SUNSHINE LAW FOR BEGINNERS AND EXPERTS

DIRECTOR OF SCHOOL LAWS MISSOURI SCHOOL BOARDS’ ASSOCIATION SCOTT SUMMERS DIRECTOR OF SCHOOL LAWS MISSOURI SCHOOL BOARDS’ ASSOCIATION summers@msbanet.org 1-800-221-6722

MSBA POLICIES BCE BDA BDC BDDA BDDB BDDF BDDG BDDG-R BDDH BDDL

BASICS All meetings and records are open to the public with limited exceptions Courts will assume a meeting or record is open unless proven otherwise

BASICS 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 law Any committee appointed by or at the direction of the board that is authorized to report to the board or superintendent

BASICS School board Committees created by the board - custodian of records is required to keep a list! AG Opinion – committee created by the superintendent

EASY PEASEY Julie is the new board secretary for the North East Central school district. The district’s regularly scheduled board meeting is on the 3rd Tuesday of each month beginning at 6:30 p.m. The next meeting of the board will be Julie’s first board meeting. She’s been very busy with registration and the beginning of school and suddenly realizes on Tuesday morning that she forgot to post notice and the agenda for the meeting? Suggestions?

EASY PEASEY 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 discussed

EASY PEASEY Julie violated the SSL Probably ok to hold the meeting It’s on the usual night Make a note in the minutes ALWAYS acknowledge mistakes!!

JUST ONE MORE THING… Julie survived her first board meeting! She doesn’t forget to post notice and the agenda for the next meeting. Feeling confident, Julie goes into the meeting ready to take minutes for the items on the agenda. But before the meeting even gets started, board member Fred asks that he be permitted to put an item on the agenda. Julie seems to remember this is not a good idea. Is it?

JUST ONE MORE THING… Bottom line – no. Violation of SSL The SSL requires the district to provide at least 24 hours notice of the agenda. Board packets usually go out several days prior to the meeting The agenda may be changed after the packets go out – but remember to change the posted agenda too! Must finalize it 24 hours prior to meeting!

JUST ONE MORE THING… Notice should be on a bulletin board or other place easily accessible to the public – designated for that purpose At least 24 hours prior to meeting – exclusive of weekends and holidays when facility is closed – unless for good cause Internet meetings – post on web page Time, date, place Tentative agenda Closed meetings – same as open but list the reason for closing by statutory reference (610.021)

CAN YOU HEAR ME NOW? The year is progressing nicely for Julie. One day she gets an email from board member John. John tells Julie he won’t be able to make the upcoming meeting because he’ll be out of town. It’s going to be an important meeting because the board will be discussing a very touchy personnel issue in closed session. Julie seems to remember that John might be able to participate in this meeting but can’t remember the details about how. Suggestions?

CAN YOU HEAR ME NOW? Section 610.015 The SSL allows for participation via telephone or other electronic means All votes shall be recorded If a roll call vote is taken – then attribute vote to member All closed meeting votes are roll call votes All roll call votes must be physically present or by videoconference

CAN YOU HEAR ME NOW? John may participate in the meeting electronically – phone, chat, Skype, FaceTime May participate in any and all discussions – open or closed BUT – May only VOTE in open session unless he participates by videoconference Then John may vote to go into closed session as well as participate in any vote taken in closed session

CAN YOU HEAR ME NOW? Follow up: What if the Board voted to go into closed session but then wanted to have a conference call in closed session? OK? What if the Board has appointed a committee to develop a new English curriculum? Could a member of the committee participate by phone or electronically? Vote?

WHO WANTS TO KNOW? So, the board has the closed session meeting and John is able to participate. The board votes on the personnel issue. Julie is unsure how to share the result of the vote. What is she required to do?

WHO WANTS TO KNOW? Section 610.021.3 Any vote on a final decision . . . to hire, fire, promote, or discipline an employee 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 affected shall be entitled to prompt notice of such decision during the 72 hour period before such decision is made available to the public

WHO WANTS TO KNOW? Made available to the public 2 different interpretations of this MSBA – not an “affirmative” duty to actually provide it. Only if someone requests MEC – affirmative duty to provide it regardless of whether it is requested

WHO WANTS TO KNOW? Our story Julie only needs to provide if requested Has an obligation to provide employee with the outcome Personal Information Information relating to the performance or merit of individual employees

CAN I MAKE A REQUEST? After the meeting, a patron of the district makes a records request – specifically a copy of the notes (if any) that Julie took during the closed session meeting. Julie did take notes but threw them away immediately after the meeting concluded. What should she do?

LET’S REVIEW! MINUTES Required to take minutes – in open and closed session Minutes only need to include Date Time Place Members present/absent Record of any votes taken – if roll call must attribute vote to name of BM (Name of district/brief sentence on items discussed)

LET’S REVIEW! RECORDS Pubic is entitled to inspect or copy district records unless they are closed under law May charge for copies Any record retained by district Physical or electronic Includes drafts of minutes AND notes you take during meetings!!

LET’S REVIEW! CUSTODIAN OF RECORDS District must appoint a custodian of records Responsible for maintaining records The person who receives the SSL requests Records must be disclosed within 3 business days following the date the request is received by CoR Identity made available on request

LET’S REVIEW! Any person may request records Doesn’t have to be a resident, or even a citizen (can be a business, corporation, etc.) Request does not have to be in writing Good idea to request it in writing though or have a form Doesn’t even have to use the term “Sunshine Law” in the request

LET’S REVIEW If request is not granted w/in 3 days, must explain why and give a date when made available Can make them wait for “good cause” (time to get records together If denied – must provide a written statement for grounds for the denial and cite statute

LET’S REVIEW Remember – not required to “create” a record!! If requested in certain format, must provide if available (Excel, Word, etc.) – but NOT required to purchase specific software to comply If record includes some open and some closed information, district must separate (redact) and make record available

LET’S REVIEW CHARGING Not a fundraiser – heavily regulated BDDL Can require prepayment Not more than 10 cents for up to 9x14 paper Charge for duplication time – average hourly rate of pay for district clerical staff (not necessarily YOUR rate) Research time – actual cost using lowest cost employees

CAN I MAKE A REQUEST? Were Julie’s notes a record? Would she have had to provide them? Does she need to re-do them? What’s the lesson?!!

CAN I MAKE A REQUEST, II One morning, Julie receives an email from a company whose business is out of state. The request is for payroll information district employees. The company is asking for check numbers, the amount of the check, and the gross and net each month for each employee until further notified. How should Julie respond to this request?

CAN I MAKE A REQUEST, II Out of state company making request? Ok – still needs to respond Specific information sought? Are they public records? Any exceptions? Section 610.021.13 – no exemption for names, positions, salaries, and lengths of service for employees

CAN I MAKE A REQUEST, II Julie needs to respond within 3 business days if possible. Check numbers, gross/net are not public record Arguably the “amount” of each check could be the salary of the employee Suggest responding with the SSL requirements listed above and see what response they have Always a good idea to check with attorney first!

OTHER STUFF New board member can’t make it to reorganization meeting? MUST put statutory reason for going into closed session (Personnel, 610.021.13) ONLY put items on agenda if you are going into closed session – no “standing” items whether you use them or not No requirement to have public comment Approve open minutes in open/closed in closed

Director of School Laws Missouri School Boards’ Association THANK YOU!! Scott Summers Director of School Laws Missouri School Boards’ Association summers@msbanet.org 1.800.221.6722