School boards and other government bodies required to admit the public to their meetings have come up a cute, but not especially persuasive, way of doing their business behind closed doors: By not calling their meetings “meetings.”
When a bunch of government officials sit around a table and talk about government business, common sense, Webster’s dictionary and 20-20 vision say that’s a “meeting.” Regrettably, some government officials who distrust the public’s ability to maturely deal with information — or who realize their behavior is so deplorable that it can’t withstand public scrutiny — will go to extraordinary lengths to argue otherwise.
They’ll claim to be holding a “working session” or some other euphemism that sounds less “meeting-like.” That may be reassuring for their consciences, but it’s rarely a legally adequate justification to shut the public out.
Recently, a Rhode Island judge ordered that state’s Board of Education to invite the public to an “informational retreat” where board members were scheduled to discuss high school graduation requirements and standardized testing. Despite the obvious public interest in those issues, the board’s lawyers argued — unsuccessfully — that state law allowed the board to close the meeting because no votes were being taken. The judge believed otherwise.
Under most state laws, even non-voting meetings must be opened to the public so long as enough members of a board or committee are present. (In most states, a gathering is not legally a “meeting” unless a voting majority or “quorum” attend, so two members can legally have a “working lunch” without giving public notice, taking minutes or observing other legal formalities.)
As New York’s open-government agency advised a newly elected school-board member who took part in a “retreat” that was not held in accordance with the state open meetings law: “The terms ‘work session’ and ‘retreat’ are not found in any aspect of the Open Meetings Law … when a majority of a public body gathers to discuss public business, in their capacities as members of the body, any such gathering, in my opinion, would constitute a ‘meeting’ subject to the Open Meetings Law.”
This just makes sense. The purpose of open-meetings laws is not so the public can watch the vote — the vote is the least informative part of the meeting (and it’s necessarily going to show up in the minutes anyway). The purpose is for the public to see what considerations (including perhaps self-motivated considerations) were behind the vote.
Importantly, once a meeting has been unlawfully closed to the public, then the illegality “contaminates” the decision, and the taint cannot simply be “cleansed” by rubber-stamping it afterward.
That was the ruling of the Kentucky Supreme Court last year in a case, Carter v. Smith, involving closed-door discussions to allow an embattled county school superintendent to step aside into a high-paying “consultant” role at nearly 50 percent more than his superintendent salary. Although the school board ratified the deal in the public part of the meeting, the decision was void because all of the discussions took place during an unlawfully closed session:
When conversations and actions regarding the public’s business should not have occurred in private in the first place, an agency cannot render those actions valid by simply taking a vote in open session without any discussion of the matter.
A journalist who is denied access to a meeting where multiple members of a board or committee are discussing government business — not just three members of the president’s staff or the superintendent’s staff, but a committee that has some policy-making or advisory role — should respectfully ask that a vote be taken on the record before the public is excluded. It’s surprising how government officials at times lose their nerve when they realize they’ll be held personally responsible for a potentially illegal vote disrespectful of the public’s right to know.