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Is It Time for an OMA Refresher?

Joel Gerring

By Joel Gerring, MASB Assistant Legal Counsel

DashBoard, Nov. 1, 2017

Nothing seems to confuse school boards, or confound superintendents, quite like the Open Meetings Act. MASB’s Legal Department continues to field many calls regarding OMA compliance, especially from community members who are often attempting to report what they believe to be an OMA violation by their local school board. (Community members often hold the mistaken belief that MASB is an enforcement agency.)

The Open Meetings Act is as confusing as it is complex. Among other things, it outlines how meetings must be noticed to the public, governs the formation of subcommittees and provides penalties for noncompliance. The Act provides us with a specific definition of a “public body,” as well as what constitutes a “meeting” versus other types of permissible gatherings. The single most discussed aspect of the OMA is, of course, closed session procedures and requirements, and it is closed session matters where most school boards generally run into trouble. The uncertainties range from when and how to schedule a closed session and the proper procedures for calling a closed session, through transitioning back into an open session and creating/maintaining closed session minutes.

With respect to closed meetings, OMA provides for very narrow, specific circumstances within which a public body may take up a matter in private; and while each circumstance appears self-explanatory, there are nuances that must be understood in order to avoid an illegal meeting. There is inherent ambiguity within the closed meeting exceptions and boards are expected to err on the side of openness. For instance, closed sessions may occur in situations involving complaints against an employee, but only if the employee requests such. It is not “automatic.” Likewise, while discussions concerning the board and the employee may occur behind closed doors in a closed session, an individual making a complaint during the public comment period of an open session must be given full opportunity to address the board, within the established time limits, decorum limits and so forth. Finally, after closed session deliberations occur, the public body must reconvene in an open session to render a decision (if necessary) on the matter and vote; all of which must be reflected in the minutes of the open meeting.

Another allowable reason to conduct a closed meeting is the “pending litigation” exception; however, this exception is also one that leads to some confusion and, occasionally, some abuse. Pending litigation does not allow a board to meet with an attorney behind closed doors regarding “possible” litigation, nor does it allow a public body to enter closed session simply to discuss “general legal matters” with their attorney. Likewise, there is a separate exemption for attorney/client privilege matters (exempt materials) that is different from the pending litigation exception, but that also does not and cannot cover every interaction a board may have with its lawyers.

Finally, a relatively newer concern for board members is social media interaction and if, or when, such interactions might constitute a “meeting” in violation of OMA. With such an involved and nuanced law, there are many situations that could catch unsuspecting board members unaware. If you believe that your board could use a refresher on the ins-and-outs of the Open Meetings Act, don’t hesitate to contact us. MASB offers a wide array of school board training courses, including a specific course dealing with the Open Meetings Act. 

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