The Open Meetings Act

Kelley Baker and Steve WilliamsyHarding & Shultz

kbaker@hslegalfirm.comswilliams@hslegalfirm.com

H & S School Law

Open Meetings ActSections 84-1408 to 84-1414

< The formation of public policy is public business and may not be p yconducted in secret.< Every meeting of a public body shall< Every meeting of a public body shall be open to the public in order that citizens may exercise their democraticcitizens may exercise their democratic privilege of attending and speaking. . .

What is a Meeting?g< All regular, special or called g , pmeetings, formal or informal, of any public body for the purpose of:public body for the purpose of:’ Briefing [includes retreats]’ Discussion of public business’ Discussion of public business’ Formation of tentative policy

T ki i f bli b d’ Taking any action of public body

Recommendations< Treat the Open Meetings Act seriously.< Follow its requirements to the letter.< Avoid the biggest danger – six deadlygg g y

words.

Biggest Danger -- We=ve Always Done It This Way

It= i th d it thi d< It=s cousin B they do it this way down the road and don=t get into trouble.

Notice Requirementsq< Must publicize all meetingsp g< Give reasonable advance notice:

• To public and board members byTo public and board members by• A method adopted by board and

recorded in minutesrecorded in minutes< Comfortable with 3 days

D th d l k?< Does your method always work?

Recommendations< Use a method the public can rely on:

ifi i’ Post at specified sites’ Publish in newspaper and post on p p pthe district web site as additional notice when convenientnotice when convenient

< Board minutes should show method it adopted to publish meetingsit adopted to publish meetings.

Publication Requirement Does Not Apply To

< Chance meetings< Attendance at or travel to conventions< Attendance at or travel to conventions

or workshops of board members at hi h th i i t ti llwhich there is no intentionally

convened board meeting< Board quasi-judicial functions (e.g.

teacher termination proceedings)p g )

The Agendag

Board AgendaMust publish:’ Agenda of subjects known or’ Agenda of subjects known or’ Statement that a copy of agenda,

kept continuously current iskept continuously current, is available for inspection at office during regular business hours

’ Agenda items must be “sufficiently g ydescriptive to give public reasonable notice of matters to be considered”notice of matters to be considered

Board Agenda< Don=t be cryptic B err on the side of a

complete descriptioncomplete description< May not amend w/in 24 hours of mtg< State that the order of agenda items< State that the order of agenda items

may be changed (so arrive at thebeginning of the meeting)

< State that board may enter closed y(executive) session to discuss any matter for which closed session ismatter for which closed session is lawful and appropriate

Reproducible Materials< Make available to public a copy of all reproducible material to be discussedreproducible material to be discussed at the meeting

Opening the Meeting< Note the location of the copy of the

Open Meetings ActOpen Meetings Act< Review the rules of the board meeting< No action except on agenda items< No action except on agenda items < Addressing the board< Identify self< Time limit< Following policies (e.g. complaining

about personnel or student matter)about personnel or student matter)

Public CommentAttorney General=s Recommendations

< Boards must let the public speak at< Boards must let the public speak at some meetings, but not every meeting

M f t t ti’ May refuse comment at a meeting’ May refuse comment on a topic

< Strongly encourage allowing public comment as frequently as possibleq y p

< Should set aside some time at some meetings for public to address anymeetings for public to address any topic whatsoever

Public CommentAttorney General=s Recommendations

< Boards may make reasonable rulesBoards may make reasonable rules’ Reasonable time limits’ Not prohibit repetitive comments’ Not prohibit repetitive comments

< Can=t require names to attend meetingM i t k< May require name to speak’ Can=t require patrons= names to speak to a matter already on agenda’ May require patron=s name to put a y q p p

matter on the agenda

Closed or Executive Sessions

Closed Sessions< Board may hold closed session if:’ Clearly necessary for protection of’ Clearly necessary for protection of the public interest or

P ti f dl i j t’ Prevention of needless injury to reputation of an individual and the individual has not requested a public meetingmeeting

< Two-part motion must identify: ’ Subject matter’ Subject matter’ Reason necessitating closed session

Reasons For Closed Session< Examples of reasons in the Act:

St t i ll ti< Strategy sessions re collective bargaining, buying real estate, and pending or threatened litigation

< Deploying security devicesp y g y< Investigative proceedings re

allegations of criminal conductallegations of criminal conduct< Evaluation of job performance (to

t dl i j dprevent needless injury and person has not requested public meeting)

Two Part Motion< Board motion must include:’ The subject matter (e g negotiations; to’ The subject matter (e.g. negotiations; to discuss performance evaluation)’ Reason necessitating closed session (e g’ Reason necessitating closed session (e.g. to protect the public interest; to prevent needless injury to reputation of a personneedless injury to reputation of a person who had not requested an open forum)

< Presiding officer m st restate the motion< Presiding officer must restate the motion just before entering closed sessionI l d th ti ti i th i t< Include the entire motion in the minutes

Recommendations< Use closed sessions very sparingly

Li it th t th t i i th ti< Limit them to the topic in the motion< There is no legal requirement to keep

closed sessions confidential’ Board members can be forced to tell what was said in closed session

Talking Out of Schoolg f

Circumventing the Actg< Did informal discussions among members

of the school board become, under the circumstances, a substitute for a formal deliberative session of the body?

< Were communications among board gmembers sufficiently developed so as to evidence some intent to circumvent the Open Meetings Act?

Recommendations< Take care not to give appearance the

b d i A i @ h fé bboard is Ameeting@ at the café or bar< Board members B do not discuss

school business at the café or bar.< Tell patrons who want to talk aboutTell patrons who want to talk about

school business B AI deal with school business at board meetings You arebusiness at board meetings. You are welcome to come to the board

ti @meetings.@

Board Minutes

Board Minutes B ContentsShould Contain:

Ti d d l f i< Time, date and place of meeting< Members present and absentp< Subject of all matters discussed< How each member voted or if theHow each member voted or if the member was absent or abstained (roll call votes)call votes)

Board Minutes B Available< Documents received or disclosed in public session are public records’ Open for inspection during normal’ Open for inspection during normal business hours

< Minutes written and available w/in 10< Minutes written and available w/in 10 days or prior to next meeting, whichever i liis earlier

Board Minutes B Publish< Publish in legal newspaper within 10 g p p

days of meeting’ AConcise summary@ of proceedings’ Concise summary of proceedings’ List of Aclaims, arising on contract

or tort allowed at the meeting@or tort, allowed at the meeting< Board may take action to correct

minutes of previous meeting

Recommendations< Do not rely on a secretary to prepare y y p p

the final form of the minutes < Review all minutes before they areReview all minutes before they are

made available for:’ Accuracy’ Accuracy’ Completeness

Emergency Meetingsg y g

Emergency Meetingsg y g< May hold without advance noticey< Formal action limited to emergency< Meeting may be by telephoneMeeting may be by telephone< News media must be contacted< Must prepare minutes by next day< Must prepare minutes by next day

Recommendations< There are very few issues that courts

will consider to be true emergencieswill consider to be true emergencies.’ Couldn=t you wait two days?Li it ti t h< Limit emergency meetings to such

issues as:’ The roof blowing off’ The boiler blowing up’ The boiler blowing up

Violating The Open g pMeetings Actg

Remedies for Violation< Attorney general, county attorney or a citizen may file suit< Any motion, resolution, regulation, y , , g ,rule or formal action will be:’ VOID if suit filed w/in 120 days’ VOID if suit filed w/in 120 days’ VOIDABLE if suit filed w/in 1 year and violation is substantialand violation is substantial

Another Inducement< Attorney fees are yavailable to citizens who sue successfully.sue successfully.

The Open Meetings Act

Kelley Baker and Steve WilliamsyHarding & Shultz

kbaker@hslegalfirm.comswilliams@hslegalfirm.com

H & S School Law