AG Issues Letter on Open Meetings Act

Kelley Baker kbaker@hslegalfirm.com

Karen Haase

Steve Williams

Bobby Truhe

khaase@hslegalfirm.com @KarenHaase

swilliams@hslegalfirm.com

btruhe@hslegalfirm.com @btruhe

NEBRASKA ATTORNEY GENERAL’S OFFICE ISSUES LETTER ON THE OPEN MEETINGS ACT In a disposition letter issued on May 22, 2012, the Attorney General’s office dismissed two out of three issues a patron had complained about and found that a school district had committed only a technical violation of the Open Meetings Act (“Act”) on the third issue. Assistant Attorney General Leslie Donley (“Assistant AG Donley”) analyzed the three issues as follows.

1. Agenda. The complainant claimed that the district used one agenda for board members and a “second agenda” for the public. He alleged that the public agenda lacked the specificity required by the Act. The “second agenda” was actually an informational memorandum that the superintendent prepared based on agenda items and provided to board members. Assistant AG Donley concluded that the superintendent’s practice of preparing an informational memorandum for board members did not violate the Act. However, she felt that some of the agenda items “lack the specificity required under the current version of § 84-1411.” Section 84-1411 states: “Agenda items shall be sufficiently descriptive to give the public reasonable notice of the matters to be considered at the meeting.” For example, she felt that the word “Architect” did not give the public sufficient notice of the issue the board would consider.

2. Public Comment and Meeting Minutes. The complainant alleged that the meeting minutes did not indicate who spoke and what they spoke about during the public comment period. Assistant AG Donley found that the board’s minutes met the requirements of the Act. There are no Nebraska cases or opinions that address this issue and she concluded that the Act requires only that the minutes reflect the board’s discussions and actions, not those of the members of the public.

3. Patron Agenda Requests. The complainant alleged that the school board and administration did not place patrons on the agenda as he had requested.

He alleged that any school rule or policy that prevented patrons from being placed on the agenda was invalid because the school district did not follow requirements of the Administrative Procedure Act (NEB. REV. STAT. § 84-901 through § 84-920) to adopt it. Assistant AG Donley concluded that the board acted properly and did not violate the Act. The Act does not require school districts to place items on the

agenda at a patron’s request, and the rule-making provisions of the Administrative Procedures Act do not apply to school districts.

No Further Action by Attorney General. Assistant AG Donley admonished the board to use more descriptive agenda items. She was comforted that the district had begun describing agenda items more fully since the filing of the complaint and concluded that no further action was necessary.

Recommendations. Most of the agendas that we see could be found to be technically deficient. Boards and administrators must take care to provide a sufficient description on agendas so that patrons will have reasonable notice of the matters that the board will consider and discuss at its meetings.

While the Act may not require such information, the board should consider making short entries in the minutes identifying who spoke and the matter(s) they discussed during public comment.

We strongly recommend that boards consult with their school attorneys and following their advice to the letter regarding the preparation and content of meeting agendas and minutes. This will avoid Open Meetings Act headaches and challenges to the board’s actions and integrity.

If you have any questions or concerns regarding this issue, please contact your school attorney or Kelley, Karen, Steve, or Bobby.

Note: An Attorney General’s disposition letter differs from a formal opinion in that it gives the guidance of the Attorney General’s Office but does not carry the weight of a formal opinion. While not legally binding, the guidance provides valuable insight into the Attorney General’s interpretation of the law.

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