www.msbanet.org. top sunshine law mistakes and misunderstandings scott t. summers director of school...
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TOP SUNSHINE LAW MISTAKES AND
MISUNDERSTANDINGSSCOTT T. SUMMERS
DIRECTOR OF SCHOOL LAWSMISSOURI SCHOOL BOARDS’ ASSOCIATION
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CONTACT INFO
LEGAL HOTLINE1-800-221-6722
WEBSITEwww.msbanet.org
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MSBA POLICIES
BCEBDA
BDCBDDA
BDDBBDDF
BDDGBDDG-R
BDDHBDDL
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GENERAL RULE
• All meetings and records of public governmental bodies (school districts) are open to the public with limited exceptions
• Courts will assume a meeting or record is open unless proven otherwise
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WHO FOLLOWS THE RULE?
• A quorum of the board – which means any discussion or meeting held between 4 or more members of the board
• Any meeting of less than 4 if the intent is to get around the SSL
• Any committee appointed by or at the direction of the board that is authorized to report to the board or superintendent
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OOPS – I FORGOT!!Valley Fall’s regular board meeting is held the 3rd Tuesday of every month beginning at 6:30 p.m. Beth is the new board secretary and the next meeting will be her first board meeting. She’s very busy in the days leading up to the meeting and realizes on Tuesday morning that she forgot to post notice and the agenda for the meeting! What should she/Valley Fall’s do?
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SECTION 610.020
All public governmental bodies shall give notice of the time, date, and place of each meeting and its tentative agenda, in a manner reasonably calculated to advise the public of the matters to be considered• Shall be done at least 24 hours in advance of
the meeting – unless an emergency of the district
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OOPS…
• It is a violation of the SSL• Probably ok to hold the meeting• On usual meeting night – nothing special• Make a note in minutes• ALWAYS acknowledge mistakes!!
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LAWN CARE…
The meeting gets started and Beth is feeling better. Suddenly, board member Sam decides he wants to discuss whether the district should contract with Brake’s Lawn Service to do the lawn maintenance in the district. The last contractor, French’s Lawn Care, did a poor job according to Sam. Sam wants to discuss this issue in closed session. Beth is confused. Ok?
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610.021
Agenda must include closed session and the specific statutory reason for closing the meeting• Only go into closed session for 23 specific
reasons – lawn care not one of them• Here – lawn service is an independent
contractor, not an employee• What about Sam bringing item up during the
meeting?
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WHAT DO YOU THINK?
Let’s say that instead of bringing the lawn care matter up in a meeting, Sam had asked to be put on the agenda. Superintendent Rebecca doesn’t want to waste time during the regular meeting to discuss this issue. She calls all of the board members prior to the meeting to get their vote on whether to use Brake’s lawn service. Sam is concerned that the board will vote without any discussion so he emails the other Board members his thoughts. Beth doesn’t think this is “legal”, but isn’t sure.
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610.010 (5)PUBLIC MEETING• Any meeting of a public governmental body at which
any public business is discussed, decided or public policy formed
• May be in person, conference call, video conference, internet chat/message board
• Does NOT include an informal gathering for ministerial or social purposes
• Includes a public vote of all or a majority of members in lieu of holding a meeting with the members of the public present.
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610.025
• Any member of a public governmental body who transmits any message relating to public business by electronic means SHALL ALSO concurrently transmit that message to either the member’s public office computer OR the custodian of records (most likely YOU!!)– Only applies to messages sent to TWO OR MORE
members that when counting the sender a majority of the members are copied
– It’s a pubic record!!
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SO…
Superintendent?– No – this is a “straw poll”– Not allowed– Can be construed as a meeting – no chance for
input/discussion
Sam?– Probably ok – just email out– Still a public record! – Still CC the custodian of records!
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BUT…What if, in response to Sam’s email, Board member Abby decides to email all the other board members to tell them that she uses French’s Lawn Care and it is definitely better . She also tells the members (in the email) that the Board should fire Ms. Smith, the math teacher, because Ms. Smith is also the volleyball coach and she did not play Abby’s daughter enough even though she was superior to the other players? Legal?
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BUT . . .
• Maybe• How many emails going back and forth?• Does it look like a meeting?• “reply all”?• Custodian of Records• Subject matter???
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PUBLISH OR PERISHBeth survived her first board meeting. However, there were a couple of decisions made in closed session regarding legal matters. Specifically, the board approved settlements for three lawsuits. Beth seemed to remember reading something about the results being made public, but she’s not sure. Should she make the results of these settlements public? Is she required by law to do so?
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PUBLISH OR PERISH
It depends…• 610.021.(1) – any minutes, vote or settlement
agreement relating to legal actions, causes of action or litigation involving a public governmental body or any agent or entity representing it’s interests or acting on its behalf or with its authority, shall be made public upon the final disposition of the matter voted upon or upon the signing of the settlement agreement
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BUT . . .Missouri State Auditors office• SHALL BE MADE PUBLIC – “active – meaning
there is some affirmative action required on the part of the district than just a passive response of making the settlement agreement available only upon request.”– MSBA disagrees – only need to “make public”
upon request. But, know the auditor reads it differently.
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REMEMBER…
• The SSL has different publishing requirements– School Discipline hearing in closed session• Closed under a number of laws
– Hiring, firing, disciplining or promoting a particular employee• Any vote taken on a final decision shall be made
available with a record of how each member voted to the public within 72 hours of the close of the meeting• Any employee so affected shall be entitled to prompt
notice of such decision during the 72 hour period
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REMEMBER…
• Sealed bids/related documents– Closed until opened publicly (open session)– Contracts – until contract is executed
• Money spent is always open!!• Names, positions, salaries and length of
service are always open!!
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CAN I MAKE A REQUEST
Beth’s year is going along nicely. One day, she receives a letter in the mail asking for copies of all invoices, purchase orders, and other related items for purchases made by the district since 2001. Beth immediately thinks this might be a Sunshine Law Request, but she’s not sure. What should she do in response to this letter?
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CAN I MAKE A REQUEST?
What is a “public record”?• 610.010 – any record whether written or
electronic, retained by any governmental body (district) including reports, surveys, memorandum, or other documents
• Pretty much anything that the district permanently keeps – unless law says otherwise
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CAN I MAKE A REQUEST?610.023 – Must appoint a custodian of records– Make available for inspection and copying the public
body’s records– Acted upon as soon as possible – no later than the end of
the 3rd business day following date request is made– In certain format if available – but NOT required to create a
record– May charge reasonable fees – 10 cents per page, clerical
fees, research fees, etc. (610.026)– REMEMBER – doesn’t need to say SUNSHINE LAW
REQUEST and doesn’t need to be in writing!!
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THE PHONE CALL
Prior to the next meeting, one of the board members informs Beth that she is going to be out of town and will miss the meeting. She asks Beth if there is a way that she may participate in the meeting electronically.Is there?
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THE PHONE CALL
• SSL allows for participation via telephone or other electronic means
• 610.015– All votes shall be recorded– If a roll call vote is taken then attribute vote to
member– Closed meetings must be roll call – and vote to go
into closed meeting– All roll call votes must be physically present OR by
videoconference!!
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THE PHONE CALL
• May participate electronically – phone, chat, skype, face time
• May participate in any discussions – open or closed
• May only VOTE in open session unless by videoconference – then may vote to go into closed session and vote in closed session
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THE PHONE CALL
• What if board voted to go into closed session but wanted to meet by conference call?
• What if board has appointed a committee to develop a new English curriculum? Could a member participate electronically or by phone? Vote?
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GOT A MINUTE?
Beth is getting more comfortable with her new job. One day she receives a request for “all board minutes from the closed session held in April board meeting.” She knows all about the SSL request, but is unsure what to do about closed session minutes. What, if anything, should she give the requester?
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GOT A MINUTE?
Section 610.020– A journal or minutes of open and closed meetings
shall be taken and retained including a record of any votes taken
– Shall include date, time, place, members present, members absent and a record of any votes taken
– Roll call vote – yea/nay attribute in the minutes
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GOT A MINUTE?
• What about any notes Beth might have made while preparing the minutes?– Yes – that’s a record and are subject to SSL unless
closed under another law• When should Beth approve the minutes?– Open in open– Closed in closed
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I SWEAR
The annual election is over and one of the incumbent board members was re-elected! A new board member is elected as well. Beth knows that the new board member needs to be sworn in – but is unsure about the incumbent. Does the incumbent need swearing in?
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I SWEAR
Yes!• A board member needs to be sworn in every
term she/he serves, even if they were previously on the board
• But, what if the new board member can’t make the reorganization meeting to be sworn!! What should Beth do?
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I SWEAR
Couple of different options…• Have member come by office and take the oath• Take the oath over the phone? Maybe…• Swear in at following meeting (could be issues)• Remember – not an “official” board member
until sworn in and take the oath – no votes, etc.
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SPEED ROUND…
• The law requires the Board to have a public comment period as an agenda item
• Board secretary by law is required to sign all final board minutes (BDDG)
• It’s a good idea to always post “closed” session on the agenda, whether there will be one or not
• It’s permissible to video/record closed session
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QUESTIONS?
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THANK YOU!!SCOTT T. SUMMERS
DIRECTOR OF SCHOOL LAWSMISSOURI SCHOOL BOARDS’ ASSOCIATION