Meetings in the Sunshine – Compliance with the Open Meetings Law

There is an old adage: “bad facts, make bad law.” As legal advisors to school board members and school administrators, our job is to ensure that your school district is not put in a position to create bad law. Nowhere is this more important than your responsibility to operate your school districts in a transparent fashion in accordance with the requirements of the Open Meetings Law.

The Open Meetings Law, which can be found at Public Officers Law Article 7, is grounded in the principle that the business of government agencies, funded by taxpayer dollars and carrying out essential public services, must be conducted in an open and public fashion to provide members of the public the ability to oversee and respond to the activities of its duly elected officials and public servants. The Open Meetings Law requires public bodies to conduct their business in meetings that are open to the public. Given the recent decision from Onondaga County regarding the nonrenewal or termination of a school district’s long time football coach, the time is right to provide a primer on the requirements of the Open Meetings Law and the Freedom of Information Law.

As a general principle, school districts must understand that the presumption of the Committee on Open Government, the agency who enforces this law, is that everything is open to access by any member of the public. This is true of school district records and the business that is conducted by school boards in their meetings. The law does set forth specific exemptions from both the open meetings requirements and the access to public records that fall within three primary categories: (1) those that are designed to protect the privacy of personal information; (2) those that are designed to protect law enforcement activities and personnel; and (3) those that are designed to ensure that negotiations for services, labor, and other types of contracts are not prejudiced or negatively impacted by the sharing of information. A failure to comply with the rules of the Open Meetings Law can subject the board of education or other public body to a declaratory judgment or injunctive relief nullifying decisions made improperly or behind closed doors and an award of attorneys’ fees and other litigation costs incurred by the party seeking to enforce the law.

What does this mean for school districts and other public bodies? It means that the rules and requirements of these laws need to be taken seriously and public bodies including boards of education need to implement policies and procedures that are designed to ensure transparency and compliance with the law.

It is important to note that any official convening of a public body for the purpose of conducting public business is subject to the open meetings law. This includes “workshops” or “work sessions,” even where there is no intent to take action in those meetings. The mere fact that the public body is convening to discuss public business is sufficient to invoke the coverage of the open meetings law. Notice must be given of the time and place of all meetings at least 72 hours in advance if the meeting was scheduled a week in advance and for meetings that are scheduled less than one week in advance, to the extent practicable prior to the meeting. Such notice must be provided to the public and the news media by posting online and in one or more designated public locations. Notice must be given to the news media, but it does not need to be published in the newspaper or other media source. A board may go into executive session, which is a closed portion of the open meeting where the public is excluded and only specific individuals are invited to participate.

The following steps must be taken to close the public meeting and to go into executive session: (1) a motion must be made during an open meeting to go into executive session; (2) the motion must identify the general are or areas of the subject or subjects to be considered during the executive session; and (3) the motion to go into executive session must be carried by a majority vote of the total membership if the public body (not just a majority vote of those present). The subject to be discussed in executive session needs to be specific enough to identify what will be discussed, but not so specific that it discloses the personal information of the person to be discussed in executive session. A statement that the executive session is being called to “discuss personnel matters” is not sufficiently specific to justify the executive session; a statement that an executive session is being called to discuss “the employment history of a particular person” is sufficiently specific to justify the executive session.

The following is a list of what can be discussed in executive session. In no case can a board vote to appropriate public moneys in an executive session; they may, however, discuss the following: (a) matters which will imperil the public safety if disclosed; (b) any matter which will disclose the identify of a law enforcement agent or informer; (c) information relating to the investigation or prosecution of a criminal offense which would imperil law enforcement if disclosed; (d) discussions regarding proposed, pending or current litigation; (e) collective negotiations; (f) the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation; (g) the preparation, grading or administration of exams; and (h) the proposed acquisition, sale, or lease of real property or the proposed acquisition of securities, or sale of exchange of securities held by the public body, but only when publicity would affect the value of the property or securities.

Not only must meetings of a public body be held in public, minutes must also be taken of the proceedings. The minutes, which are typically posted on the public body’s website, must create a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote of each member of the body in attendance on such matters. Although executive sessions may be held behind closed doors, minutes must be taken in those sessions as well. These minutes must create a record or a summary only of the final determination of any action that is taken by formal vote during the executive session (i.e., the motion to leave executive session). The summary in the minutes from an executive session should exclude any information which is not required to be made public. Minutes from open sessions of the public body must be made available within two weeks of the date of the meeting; minutes from executive sessions must be made available to the public within one week of the meeting.

The importance of complying with the requirements of the Open Meetings Law cannot be overstated; transparency and the appropriate sharing of information with taxpayers and members of the school community is essential to the credibility of the board and its ability to retain support for the school district’s educational programs and commitment to student success. If you have any questions regarding your obligations under the law or require assistance in developing appropriate policies and procedures to ensure compliance with the law, please contact us.