This is an archived article that was published on sltrib.com in 2011, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
Debate over Utah's Open and Public Meetings Act specifically on how to get around it enlivened recent meetings of the staid Defined Contribution Risk Adjuster Board, or RAB.
The discussion offered an unusually candid glimpse at a ploy used by government entities to skirt the law: meeting without a quorum in closed subcommittees.
Whether this strategy meets the spirit or letter of the law is a matter of debate.
"You can't escape the law through these types of gymnastics," said Jeff Hunt, a Salt Lake City attorney and advocate for open government.
But that's what Assistant Attorney General Perri Babalis finally told the RAB to do after the group balked at her original suggestion to advertise, record and keep minutes of subcommittee meetings.
An obscure state committee, the RAB was organized two years ago to make sure that insurers that market policies on Utah's Health Insurance Exchange set fair rates that are equal to what consumers can find outside the exchange.
Comprising primarily actuaries and industry executives and regulators, the RAB rarely draws an audience. Still, the board and its subcommittees must do business openly and in full view of the public, said Babalis in October, delivering her annual primer on the Open Meetings law.
"I have been asked in the past whether subcommittees need to comply, and the answer has always been no," she said. "But the opinion out of our office has changed."
State law defines a public body as any advisory or legislative body of the state and its subdivisions created by the Utah Constitution, law, ordinance, rule or resolution. A meeting is the convening of a public body with a quorum present, including workshops and executive sessions.
"Everyone has always gotten around the act by holding subcommittee meetings. So our office has decided that's not appropriate," explained Babalis, noting that violation of the Open Meetings law is punishable by a class B misdemeanor.
Babalis said the revised opinion was made known in early October by Sheila Page, chief of the State Agency Counsel Division. What gave rise to it is unclear. The Attorney General's Office did not respond Tuesday to requests for information.
The news didn't faze RAB Chairman Jim Pinkerton, actuarial policy manager at Regence BlueCross BlueShield.
"We've used subcommittees as work sessions. We haven't excluded the public, but we haven't sent out a notice like we do on this meeting, and we haven't kept minutes. It doesn't sound like a terrible adjustment," he said.
But others objected, saying the onerous requirements would add costs and slow decision-making by boards across the state.
"This is like a whole new twist," said Brian Allen, former lawmaker and insurance-industry lobbyist, who has served on dozens of public bodies, most recently as chairman of the state Charter School Board. "I will guarantee you that nearly every public body in the state is out of compliance if that's the interpretation."
The conversation turned, half-jokingly, to turning subcommittees into chance social gatherings.
"Does [the public] have to be invited to parties?… like a Halloween party?" asked Nancy Askerlund, a state employee who does record keeping for the RAB.
Said Tomasz Serbinowski, an actuary for the state Insurance Department, "It almost begs for one to reconsider whether or not to just have volunteer groups established and not have [subcommittees] spelled out in the bylaws … if that's what gets you in trouble."
Kim Miller of United Health Care pointed out that the RAB's underwriting subcommittee often discusses the health profiles of employee groups.
"Is that appropriate in a public setting?" she asked. "I would say 90 percent of what we do is not subject to discussion by full board because it's not a question of policy. It's about process and how to implement board rules."
There was talk of pushing legislation exempting RAB subcommittees from the law before the meeting closed with Babalis promising to research options.
She returned in December, reiterating that since subcommittees advise boards on matters of policy, they are public. But she offered an out.
"If you really want a way around [the law], make sure you don't have a quorum at any subcommittee meeting," said Babalis. "Only a quorum can conduct business. So, if you do not have a quorum, then the notice requirement, keeping minutes, all of that goes away."
With the RAB that means having four members of the full seven-member board present, which only poses a hurdle for one subcommittee, said Pinkerton. Other subcommittees include fewer than four members.
Attorney Jeff Hunt disagreed and said the law stands as long as there's a quorum of the subcommittee.
The law already allows for some exemptions. Boards can close meetings to talk about real estate purchases, pending litigation, personnel matters or an individual's character, competence or physical and mental health.
And while there are administrative costs in complying, said Hunt, "that's the price we pay for openness and accountability."