The nonprofit lobbying organizations that represent city councils, school boards and other governmental entities are undergoing significant, and much-needed, scrutiny by state legislatures and in the courts.
The disclosure that the (since-removed) head of the Iowa Association of School Boards received an under-the-table raise boosting her annual pay to an eye-popping $367,000 — three times what the governor of Iowa makes — prompted Iowa legislators to patch a loophole in state law and require the IASB to make its records and meetings public just as the Association’s member school boards must.
Associations representing school boards, superintendents and principals wield enormous influence over policy-making at the state level, and are able to trade on their “quasi-public” goodwill when it suits their strategic purposes. But when it comes time to honor journalists’ requests to attend their board meetings, or to see the minutes or notes of past meetings, these organizations often remove their “public agency” hats and put back on their “private corporation” ones.
Courts in South Carolina and New Jersey are weighing whether nonprofit membership organizations that consist of public officials or public agencies can be required to obey state “sunshine laws” that entitle the public to attend government meetings and review government documents.
In the New Jersey case, the State League of Municipalities — an umbrella group for city governments — has convinced a trial judge and an appeals court that its records are not subject to the state Open Public Records Act because the League is not a government agency. The New Jersey Supreme Court just heard arguments on the matter May 4, and as the Philadelphia Inquirer reported on its website, at least one justice sounded convinced that the League (which takes advantage of the state retirement system, and collects millions in dues from local taxpayers) “looks like, smells like, walks like, and quacks like” a government agency.
Legislatures are getting into the act as well. In Texas, a pending Senate bill would give the public a glimpse inside how not-for-profit economic development agencies are spending the public’s money.
Don’t assume that, because an organization is set up as a not-for-profit corporation rather than a government agency, its doors necessarily are shut. For example, state courts have ruled that the governing bodies over college athletics in New Jersey, and over high school athletics in Massachusetts, must abide by state open-meetings laws because they are performing public functions. And in Tennessee, the state open-meetings law expressly includes the meetings of collaboratives, such as the Tennessee School Boards Association, that are “established for the benefit of local government officials.”
If your state sunshine laws aren’t quite as explicit as Tennessee’s, you still may have a case to get access to information about what these “unelected governments” are up to. To build the strongest argument, do a little digging. The more “governmental” the organization is — the source of its funding, the membership of its governing board, the recognition it receives under state law — the greater the chances that the organization must be as transparent as any other government actor.