ATTORNEY GENERAL ISSUES OPEN MEETINGS ACT OPINION THAT REQUIRES SCHOOL BOARDS TO CHANGE HOW THEY AUTHORIZE CONTRACTS AND SETTLEMENT/SEPARATION AGREEMENTS
By Parker Himes
In recent months, we’ve reported on legislative changes to the Open Meetings Act (“OMA”) and Attorney General (“AG”) opinions that impact how school boards conduct business at their meetings. We first reported in November 2012 that the OMA now requires agenda items to be sufficiently specific to apprise the public of the nature of the actions to be taken. For example, simply listing “personnel matter” would not be acceptable. In October 2013, we reported that the AG would require, as part of a motion to authorize an employment action, that the particular employee be identified by name. No longer could a school board, for example, authorize the discipline or dismissal of “Employee A”.
On April 10, 2014, the AG issued another opinion addressing the requirements of the OMA and which requires a significant departure in practice concerning how most school boards conduct business. The opinion concerns a public body’s obligations pursuant to the “final action” provision of the OMA, which reads, “Final action shall be preceded by a public recital of the nature of the matter being considered and other information that will inform the public of the business being conducted.” According to the AG, in order to satisfy this requirement, school boards and other public bodies must provide a ver bal expl anati on of t he “pe rt i nent ter ms” of its action at the meeting before the public body can proceed to consider taking action.
At issue in the dispute was a board of education vote approving a separation agreement and release with its superintendent. At the board meeting, the board president identified the nature of the final action being taken: a separation agreement between the board and the superintendent. Further, the district had posted the separation agreement as a viewable attachment to the board of education’s meeting agenda found on the district’s website.
Even though the board president at the board meeting identified the nature of the final action being taken and the identity of the employee involved, and had posted the separation agreement as a viewable attachment to its agenda posted on its website, the AG found that these actions were not enough to satisfy the OMA. The AG noted that the school board did not “publicly discuss or summarize the terms of the agreement, which included a $177,796.97 lump sum payment to [the superintendent], or the reasons that led to the parties’ agreement to terminate [the superintendent’s] employment.”
In the dispute, the school board argued that it would be absurd to interpret the OMA to require public bodies to read in full each agreement on which final action is being considered. The AG agreed, only to direct that the OMA requires the “pertinent terms” of the agreement be verbally recited or summarized. Importantly, however, the AG has not issued guidelines detailing what it considers to be “pertinent terms” of a matter on which the board of education is considering final action. Further, the AG did not limit this new requirement to strictly employment matters, thus making them seemingly applicable to any final action being taken by a public body.
The AG’s opinion is “binding” upon only the school district that was subject to the OMA complaint. Nevertheless, the opinion is instructive as to how the AG would respond to similar complaints against other public bodies and thus should be given careful consideration by all. Scariano, Himes and Petrarca is monitoring the decision and is prepared to assist you with preparing for your next board meeting.