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AGO Opinion 97008

Commission and approval of Commission minutes
Opinion 97008




DATE: January 13, 1997




SUBJECT: Commission and approval of Commission minutes




REQUESTED BY: Mr. Alfonza Whitaker, Executive Director

Nebraska Equal Opportunity Commission




WRITTEN BY: Don Stenberg, Attorney General

Suzanna Glover-Ettrich, Assistant Attorney General






You have requested an Attorney General's Opinion regarding the

proper procedure for an individual Commissioner of the Nebraska

Equal Opportunity Commission who wishes to challenge, amend, or

correct the minutes from a previous Commission meeting.

Particularly, the Commissioners wanted to know if it is permissible

for a Commissioner to prepare his/her own version of the minutes

and submit same to the Commissioners, thus becoming part of the

Commission meeting documents and a public record. We conclude that

an individual Commissioner may offer his/her own version of the

minutes as a motion to amend the minutes from a previous Commission

meeting.




The Nebraska public meetings law, Neb. Rev. Stat. § 84-1408-

1414 (1994), which applies to meetings of the Nebraska Equal

Opportunity Commission, is intended to ensure that public policy is

formulated at open meetings. Marks v. Judicial Nominating

Committee, 236 Neb. 429, 461 N.W.2d 551 (1990). Neb. Rev. Stat.

§ 84-1413 (1994) requires that each public body keep minutes of all

meetings showing the time, place, members present and absent, and

the substance of all matters discussed. The minutes of all

meetings and evidence and documentation received or disclosed in

open session are public records and open to the public inspection

during normal business hours. § 84-1413(4). Minutes shall be

written and available for inspection within ten working days or

prior to the next convened meeting, whichever occurs earlier.

§ 84-1413(5). As a general rule, a public body may, at a

subsequent meeting, if no intervening rights of third persons have

arisen, order the minutes or record of its own proceedings at a

previous meeting to be corrected according to the facts, so as to

make them speak the truth, although the record has once been

approved. State ex. rel. Schuler v. Dunbar, 214 Neb. 85, 333

N.W.2d 652 (1983) (citing 56 Am. Jur. 2d Municipal Corporations,

etc. § 179 (1971)). The purpose of a nunc pro tunc correction is

to make the record speak the truth and not to correct oversights or

failures in the performance of mandatory acts. Schuler, 214 Neb.

at 89. Further, corrections made in the minutes should be made

within a reasonable time. Village of McGrew v. Steidley, 208 Neb.

726, 736, 305 N.W.2d 627 (1981).




Under Robert's Rules of Order, the parliamentary authority

which the Commission has adopted, the proper procedure for an

individual Commissioner who wishes to amend or correct the minutes

from a previous Commission meeting depends on whether or not the

minutes have been adopted by the Commission. A Commissioner may

either make a motion to amend the minutes before adoption or after

adoption. Robert's Rules of Order Newly Revised, §§ 12, 34 (9th

ed. 1990) [Robert's]. For important or complex questions, or when

greater formality is desired, a Commissioner would present the

motion in the form of a resolution. A resolution or a long or

complicated motion should be prepared in advance of the meeting, if

possible, and should be put into writing before it is offered.

Robert's at § 4.


The motion to amend minutes before adoption is a subsidiary

motion and must be seconded; this motion is debatable, amendable,

and can be reconsidered. Robert's at § 12. Action on the motion to

amend the minutes before adoption requires at least four votes.

Neb. Rev. Stat. § 48-1116 (1993) (see also Op. Att'y Gen. No. 96048

of June 7, 1996). Further, any action taken on any motion shall be

by roll call vote of the Commission in open session, and the record

shall state how each member voted or if the member was absent or

not voting. Neb. Rev. Stat. 84-1413(2) (1994).




Under Robert's Rules of Order, there are two motions which can

be used to correct minutes after adoption - a motion to Rescind and

a motion to Amend Something Previously Adopted. Robert's at § 34.

A motion to Rescind - also known as Repeal or Annul - is the motion

by which a previous action or order can be cancelled or

countermanded. The effect of a motion to Rescind is to strike out

an entire main motion, resolution, rule, bylaw, section, or

paragraph that has been adopted at some previous time. Amend

Something Previously Adopted is the motion that can be used if it

is desired to change only a part of the text, or to substitute

different versions. The motions to Rescind and to Amend Something

Previously Adopted can be made only when no other motion is

pending, must be seconded, and are debatable and amendable. Only a

negative vote on these motions can be reconsidered and approval

requires the vote of at least four Commissioners. Neb. Rev. Stat.

§ 48-1116 (1993).




You also requested an opinion regarding the process for

approving minutes when there is a disagreement between the

Commissioners relative to the minutes. According to Robert's Rules

of Order, the minutes of each meeting are normally read and

approved at the beginning of the next regular meeting, immediately

after the call to order; corrections, if any, and approval of the

minutes are normally done by unanimous consent. Robert's at §§ 4,

47. To obtain general consent, the chair states that "If there is

no objection . . .," the minutes will be approved. If any member

objects, the chair must state the question on the motion, allow any

desired debate, and put the question to a vote. Robert's at § 4.

As with any other motion, approval of the minutes by the Commission

requires at least four votes. Neb. Rev. Stat. § 48-1116 (1993).

Op. Att'y Gen. No. 81162 of December 24, 1981, stated that should

there be a disapproval or correction of the minutes which have

already been published, that fact should be published after the

meeting where the disapproval was noted.




Sincerely,




DON STENBERG

Attorney General








Suzanna Glover-Ettrich

Assistant Attorney General

FAX (402) 471-3591




Approved:








______________________________

DON STENBERG, Attorney General




33-2-5.1