Preventing Board Abuse of Open Meetings Acts

Legal Brief

Have you ever been faced with a decision between following the law and looking the other way? Violations of the Open Meetings Act often are predicated on this very conundrum.

Consider these two scenarios:

No. 1: The board of education properly convenes its public meeting and then moves to closed session to discuss discipline of personnel. Once in closed executive session, the meeting takes a drastic turn. The superintendent begins to comply with the law by switching on the recording device. However, the board president firmly directs the superintendent to turn it off. The superintendent objects but quickly realizes the adverse political and employment implications for failing to comply. The closed session proceeds for 20 minutes, at which point the superintendent is directed to turn on the recorder.

No. 2: As the board of education adjourns its monthly meeting, the members decide to go to a local tavern. Once there, board members continue to discuss topics raised during the meeting, specifically mentioning staff members, parents and students. The superintendent reminds them this violates the law, but the conversation continues and the members reprimand the superintendent for being uptight and paranoid.

Facing Reality

These situations ring true for many school system leaders. Your state’s Open Meetings Act (alternatively known as “sunshine laws” that govern openness in government) is a panacea ripe for violation. Administrators must dance between right and wrong, especially when it comes to the behavior of others.

The law is the law. Failure to abide by the law has consequences. Therefore, the simple advice is to always follow the law, but it is not so easy.

The stark reality is that these situations arise quickly and usually require a great deal of adaptive leadership to navigate cleanly. Political problems often become legal realities. So what is an administrator to do?

First, know the law governing meetings of public bodies in your state and educate those around you regularly. This makes it easier to remind them when the ship moves off course. If they have no interest in complying with the law, it may be helpful for the district’s legal counsel to pay a friendly visit to a board meeting to ensure all members understand the potential risks and consequences.

Second, practice what you preach. It is hard for those around you to comply with a law that you, as superintendent, might skirt for the sake of political peace. In the same vein, if you ignore and/or fail to attempt to stop the illegal behavior in the moment, you are just as guilty. Speaking up, although unpopular, may not stop the behavior or protect those who do, but it will lessen your culpability in the process.

If the violations are egregious and you have exhausted all other options, sometimes the only thing left is to legally protect yourself and remove yourself from the situation. That could mean blatant declarations and refusal to comply with illegal direction, such as refusing to turn off the tape recorder and firmly stating why in the first scenario above. Or it could involve subtle actions, such as politely excusing yourself from the situation described in the second scenario.

When all else fails, there are legal protections for those who refuse to engage in or report wrongful and illegal conduct.

Sharp Penalties

No one looks good in an orange, jailhouse-issued jumpsuit or wants to face criminal charges and end up on the front page of the local newspaper. The public today demands transparency, and failure to comply with these types of laws has consequences — in some states, jail time, hefty fines and awarding of attorney’s fees.

Do your best to navigate the political problems to avoid the legal reality. Follow these steps: Educate yourself and others, model good behavior and protect yourself and your school district to the extent possible.

Sara Boucek is associate director and legal counsel of the Illinois Association of School Administrators in Springfield, Ill.
E-mail: sboucek@iasaedu.org
Twitter: @sboucek