Open Meetings Act shouldn’t bar boards from regular meeting non-action talks
Kentucky School AdvocateMay 2016
By Brad Hughes
KSBA Director of Member Support/Communications Services
During one of the Ethics and the School Board Meeting clinics at this year’s KSBA conference, a board member asked if the Open Meetings Act forbids school boards from talking about items not on the agenda of a regular meeting. Another participant added that her local board attorney said that they couldn’t have a nonspecific “discussion” section on a regular board meeting agenda.
As I stated at the time, I’ve never heard of such a prohibition. In fact, it seems foolish to suggest that school boards or other public bodies can’t choose to discuss something that they might take action on down the road. But I promised to do a little research before offering my opinion.
To be sure, school boards should always consult with their board attorneys on a legal question that may factor into their decisions. But a founding principle of the American justice system has one attorney advocating “this” position and another brethren-of-the bar backing “that” side. That’s how the legal system works.
AG and common sense
Rather than take a layman’s approach to the research, I asked KSBA staff attorney John Fogle – a veteran of both school law and open meetings issues for many years – about the matter. He drew my attention to two Kentucky attorney general’s decisions related to school board meetings.
In a 2010 challenge in Hardin County, the AG decision held that a school board could have an item on its agenda that did not require direct board action. In that case, the board discussed matters at a luncheon meeting or working session– as some Kentucky boards do – recorded that it discussed the item in its minutes, but took no action until a later meeting. In this case, a work session was built into the board’s regular meeting schedule.
In a 2014 appeal to the AG’s office out of Graves County, the complaining party wanted the AG to rule that a board’s discussion of an issue that did not result in action being taken had to be recorded in the minutes of that special meeting. The AG again held that the Open Meetings Act doesn’t require such discussions that are not immediately acted upon by the board be reflected in the minutes.
One takeaway Fogle notes from these rulings is that the Office of the Attorney General sees nothing in the Open Meetings Act that bars a school board from discussing an item that isn’t also being acted on at that same meeting. However, the law does require that discussions at a special meeting must be reflected on the meeting notice and agenda. Some local board policies on creating the agenda specifically allow it to be amended by majority board vote to deal with matters requiring immediate action. The act does NOT allow this flexibility for special meetings.
So, no, the Open Meetings Act doesn’t specifically read, “School boards or other public bodies may talk about things not on their regular meeting agendas.” But neither does the law prohibit a discussion minus related action at the meeting.
The Final Word
The argument that board/superintendent teams can’t discuss a topic and agree that it will be brought up for action at a future meeting is not common sense. It would mean that anything that came up between the public notice of a regular meeting – and the meeting time itself – would either require a special meeting or would have to wait another month for discussion and action. That’s being way too cautious.
School boards must observe and abide by the Open Meetings Act. They are public bodies and, except for the specific exceptions, their meetings must be open to their public. But no one should try to put prohibitive language in the law when it’s just not there.
And that’s a message worth getting out.