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Legal Brief                                                 Page 9

 

Protection From Open

Meetings Violations

BY KIRK D. STRANG

KirkStrang

To address growing hostilities among school board members, the superintendent persuades the board to discuss one board member’s increasingly divisive behavior in closed session. The board president approves and the agenda is posted as required by state law.

After the meeting, however, the superintendent fields a call from an unhappy school board president. Although the school district had properly posted the closed session, the state’s open meetings law only permits a closed session if a board intends to discuss an employee’s conduct. A board member doesn’t qualify as an employee under the law.

In addition, the law specifies that no elected official may be barred from participating in a meeting, so keeping the offensive board member from attending the closed session to ensure confidentiality also ran afoul of the law. The superintendent isn’t liable for these mistakes; the members of the school board are.

Two days earlier, the news coverage had been about board acrimony. Now it turns on how the superintendent had misled the board into violating the state’s open meetings law.

Popular Myths
Most states require that school boards comply with open meetings laws, and lay boards count on school administrators to ensure they do. Administrators must navigate these legalities whenever board and committee meetings take place, and they bear political liability when violations occur. As such, few laws may be as important to administrators’ relationships with school boards or present as many headaches as open meetings laws.

The most common mistakes with open meetings laws stem from popular myths about the laws or from losing sight of the value these laws place upon openness and public access. The best compliance strategy is for the superintendent to ask in every instance whether the district is giving sufficient advance notice, whether the notice is specific and clear, and whether the notice has circulated properly and in the appropriate form.

Meeting notices have to be specific enough for the public to understand what the board will consider. Some school districts, however, put the same general language on their meeting notices every month, a practice that often violates the law. Moreover, the infraction is easy to detect as individuals recognize the meeting notice hasn’t changed over time. Refrain from using boilerplate agendas. Rather, use a case-specific notice for each meeting.

One prevalent myth suggests meeting notices only have to include action items. Another misconception is that board committee sessions are exempt and meeting notices are not required.

Neither is true. Open meetings laws are designed to allow the public to watch its government at work, even if it only involves committee activities, introducing issues, acceptance of reports or any number of other things that fall short of taking formal, final action.

Another dangerous misunderstanding is that failure to post a meeting on time justifies treating the meeting as an “emergency” that can be convened on shorter notice than the law usually allows. Most states will require an independent basis for declaring an emergency. Forgetting to post a meeting isn’t sufficient reason to deny the public advance notice.

Public Access
Closed-door sessions can be particularly appealing as school boards confront difficult issues they would prefer to discuss privately. Open meetings laws don’t allow secrecy merely for the sake of discretion, however, and citizens do not forfeit the right to watch their government at work merely because the work can be messy or uncomfortable. An established, public purpose that is recognized by law has to be served.

Consequently, superintendents need to be prepared to advise sometimes-disbelieving board members that political volatility isn’t a valid reason for closing a meeting.

The key to school board compliance with open meetings laws is to always evaluate meeting notices from the vantage point of the press or public. If district administrators re-examine their practices from this perspective, they can protect their boards far better than those who view open meetings laws as impediments to overcome or avoid.

Kirk Strang chairs the school and higher education law practice at Davis & Kuelthau in Madison, Wis. E-mail: kstrang@dkattorneys.com

 

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