Here’s a riddle forthe nation’s courts: What do you call a publicly funded lobbying organizationthat seeks exemption from open records laws?
The answer is a schoolboard association, an advocacy organization whose purpose — whether on a stateor national level — is to represent the interests of school administrators.
The question bothstudent and professional journalists would like answered, however, is to whichlaws these quasi-governmental bodies must answer.
The associations oftendo not view themselves as public agencies, so why should they be confined bythe transparency regulations imposed upon such entities?
“Really, what we areis we’re a primary advocate for outstanding public education for all Iowastudents,” said Marti Kline, a spokeswoman for the Iowa Association of SchoolBoards.
Because of recentchanges to state law, that organization does operate under the same disclosurerequirements as other public organizations, “even though we really are not,”Kline said.
But if an associationreceives public funds, however large or small, should it then follow that theyare subject to public disclosure regulations?
“If it were Shell OilCompany who sells gas, just hypothetically, if they sell gas to school buses,they’re providing a service,” said Molly Spearman, executive director of theSouth Carolina Association of School Administrators. “If you go on the groundsthat just because you get state money, then you have to be FOI-able, then thatmeans there are a lot of businesses that are.”
Recent court decisionsand legislative battles have outlined a murky forecast for the applicability ofsunshine laws to state school board associations. Actions in Iowa, as well asSouth Carolina and New Jersey, have muddied the waters when it comes to justhow transparent these organizations are required to be and whether they do,indeed, qualify as public entities.
Sun shines on scandal
In Iowa, the stateschool board association has been included in open records and meetings requirementsfor two years, but it made news recently when financial foibles by its uppermanagement became public.
The Iowa Associationof School Boards’ financial mismanagement spurred the introduction of HouseFile 645, which incorporated an earlier Senate bill, in the state Legislature.The bill was designed to require school-related associations to make theirfinancial records public and require them to abide by the state’s open meetingslaw.
The bill was also anattempt to broaden the regulations IASB has followed since 2010 to cover otherpublic lobbying agents, such as the School Administrators of Iowa, whichrepresents principals statewide.
The school boardassociation came under fire in March 2010 when reports of inflated salaries forits top executives came to light, including more than $350,000 to its thenexecutive director, according to the Des MoinesRegister.
Along with financialreforms for the association, House File 645 had much to say about transparency,for all similar organizations.
The bill would haverequired these entities to post on their websites: a list of the schooldistricts that pay fees or dues to the association and the amounts paid; thetotal revenue the organization receives from the school district, and the netprofit made from products sold to the district by the association; accountingof reimbursements and expenses paid to the ten highest paid employees; and alist of all reimbursements and expenses paid to legislators and lobbyists.
Gov. Terry Branstadvetoed the parts of the House bill pertaining to disclosure in July, saying thelanguage was overly broad and could have unintended consequences on othernon-public entities.
In its advocacy role,the IASB provides services for its “school-board teams,” including programs inboard development and school financial services; conferences for boardsecretaries and business managers; policy and legal services; legislaturelobbying for educational issues; and year-round training opportunities.
Funding for thismission stems mostly from partnership with business services, Kline said. Forexample, a construction firm that provides low-cost counsel on architecture andconstruction planning will pay the IASB a certain portion of the profits forany jobs they contract with schools.
Yet, around 17 percentof the association’s funding comes from member dues paid by school boards.
Though the IASB doesnot consider itself a public body, the organization has had no problems workingunder the sunshine regulations, Kline said.
A courtroom challenge
A South Carolina judgeagreed in August that school board associations do not fall under purview ofthe state Freedom of Information Act.
In that state, a radiotalk-show host, Rocky “Rocky D” Disabato, had requested documents from theSouth Carolina Association of School Administrators. The documents in questionreferred to a debate over federal stimulus funds in the 2009 American Recoveryand Reinvestment Act.
When the associationrefused to hand over the information, Disabato sued.
Circuit Judge G.Thomas Cooper Jr. granted on Aug. 15 the association’s motion to dismissDisabato’s request. While SCASA is partially funded by taxpayers and would fallunder FOIA’s definition of a public body, it is first and foremost acorporation that engages in “core political speech and issue advocacy,” Cooperruled.
“A State ‘cannotforeclose the exercise of constitutional rights by mere labels.’ … However bypinning the label of ‘public body’ onto corporations like SCASA engaging inissue advocacy and political speech this is precisely the effect of the FOIA,”the ruling reads.
Essentially Cooperruled the public’s right to know is outweighed by SCASA members’ FirstAmendment rights not to speak publicly.
SCASA funding comesfrom three principal sources, Spearman said. Along with professionaldevelopment fees and business support, membership fees paid by schooladministrators pay for the association’s lobbying and training mission.
However, many members,from both public and private schools, do pay their membership fees out ofpocket, Spearman said.
“Our members, thoseschool leaders, do have a right to associate and they do have a right to meetand form their own political views,” she said. “And they also have a right todiscuss policies that are important to them and develop those, and because ofthat right to meet and speak out, they are not under the FOIA request.”
Disabato’s attorneysare appealing the case to the South Carolina Supreme Court.
Light at the end of the tunnel
Bright news for transparencyadvocates emerged from New Jersey this fall. The state Supreme Court ruledSept. 20 that the New Jersey State League of Municipalities — a nonprofit thatrepresents the state’s 566 municipalities — was subject to open records law.
The league meets thedefinition of a public agency under the state’s Open Public Records Act, the6-0 decision held. In part that decision stems from the fact that 16 percent ofthe league’s budget comes from taxpayer funds via membership fees from eachmunicipality, according to the ruling.
In this instance, thejudge ruled, the organization was an extension of the governmental bodies thatcomprised it, despite being a corporate entity.
Though the court didnot rule specifically on school associations, the league is of a similarcomposition to the New Jersey School Boards Association, which bills itself asa “federation of district boards of education.”
By Nicole Hill, SPLC staff writer