It’s common for school boards to meet privately in a “retreat” setting to discuss what they deem to be internal matters. In fact, organizations such as NYSSBA encourage them to do so and make professional facilitators available for their purpose. But individuals have challenged the legality of some retreats, contending that these were actually meetings to discuss public business and should have been open to the public. In advisory opinions, the state Committee on Open Government (COOG) has concurred with the challengers in some cases but found retreats to be lawful in others.

COOG, which was created by the Legislature in the 1970s to answer questions about the state’s Freedom of Information Law and the Open Meetings Law, based its opinions concerning school board
retreats on the stated agendas of those discussions. It has opined that it is lawful for school boards to hold private retreats conducted for the purpose of:

• Receiving training.
• Improving teamwork or communication skills.
• Discussing interpersonal relations among board members.

According to the committee, “If the gathering is to be held solely for those purposes, and not to conduct or discuss matters of public business, and if the members in fact do not conduct or intend to conduct public business collectively as a body, the activities occurring during that event would not ... constitute a meeting of a public body subject to the Open Meetings Law.” (OML-AO-3709)

But the committee frowned upon other retreat topics being discussed behind closed doors by a quorum of board members. In response to specific case facts, COOG has advised that the following topics presented at retreats were public business that should have been discussed in a meeting open to the public:

• Superintendent’s goals and district goals. (OML-AO-3709)
• Policies and procedures under which the board and its members operate. (OML-AO-3709)
• Roles and responsibilities of board officers and board committees. (OML-AO-3185)

The definition of a “meeting” has been interpreted broadly by the courts. Any gathering of a quorum of a public body for the purpose of conducting public business is a meeting regardless of the manner in which the gathering may be characterized, with the notable exception of an executive session portion of the meeting.

[Executive sessions are portions of a public meeting that may be closed to the public after announcing the board’s intent to discuss certain topics specified by law. COOG has said that the motion to enter into executive session should describe the topics to be discussed with enough detail to satisfy the public’s right to know.]

It’s clear from the COOG’s opinions on board retreats that the intent of the school board in organizing such a gathering is of central interest. Section 102(1) of the Open Meetings Law defines the term “meeting” to mean “the official convening of a public body for the purpose of conducting public business.” (emphasis added)

When a quorum of the board gathers to discuss public business the public must be notified and allowed to attend, regardless of whether a vote is planned. For instance, a “work session” to conduct public business is a meeting that must be open to the public even though the board or a committee of the board may not be voting on any action item.

On the other hand, if there is no intent that the quorum will gather for the purpose of conducting public business, then the Open Meetings Law would not be applicable and the meeting may be held privately.

In the case of board retreats, the distinction between topics that would constitute “public business” and those that would not can be nuanced. For example, the establishment of district goals has been determined to be public business by the Committee on Open Government and therefore is not appropriate for a retreat. However, if the discussion was limited to the process by which a board would set goals, then it would not be a discussion of public business and, therefore, not a “meeting” subject to the Open Meetings Law.

In a case that involved this topic, COOG advised that a retreat held for board development in the process of setting goals, in which a consultant provided a presentation in the development of a school district vision, mission and goals, was not a meeting that had to be open to the public. Of significant import was that at no time during the retreat were a vision, a mission or board goals established. (OML-AO-4762)

In light of the subtle distinctions in ascertaining “public business,” it is advisable that boards consult with their school attorney before convening a retreat to review the information and material to be presented at the retreat.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Neil M. Block of Ingerman Smith, LLP.