Beatrice open meetings ag opinion

Kelley Baker kbaker@hslegalfirm.com

Karen Haase khaase@hslegalfirm.com @KarenHaase

Steve Williams

Bobby Truhe

swilliams@hslegalfirm.com @SteveisEsteban

btruhe@hslegalfirm.com @btruhe

BE CAREFUL WITH CLOSED (EXECUTIVE) SESSIONS We are reminded once again by the Attorney General to take great care with closed (executive) sessions.

The Board Meetings. When the Beatrice Board of Education met on December 5, 2012 it went into closed (executive) session to review applications for the position of superintendent. The meeting convened at 7 p.m. and the board entered closed session at 7:05. The board returned to open session at 9:52, approved a motion to interview four candidates, and adjourned the meeting at 9:54. The board met again on December 13th, reviewed the final four applicants, and reached a consensus on the applicant who should be offered the position.

The Complaints. Terry Cossel, a patron, complained to the Attorney General that the board violated the Open Meetings Act. Regarding the December 4th meeting, he wrote “Apparently the reason was to discuss the qualifications of the various candidates and winnow down the field to four. I do not believe this falls under either of the two permissible reasons to enter executive session.”

Regarding the December 13th meeting, he complained that he had difficulty securing information about what occurred at the meeting. He contended that, though the board president stated the board would take a 5-minute break and then enter closed session, the board never went into closed session and therefore the minutes should have contained information about the four finalists and the one selected by the board.

The Disposition. Assistant Attorney General Leslie Donley expressed the Attorney General’s Office’s position regarding the complaints in a “disposition letter” dated October 15, 2013. She concluded that the board “violated the Open Meetings Act when it convened a closed session on December 4, 2012 to discuss the twelve candidates for the superintendent position. Further, the minutes for the December 13, 2012, meeting should have reflected the actual Board discussion. She wrote:

This office has carefully weighed the Board’s actions in the present case. We believe that the Board, despite its missteps, did not evince the necessary intent to violate the Open Meetings Act. ...

Finally, we would like to take this opportunity to suggest that . . . a school superintendent is a public employee who is hired by the governing body of a local political subdivision. In that context, we believe that the notion that candidates’ identities can be kept confidential when they are the subject of a general discussion during a public meeting is unsupported under our current law. We urge Board members to err on the side of openness, and refrain from conduct which raises issues of impropriety under the Act. Public Records Statutes. The board had contended that section 84-712.05(15) of the Public Records statutes permits boards to withhold from disclosure the job application materials of non-finalists. The board contended that the Legislature’s amendment to section 84-712.05(15) in 2007 “effectively made the determination that protecting such confidentiality is necessary to protect the public interest and to avoid injury to the non-finalists.” Further, this should apply equally “to the confidentiality of non-finalists during a school board meeting.” Assistant Attorney General Donley rejected this argument and referred to her office’s disposition letter in 2008 which stated in part: We are aware of the competing public policies at play here. The Open Meetings Act and the Public Records Statutes together represent the cornerstone of openness and access to governmental bodies and information. They are, however, two very different sets of statutes. Assuming arguendo that a closed session in this instance was proper, there is nothing in the Open Meetings Act that addresses the confidentiality of documents discussed in closed session. [Footnote omitted.] We can find no statutory basis to support the argument that an otherwise improper closed session becomes proper when necessary to protect certain documents from disclosure.

Guidance from the Grein Decision. When analyzing Open Meetings Act cases, the Attorney General’s Office places great reliance on the Nebraska Page 2 of 5

Supreme Court’s decision in Grein v. Board of Education. Assistant Attorney General Donley wrote: . . . in the end we must rely on the Nebraska Supreme Court case Grein v. Board of Education of the School District of Fremont, 216 Neb. 158, 343 N.W.2d 718 (1984), to support our conclusion that the meetings at issue should have been kept open.

She then listed four of the Supreme Court’s “critical holdings” from the Grein decision. Without page citations, they are: 1. “Provisions permitting closed sessions and exemption from openness of a meeting must be narrowly construed.”

2. “The ‘public interest’ mentioned in § 84-1410 is that shared by citizens in general and by the community at large concerning pecuniary or legal rights and liabilities.”

3. “[G]ood faith or good intention on the part of the public body is irrelevant to the question of compliance with the provisions of the Public Meetings Laws authorizing a closed session.”

4. “The prohibition against decisions or formal action in a closed session also proscribes ‘crystallization of secret decisions to a point just short of ceremonial acceptance,’’ and rubberstampting or reenacting by a pro forma vote any decision reached during a closed session.”

Assistant Attorney General Donley quoted other guidance from the Grein decision which she considered so central and important that she put it in boldface: From all this there evolves a guiding principle relatively simple and fundamental: If a public body is uncertain about the type of session to be conducted, open or closed, bear in mind the policy of openness promoted by the Public Meetings Laws and opt for a meeting in the presence of the public.

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Protection of the Public Interest. She noted that, though the Open Meetings Act does not define “protection of the public interest,” the Grein Court defined it and focused on pecuniary and legal rights when it wrote: The “public interest” mentioned in Neb. Rev. Stat. § 84-1410 is that shared by citizens in general and by the community at large concerning pecuniary or legal rights and liabilities.

Extent of Closed Session and Apparent Decision. Assistant Attorney General Donley expressed concern that the board met for 2 hours and 54 minutes, of which all but 7 minutes were in closed session. She cited a previous disposition letter to the board and wrote that she was unable to conclude that the closed session was “clearly necessary to protect the public interest or to prevent needless injury to the applicants’ reputations.” Further, “the Board appears to have come to a consensus as to which four candidates would be advanced for further consideration during its closed session, which is expressly prohibited in § 84-1410(2) and in Grein.

Board Minutes. The complainant contended that the board president stated at the December 13th meeting that the board would take a 5-minute break and then enter closed session. However, the board never went into closed session and therefore the minutes should have contained information about the four finalists and the one selected by the board. Assistant Attorney General Donley described this conduct as “problematic” but she concluded that the board had not intentionally sought to deceive the public. Nevertheless, as the board had discussed the candidates in open session, “it should have included this information in its minutes. We believe the minutes were purposefully vague.”

Conclusion. Assistant Attorney General Donley concluded that the board had violated the Open Meetings Act when it convened a closed session on December 4th and that its minutes of the December 13th meeting “should have reflected the actual board discussion.” However, its behavior “did not evince the necessary intent to violate the Open Meetings Act” and the district’s legal counsel had made “a plausible argument to support the propriety of the closed session held by the board on December 4, 2012. While we ultimately disagree with this argument, it makes criminal prosecution unwarranted.” Therefore, the Attorney General’s office would not take any action on the complaint.

If you have questions we recommend that you consult with your school district’s attorney or call Steve, Bobby, Kelley, or Karen.

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