Open Meetings Law

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The Open Meetings Act

Kelleyy Baker and Steve Williams Harding & Shultz kbaker@hslegalfirm.com swilliams@hslegalfirm.com H & S School Law

Open Meetings Act Sections 84-1408 to 84-1414

< The formation of public policy is ppublic business and mayy 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. . .

What is a Meeting? g < All regular, g , special p or called meetings, formal or informal, of any public body for the purpose of: ’ Briefing [includes retreats] ’ Discussion of public business ’ Formation of tentative policy ’ Taking T ki any action i off public bli body b d

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

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

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

Notice Requirements q < Must p publicize all meetings g < Give reasonable advance notice: • To public and board members by • A method adopted by board and recorded in minutes < Comfortable with 3 days < Does D your method th d always l work? k?

Recommendations < Use a method the public can rely on: ’ Post at specified ifi sites i p p and p post on ’ Publish in newspaper the district web site as additional notice when convenient < Board minutes should show method it adopted to publish meetings meetings.

Publication Requirement Does Not Apply To < Chance meetings < Attendance at or travel to conventions or workshops of board members at which hi h th there iis no intentionally i t ti ll convened board meeting < Board quasi-judicial functions (e.g. p g) teacher termination proceedings)

The Agenda g

Board Agenda Must publish: ’ Agenda of subjects known or ’ Statement that a copy of agenda, kept continuously current current, is available for inspection at office during regular business hours g items must be “sufficientlyy ’ Agenda descriptive to give public reasonable notice of matters to be considered considered”

Board Agenda < Don=t be cryptic B err on the side of a complete description < May not amend w/in 24 hours of mtg < State that the order of agenda items may be changed (so arrive at the beginning of the meeting) < State that board mayy enter closed (executive) session to discuss any matter for which closed session is lawful and appropriate

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

Opening the Meeting < Note the location of the copy of the Open Meetings Act < Review the rules of the board meeting < No action except on agenda items < Addressing the board < Identify self < Time limit < Following policies (e.g. complaining about personnel or student matter)

Public Comment Attorney General=s Recommendations

< Boards must let the public speak at some meetings, but not every meeting ’ May M refuse f commentt att a meeting ti ’ May refuse comment on a topic < Strongly encourage allowing public q y as p possible comment as frequently < Should set aside some time at some meetings for public to address any topic whatsoever

Public Comment Attorney General=s Recommendations

< Boards may make reasonable rules ’ Reasonable time limits ’ Not prohibit repetitive comments < Can=t require names to attend meeting < May M require i name to t speak k ’ Can=t require patrons= names to speak to a matter already on agenda q p patron=s name to p put a ’ Mayy require matter on the agenda

Closed or Executive Sessions

Closed Sessions < Board may hold closed session if: ’ Clearly necessary for protection of the public interest or ’ Prevention P ti off needless dl injury i j to t reputation of an individual and the individual has not requested a public meeting < Two-part motion must identify: ’ Subject matter ’ Reason necessitating closed session

Reasons For Closed Session < Examples of reasons in the Act: < Strategy St t sessions i re collective ll ti bargaining, buying real estate, and pending or threatened litigation p y g security y devices < Deploying < Investigative proceedings re allegations of criminal conduct < Evaluation of job performance (to preventt needless dl injury i j and d person has not requested public meeting)

Two Part Motion < Board motion must include: ’ The subject matter (e.g. (e g negotiations; to discuss performance evaluation) ’ Reason necessitating closed session (e.g. (e g to protect the public interest; to prevent needless injury to reputation of a person who had not requested an open forum) < Presiding officer must m st restate the motion just before entering closed session < Include I l d th the entire ti motion ti iin the th minutes i t

Recommendations < Use closed sessions very sparingly < Limit Li it them th to t th the ttopic i iin the th motion ti < There is no legal requirement to keep closed sessions confidential ’ Board members can be forced to tell what was said in closed session

Talkingg Out off School

Circumventingg the Act < 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 amongg board members sufficiently developed so as to evidence some intent to circumvent the Open Meetings Act?

Recommendations < Take care not to give appearance the b d iis Ameeting@ board A i @ at the h café fé or b bar < Board members B do not discuss school business at the café or bar. < Tell patrons who want to talk about school business B AI deal with school business at board meetings meetings. You are welcome to come to the board meetings.@ ti @

Board Minutes

Board Minutes B Contents Should Contain:

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

Board Minutes B Available < Documents received or disclosed in public session are public records ’ Open for inspection during normal business hours < Minutes written and available w/in 10 days or prior to next meeting, whichever i earlier is li

Board Minutes B Publish < Publish in legal g newspaper p p within 10 days of meeting ’ AConcise Concise summary@ summary of proceedings ’ List of Aclaims, arising on contract or tort tort, allowed at the meeting@ meeting < Board may take action to correct minutes of previous meeting

Recommendations < Do not relyy on a secretaryy to prepare p p the final form of the minutes < Review all minutes before they are made available for: ’ Accuracy ’ Completeness

Emergency g y Meetings g

Emergency g y Meetings g < < < < <

Mayy hold without advance notice Formal action limited to emergency Meeting may be by telephone News media must be contacted Must prepare minutes by next day

Recommendations < There are very few issues that courts will consider to be true emergencies. emergencies ’ Couldn=t you wait two days? < Limit Li it emergency meetings ti to t such h issues as: ’ The roof blowing off ’ The boiler blowing up

Violatingg The Open p Meetings g Act

Remedies for Violation < Attorney general, county attorney or a citizen may file suit g , < Anyy 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

Another Inducement < Attorneyy fees are available to citizens who sue successfully.

The Open Meetings Act

Kelleyy Baker and Steve Williams Harding & Shultz kbaker@hslegalfirm.com swilliams@hslegalfirm.com H & S School Law

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