NASB Open Meetings

THE DEFINITIVE GUIDE TO CLOSED SESSION AND OPEN MEETINGS ACT PITFALLS Karen Haase Steve Williams Bobby Truhe schoollaw@hslegalfirm.com H & S School Law @KarenHaase @SteveIsEsteban @BTruhe

Open Meetings Act Sections 84-1408 to 84-1414

 The formation of public policy is public business and may not be conducted in secret.  Every meeting of a public body shall be open to the public in order that citizens may exercise their democratic privilege of attending and speaking, [except as otherwise provided by law/Constitution]

Remedies for Violation  Complaint to Attorney General  Attorney General, county attorney or a citizen may file suit  Any motion, resolution, regulation, rule or formal action will be:  VOID if suit filed w/in 120 days  VOIDABLE if suit filed w/in 1 year and violation is substantial

 Attorney fees are available to citizens who sue successfully.

Don’t Be a Criminal!

Any member of a public body who knowingly violates or conspires to violate or who attends or remains at a meeting knowing that the public body is in violation of any provision of the Open Meetings Act shall be guilty of a Class IV misdemeanor [$100 min/$500 max] for a first offense and a Class III misdemeanor [up to 3 mo., $500] for a second or subsequent offense.

Our Advice Sections 84-1408 to 84-1414

 8 statutes – Read them!  If in doubt . . . Always err on the side of caution and keep it open.

So How Does this Work?

Public Body  Act applies to “Public Body”  Public Bodies include:  School board  School board “advisory committees”  Subcommittees, but ONLY if:  A quorum of the board attends OR  holding hearings, making policy, or taking formal action on behalf of school board  City of Elkhorn v. City of Omaha (2007)

What is a Meeting?

Meetings include:  All regular, special, or called meetings, formal or informal, of any public body  For the purposes of:    

Briefing Discussion of public business Formation of tentative policy, or Taking of any action of the public body

What do you call a board retreat?

What is NOT a Meeting?

Meetings do not include:  Chance meetings  Attendance at or travel to workshops or conventions as long as:  Meeting not intentionally convened  No vote or other action taken over public body business

 Gathering of quorum if no interaction or discussion of public business

What is NOT a Meeting?  Schauer v. Grooms, 280 Neb. 426 (2010)  Informal tour and dinner

 Rauert v. School Dist. 1-R, 251 Neb. 135 (1996)  “Clandestine” Meetings  Good example of why board members need to be careful about non-meeting gatherings

Our Meeting Today  User name: test  Password: test

 User name: test 2  Password: test 2

 User name: test 1  Password: test 1

 User name: test 3  Password: test 3

Excusing Absent Board Members

Excusing Absent Board Members  NEB. REV. STAT. § 32-570: there shall be a vacancy on the board whenever a board member • • •

is absent from the school district for more than 60 days or misses more than two consecutive regular meetings unless the absences are excused by the remaining members of the board

Our Advice  Don’t automatically excuse absent board members  Talk about this on your board

Pledge of Allegiance

Pledge of Allegiance

Pledge of Allegiance  Boards may say the pledge  Boards and prayer  Most courts - school board meeting may not begin with a prayer.  Decision often very fact-driven, and courts often reach their conclusions for very different reasons.

Prayer at Meetings  Marsh v. Chambers, 463 U. S. 783 (1983)  Coles v. Cleveland Bd. of Ed., 171 F.3d 369 (6th Cir. 1999) – students are “captive audience”

 Bacus v. Palo Verde Unified School District Board of Education, No. 99-57020, 2002 WL 31724273 (9th Cir. Dec. 3, 2002) – “in the name of Jesus”

 Delaware  

Dobrich v. Walls, 380 F. Supp. 2d 366 (Del. 2005) Doe v. Indian River School District, 685 F. Supp. 2d 524 (Del. 2010)

Prayer at Meetings  Doe v. Tangipahoa Parish School Board, 473 F.3d 188 (5th Cir. 2006)

 Doe #2 v. Tangipahoa Parish School Board, 631 F. Supp. 2d 823 (E.D. La. June 24, 2009)

 Town of Greece v. Calloway, 572 U.S. ___, (2014) – 5-4 decision that town did not violated Estab.

Clause of 1st A. by opening meetings with prayer because:  practice is consistent with the tradition long followed by Congress and state legislatures  town does not discriminate against minority faiths in determining who may offer a prayer  prayer does not coerce participation with non-adherents

Our Advice  Allow voluntary participation  We discourage public prayer by boards

Verification of Publication

Verification of Publication

Notice of Meetings

Notice of Meetings  Must publicize all meetings  Reasonable advance notice  To public and board members  By a method adopted by the board and recorded in it minutes • Publication in a newspaper • Posting in the district • Website?

Emergency Meetings  Can be held without notice and by telephone/video  Must make reasonable effort to provide advance notice to media  State nature of emergency in minutes  Only act on emergency matter

What is an Emergency?  Courts construe narrowly.  NSC: “any event or occasional combination of circumstances which calls for immediate action or remedy; pressing necessity; exigency; a sudden or unexpected happening; an unforeseen occurrence or condition.” Steenblock v.

Elkhorn Township Board, 245 Neb. 722 (1994)

What is an Emergency?  AG: one that requires immediate resolution by the public body and one which has arisen in circumstances impossible to anticipate sufficiently ahead of time to be placed on the agenda of a regular, called or special meeting of the body. 1975-76 Rep. Att’y Gen. 150 (Opinion No. 116, dated August 29, 1975)

What is an Emergency?  Steenblock v. Elkhorn Township Board, 245 Neb. 722 (1994)  Terminated township road grader due to poor performance at emergency meeting  Court said not an emergency

 Lesson – need for immediate emotional gratification ≠ emergency

A Quick Word About Agendas‌

A Quick Word About Agendas…  Legal Standard: with sufficient specificity to allow a member of the public to know what is being discussed  NOT • “Personnel” • “Contracts”  Hansmeyer v. NPPD, 256 Neb. 1 (1999) 

“Work Order Reports” ≠ $47M construction project

A Quick Word About Agendas…  File No. 10-M-113, O’Neill Pub. Sch. Bd. (July 19, 2010)  Agenda – “Girls BB Activity Assignment”  Closed session  Parents talked about football (coach resigned over inappropriate comments)

 Retention as girls BB coach “direct corollary to the problems that led to your resignation as football coach.”

A Quick Word About Agendas…  Board cannot amend agenda less than 24 hours prior to meeting  Board may move items around on the agenda • •

File No. 09-M-154, Scottsbluff Pub. Sch. Bd. of Ed. (2010) “There is nothing in the Open meetings Act that requires a public body to strictly adhere to the sequence of its published agenda.”

A Quick Word About Agendas…  “Notice” of meeting in prior board meeting minutes is not notice  Agenda cannot be used as minutes

Meetings by Video & Telephone Not allowed for schools except:  Emergencies  Member of public or any non-board member “witness”

Public Comment

Public Comment

Public Comment

Public Comment  You’re not required to allow public comment at every meeting  You’re not required to have karaoke time  You should: • • • •

Adopt reasonable rules Enforce complaint policy Cut off slander Not debate patrons

Public Comment Decisions  File No. 10-M-104; Clay Center Pub. Sch. Bd. of Ed. (2010) • • •

•

•

Board merging, reducing superintendents Had public comment on the agenda.

Board went into exec. session with attorneys, came out and struck public comment from agenda “This right is not absolute so long as the public body gives citizens the opportunity to speak at some of its meetings” “if and when the public comment will be part of a meeting is at the discretion of a public body”

Public Comment Decisions  File No. 09-M-141; Blair Community Sch. Bd. of Ed.(2010) • • •

•

Soccer player thrown off team for missing practice Dad, son spoke to the board; mom cut off as repetitive “In our view, individuals who speak during a public comment period may address the public body on whatever topic they wish so long as their comments are not obscene or threatening.”

E.g. of 20 people commenting on the same thing

Letter from AG to NASB

Other Meeting Rules  Can’t require ID to enter or attend meeting  Can require ID if speaking to board  Meeting room size  Intentionally too small v. traditional meeting place  Public’s right to hear – make “reasonable” effort “upon request”  Central City, 13-M-108, 111 – June 20, 2014

Consent Agenda

Board Minutes  Time, date and place of meeting  Members present and absent  “Substance” of all matters discussed (ESUCC Disp. Ltr. – 5-12-09)  Documents received or disclosed  Minutes available within 10 days or by next meeting – public record  Sentences, not cryptic statements

Board Minutes  Detailed minutes of closed or executive session not required.  Op. Att’y Gen. NO. 98045 (November 4, 1998)

Board Minutes - Publication  79-580 – Within 10 days of reg. or sp. mtg., bd. secretary must publish 1 time in paper in or of general circulation in district  List of the claims, arising on contract or tort, allowed at the meeting  “Concise summary” of all other proceedings of such meetings.

Roll Call and Leadership Vote  Any action taken requires motion or question, second, and a roll call vote  Record how everyone voted  Voice votes NOT ALLOWED for schools  Secret ballot allowed for leadership vote  Open Session and record # of votes

Treasurer’s Report

Committees

Committees

Committees  Committee meetings are not public meetings NEB. REV. STAT. 84-1409(1)(b)  UNLESS Committee is:  holding hearings  making policy  taking formal policy on behalf of their parent body

Committee Decisions  File No. 09-M-141; Blair Community Sch. Bd. of Ed. (2010) • •

Parents asked to attend committee meeting, school refused “as long as a quorum of the entire Board is not present at a subcommittee meeting and the subcommittee refrains from doing any of the three things enumerated in the statute, it is not subject to the Open Meetings Act.”

Committees

Executive Session

How to Get Into Closed Session  Vote taken in open session  Must record the following in minutes: • Entire motion • Vote of each member • Time when closed session begins and ends

 If motion passes, president restates the limited subject matter for closed session

Closed Session Procedure  Must reconvene in open session before taking any “formal action”  “Formal action” means collective decision or collective commitment or promise to make a decision on any question, motion, proposal, resolution, order, or ordinance or formation of a position or policy

Closed Session Decisions  File No. 07-M-106, Anselmo-Merna Sch. Bd. • Board hiring new sup’t, had multiple executive sessions, no vote in open session • Candidate (current principal) started getting e-mails congratulating her on the hire • Superintendent announced hire to staff “because word was getting out.”

• “process was replete with errors under the Open Meetings Act”

How to Exit Closed Session  Chicken/Egg problem  We have settled on voting in open session  Must record the following in minutes: • Entire motion • Vote of each member • Time when closed session begins and ends

Closed/Executive Session  Most violated section of the Act?  Only two general reasons for closed session articulated in the Act: • prevention of needless injury to a person’s reputation • “Person” is employee, not board mbr

• Protection of the public interest - Then examples of public interest under that second reason

Closed Sessions “Closed sessions may be held for, but shall not be limited to, such reasons as:”  Strategy sessions with respect to collective bargaining, real estate purchases, pending litigation, or litigation which is imminent as evidenced by communication of claim or threat of litigation to or by public body

Closed Sessions “Closed sessions may be held for, but shall not be limited to, such reasons as:”  Discussion regarding deployment of security personnel or devices;  Investigative proceedings regarding allegations of criminal misconduct;

Closed Sessions “Closed sessions may be held for, but shall not be limited to, such reasons as:”  Evaluation of the job performance of a person when necessary to prevent needless in-jury to the reputation of a person AND if such person has not requested a public meeting;

Closed Sessions “Closed sessions may be held for, but shall not be limited to, such reasons as:”  Community Trust - $ to be paid to individuals who have suffered from a tragedy of violence or natural disaster;  Public hospitals - peer review & prof. review activities, discussion of staff investigations or discipline, and strategy session re transactional negotiations

Closed Sessions  Cannot discuss appointment or election of new member in closed session.  Closed session inappropriate because matter might arise. Only permitted when such matter do arise and must be dealt with. Op. Att’y Gen. No. 94035 (May 11, 1994); Op. Att’y Gen. No. 11 (January 20, 1983)

Closed Session Procedure  Vote taken in open session  Must record the following in minutes:  Entire motion  Vote of each member  Time when closed session begins and ends

 If motion passes, president restates the limited subject matter for closed session  Board can only discuss and consider to stated matter(s) - AG wording about related matters???

Closed Session Procedure  Must reconvene in open session before taking any “formal action”  “Formal action” means collective decision or collective commitment or promise to make a decision on any question, motion, proposal, resolution, order, or ordinance or formation of a position or policy

Closed Session Procedure  “Formal actionâ€? does NOT include negotiating guidance given by members of the school board to legal counsel or other negotiators in closed sessions for collective bargaining, real estate purchases, or pending or imminent litigation

Closed Session – Right to Challenge Board member has right to challenge the continuation of a closed session if:  Determines that session has exceeded reason stated in closed session motion; OR  Contends that closed session is not clearly necessary for protection of the public interest OR prevention of needless injury to individual’s reputation.

Closed Session – Right to Challenge  Takes majority vote of the members of the public body to overrule challenge.  Does vote occur in or out of closed session?

 Challenge and its result must be recorded in the minutes.

Closed Session – Right to Challenge  If primary purpose for a closed session is authorized under the open meetings statutes, then any necessary discussion of incidental matters is also authorized. Meyer v. Bd. of Regents of the U. of Nebraska, 1 Neb. App. 893, (1993).

• Bd could properly discuss the appointment of interim president during closed session called to evaluate and consider employment status of then current president.

Grein v. Bd. of Ed. of Fremont 216 Neb. 158 (1984)

 THE decision about what is allowed in closed session.  School board went into closed session to discuss low bid on construction project  The NSC held that the closed session was improper.

Grein v. Bd. of Ed. of Fremont  Closed session provision must be narrowly and strictly construed.  “Public interest” which is protected is “that shared by citizens in general and by the community at large concerning pecuniary or legal rights and liabilities.”  Good faith motivation for a closed session is not a cure for non-compliance with the public meetings laws.

Grein v. Bd. of Ed. of Fremont “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 rubberstamping or reenacting by a pro forma vote any decision reached during a closed session.�

Grein v. Bd. of Ed. of Fremont “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.�

How to Discuss Staff

Closed Session for “Personnel”  The statute does not permit closed session to discuss “personnel” • Repeat it after us: The statute does not permit closed session to discuss “personnel”

“Personnel” Decisions  File No. 09-M-141; Blair Community Sch. Bd. of Ed. • • •

•

Board at work session Went into closed session “to discuss personnel” “The Board’s minutes . . . indicate that the Board’s motion to go into executive session . . . simply stated that the executive session was ‘to discuss personnel.’”

“It appears to us that the motion to go into closed session was improper under the Open Meetings Act.”

What does the statute say?

Injury to reputation appears twice:  Prevention of needless injury to the reputation of an individual and if such individual has not requested a public meeting  Evaluation of the job performance of a person when necessary to prevent needless injury to the reputation of a person and if such person has not requested a public meeting

How to Discuss Staff 1. Determine if board will be “evaluating job performance” 2. Determine if person’s reputation may be needlessly injured 3. Inform the staff member he/she may be discussed at board meeting 4. Do NOT put name on agenda 5. Script

Superintendent Evaluations

Sup’t Eval. Decisions  File No. 09-M-154; Scottsbluff Pub. Sch. Bd. of Ed. (2010) • • •

Paper complained when board went into closed session and agenda said only “executive session” Superintendent: only matter discussed in detail was my evaluation “By all accounts, Dr. Reynold’s evaluation was positive. . . . It appears then that there was no need to discuss Dr. Reynolds’ evaluation in closed session because preventing needless injury to his reputation was not established under these circumstances.”

Sup’t Eval. Decisions  File No. 09-M-141; Blair Community Sch. Bd. of Ed. (2010) • • •

Board at work session Went into closed session “do discuss personnel” “To the extent that portions of the retreat apparently involved evaluation of the current superintendent with the possibility of negative comments, it appears to us that an executive session might be proper . . . ‘for the prevention of needless injury to the reputation of an individual.’”

How to do eval. in closed  Questions: • Will the evaluation be a mixture of positive and negative?

• Will negative be interspersed with positive?

• Has superintendent requested open session?

Closed Session for “Public Interest”  Must be “clearly necessary for the protection of the public interest”  Examples in the statute • • • • •

Collective Bargaining Real Estate Purchase Litigation Deployment of security devices Investigations of criminal conduct

Collective Bargaining

Collective Bargaining

How to Discuss Collective Bargaining 1. Determine if board will be conducting a “strategy session� about real estate purchases 2. Determine if closed session is necessary for protection of public interest 3. Script 4. In closed session: board can give instructions to negotiator

Real Estate

Real Estate

How to Discuss Real Estate 1. Determine if board will be conducting a “strategy session� about real estate purchases 2. Determine if closed session is necessary for protection of public interest 3. Script 4. In closed session: board can give instructions to negotiator

Litigation

How to Discuss Litigation 1. Determine if board will discuss litigation which is “pending” or “imminent” 2. Determine if closed session is necessary for protection of public interest 3. Script 4. You do not have to list caption or litigants on agenda

Settlement Agreements

How to Approve Settlements 1. Determine if employee has given consent to discuss the matter in closed session 2. Determine if closed session is necessary for protection of public interest 3. Follow script for personnel 4. Special rules for payment of public funds • •

Payment of public funds – need board action Settlement with insurance money – public if over $50,000 (NEB. REV. STAT. § 84-713)

Settlements

Resignations

How to Approve Resignations 1. Do not have to list names in agenda – can approve those that come in before the meeting

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Superintendent’s Contract

Approving the Sup’t’s Contract  Can go into closed session for “contract negotiations” not necessarily to simply set the superintendent’s salary.  The more open the better

Approving the Sup’t’s Contract  Superintendent Pay Transparency Act Issues • Don’t have to estimate board raise for Superintendent Pay Transparency Act IF existing contract is up (otherwise draft contract must be up for two days) • New contract and Schedule D must go up next day • Leave it up for three days (we say leave it)

Circumvention of Act  No closed session, informal meeting, chance meeting, social gathering, email, fax, or other electronic communication shall be used for the purpose of circumventing the requirements of the act.  Quorum can communicate electronically as long as there is no course of communication which becomes sufficiently involved so as to evidence an intent or purpose to circumvent the OMA. Op. Att’y Gen. No. 04007 (March 8, 2004)

Circumvention of Act  Exchange or share facts by e-mail or text with a quorum? YES – subject to record request.  Exchange ideas or discuss those facts by email or text with less than a quorum?

YES - subject to record request.  Exchange ideas or discuss those facts by email or text with a quorum or by serial emails that result in a quorum? NO

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THE DEFINITIVE GUIDE TO CLOSED SESSION AND OPEN MEETINGS ACT PITFALLS Karen Haase Steve Williams Bobby Truhe schoollaw@hslegalfirm.com H & S School Law @KarenHaase @SteveIsEsteban @BTruhe