word. It appears in the definition of decision. The AG manual reads the chapter, with the Idaho Supreme Court's 1976 decision in Idaho Water Resources Board v. Kramer, to mean a meeting requires a quorum. Quorum itself comes from each body's own law. For school boards, 33-510(3) sets it at a majority of members, and majority is the usual rule.

Social gatherings

The AG's position, built on California and Florida cases the manual quotes, is that formality doesn't matter. A meeting "can be formal, informal, or social." If a quorum is present and the intent is to deliberate or decide, it must be open. The manual quotes a California court on why: a private pre-meeting conference permits "crystallization of secret decisions to a point just short of ceremonial acceptance."

The flip side is in the definition of deliberation itself. General talk that doesn't relate to a pending matter is not deliberation. Three council members at a holiday party talking about grandchildren is fine. The same three in the corner discussing the pending water rate study is not.

Serial meetings and go-betweens

The obvious workaround is to never gather a quorum at once. Member A talks to B, B talks to C, and by Tuesday's meeting the vote is locked. The AG manual says the law "should not be evaded by holding smaller meetings with less than a quorum present or by having a go-between contact each of the governing body members to ascertain his/her sentiment." This course found no published Idaho appellate decision that sets out a detailed serial-meeting test, so the manual is the main guidance. When you raise a chain like this at a meeting, in testimony or online, describe what happened and cite the AG's language rather than declaring a violation yourself.

Email and text chains

The AG manual's Question 27 handles electronic messages. A phone call doesn't take a conversation outside the law, and members "may not use computers or texting to conduct private conversations among themselves about board business." But a one-way email or text from one member to another that doesn't result in an exchange of comments or responses is not a meeting. Those messages are still public records the custodian must keep.

That gives you a practical rule. One member emailing a news story to the others: probably fine. A reply-all thread where a quorum trades opinions on how to vote on Thursday's bid award: that's deliberation by keyboard. And because 74-101 defines a writing to include "every means of recording," the thread is something you can ask for under the Public Records Act. Ask for messages on personal phones and accounts too if members used them for public business. Agencies sometimes dispute whether those must be produced, so ask anyway and keep any refusal in writing.

Site visits and phone calls from residents

Boards often tour a property before a land use vote. That's a meeting if a quorum goes and the purpose is to gather information for the decision. In Noble v. Kootenai County, 148 Idaho 937 (2010), commissioners on a site visit steered around a group of residents waiting at the entrance and talked where the group couldn't hear. The Idaho Supreme Court found a violation: at the very least, the public "must be permitted to get close enough to the hearing body to hear what is being said."

Individual residents can still call or email a board member about a pending matter. When the board is acting as a judge on an application (a variance, a permit appeal), Idaho Historic Preservation Council v. City Council of Boise, 134 Idaho 651 (2000), adds a due process rule: members who take such calls must disclose who called and a general description of what each caller said, so the other side can respond. The court framed that as due process, and the AG manual notes it may also raise open meeting questions.