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Lessons in school board secrecy

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Communications technologies raise issues concerning openness of board meetings From the Winter 2005 issue of The News Media & The…

Communications technologies raise issues concerning openness of board meetings

From the Winter 2005 issue of The News Media & The Law, page 21.

By Ryan Lozar

In the early 1980s, “60 Minutes” reporter Harry Reasoner gathered members of an Arkansas school board for a conversation about school desegregation. The interview piqued the public’s interest, but not as Reasoner intended. The session &#151 called to discuss the 25th anniversary of school integration &#151 violated an Arkansas open meetings law requiring school boards to notify the public before discussing school business, Stephens Media Group reported.

Twenty years later, state laws continue to prohibit closed school board meetings. But unlike two decades ago, Internet chat rooms and other technology present new ways for school boards to violate &#151 wittingly or unwittingly &#151 open meetings laws.

Some education reporters still “feel that school boards don’t get the concept of their responsibility to be open,” said Lisa J. Walker, executive director of the Education Writers Association, which has 1,000 members. “Education reporters have many roadblocks that are thrown in their way by those whom they cover.”

Take the Northampton, Pa., school board member who invited three of her colleagues to her parents’ house on a Sunday afternoon last summer to discuss a multimillion-dollar renovation plan for the local high school.

When Madelyn Kemp, vice president of the school board, was criticized for violating the spirit of state open meetings law, she wrote a guest column in The (Allentown) Morning Call defiantly, though correctly, noting that “a violation only occurs when a quorum, five members of the board, is present. . . . Two, three or four members may meet without violating the Sunshine Law. “

Unlike Pennsylvania, Florida law thwarts such bad faith manipulations of quorum thresholds by requiring media notification when even two school board members meet, said Lori Crouch, assistant director at the Education Writers Association. Unfortunately, she added, “reporters get spoiled in Florida.”

Another way school boards evade open-access laws is by taking retreats. Cast as exercises promoting team spirit and consensus-building, these meetings present irresistible opportunities to discuss public business.

At a Buffalo, N.Y., school board retreat, a quorum of school board members ditched discussion of a hypothetical scenario and instead talked about an impending superintendent search. They emerged from the retreat having drafted a complete candidate search strategy, formulated entirely in secret. Julie Underwood, general counsel of the National School Boards Association, strongly disapproves of such tactics. Open meetings laws “are there for a purpose:” public discourse and open decision-making.

In a February 2004 ruling affecting school boards in Mississippi, the state Supreme Court in Gannett River States Publishing Corp. Inc. v. Jackson conceded that the open meetings law did not apply to government bodies’ purely social gatherings, but that a city council retreat did not meet that definition when its members used it to discuss official business.

Though the council members protested that they had not actually voted during the retreat, the court deemed that a meaningless distinction. “[A]ll deliberative stages of the decision-making process of the public body that lead to formation and determination of public policy” are subject to open meetings law, the court ruled.

School boards also violate open meetings laws by misusing so-called “executive sessions,” secret meetings for discussing such publicity-sensitive subjects as personnel or real estate prices.

Many state laws require a public vote to go into secret session and public disclosure of privately made decisions. But boards don’t always follow the rules. A Whitesboro, N.Y., school board was recently rebuked by the state Committee on Open Government for holding an executive session two hours before its regularly scheduled public meeting, precluding a public vote to enter the session.

Many states also require that votes to close a meeting be accompanied by specific details about the proposed secret session’s agenda. When the agenda is clearly delineated, school boards can police themselves and avoid “mission creep,” the discussion of topics unauthorized for closed session. In January 2004, a Milbank, S.D., school board member blew the whistle on her colleagues for discussing an unauthorized topic &#151 a middle school’s closing &#151 at an otherwise legitimate executive session.

Unwilling to rely exclusively on such self-policing, some jurisdictions like Iowa require school boards to tape executive sessions; these tapes can be important evidence if allegations of impropriety later surface. “That doesn’t mean that they have to make recordings of those closed sessions public,” Underwood said. As a Colorado appellate court ruled in December in Gumina v. Sterling, “if an executive session is not properly convened, it is an open meeting” whose minutes are subject to the disclosure requirements of access laws.

A handful of state courts are empowered to invalidate school board decisions reached during illegally convened executive sessions. A limit on this power was made clear by an Arizona appellate court in 2003’s Tanque Verde Unified School District v. Bernini, which showed how a school board can defuse this threat at any time by publicly voting on the same issue it voted on illegally in private. “The board could properly ratify by a single [public] vote the legal action that had resulted from” all prior violations.

Developing technologies like password-protected Internet chat rooms and discussion boards present new contexts where, like executive sessions, it becomes difficult to uncover public topics tainting private conversations.

The Missouri legislature recently passed a law expanding the definition of a meeting to include “conference call, video conference, Internet chat, or Internet message board.” Although Underwood thinks that theoretically school boards “should be able to take common rules and apply them” to different contexts, Missouri’s new legislation suggests that old law must be updated to address new technology, an approach that Walker supported.

When school board members first started using e-mail, she remembered, they claimed to be confused about whether it was subject to open records laws despite the fact that the answer was “pretty obvious.”

Underwood cautioned that “it would be an unfair characterization to say that school boards violate” open meetings laws any more than other governmental bodies. Nonetheless, education reporters have a responsibility to keep informed of the rules governing board meetings and communications.

Walker advises “reporters to find out their state’s law, know exactly what it is,” and make sure that it is enforced.