The state Open Meetings Law (Public Officers Law, Article 7) is quite succinct, and its terms are often subject to interpretation. School board members often express a sense of uncertainty as to whether they are conducting meetings in full compliance with the law. This article will provide an overview of some key legal concepts and practical information for holding a school board meeting in compliance with the Open Meetings Law.
What is a meeting?
Meetings are a gathering by a quorum of a public body at a designated time and place, where public business is discussed. The occurrence of a vote is not a requirement for a meeting to be covered by the Open Meetings Law.
A quorum is not less than a majority of the total membership of the board; it is not merely the majority of those present at the meeting. A quorum may be obtained via video conference. If a board member is participating in the meeting by video conference, the notice must also identify the address of the location where the board member is present.
Meetings of a committee or subcommittee that consist solely of board members that discuss or conduct public business are subject to the Open Meetings Law. In contrast, meetings of board advisory committees that do not exist exclusively of board members, are purely advisory in nature, make recommendations to the board, and do not perform governmental functions are not subject to the Open Meetings Law. Audit committees perform a governmental function and, therefore, their meetings are subject to the Open Meetings Law.
The Open Meetings Law does not prohibit members of a public body from conferring individually by telephone, mail, email or text. However, a series of communications between individual board members which results in a collective decision, or a vote taken, could be an improperly convened meeting in violation of the Open Meetings Law. While information can be distributed to and exchanged by school board members through telephone, mail, email or text, it is required that members refrain from using that channel of communication to engage in a group deliberation of the matter at hand.
A board retreat or attendance at a seminar/workshop or meeting is not a meeting under the Open Meetings Law, provided that school business is not discussed (e.g., the meeting is to receive training, improve communication skills or discuss interpersonal relations among board members). Also, conferring with school counsel to receive legal advice is not a “meeting” subject to Open Meetings Law requirements.
Notice of school board meetings
Generally, notice of the time and place of the meeting must be given to the public and news media no less than 72 hours prior to the meeting. Notice must be given to the news media and posted in one or more conspicuous public locations and on the school district’s website at a reasonable time prior to the meeting.
While the Open Meetings Law does not make specific reference to “special” or “emergency” meetings, boards may convene lawfully meetings scheduled less than one week in advance with less than 72-hour notice, provided that to the extent practicable, notice must be given to the news media and posted at a reasonable time prior to the meeting.
Executive sessions may not lawfully be scheduled in advance. However, districts may, as a courtesy, put community members on notice that it is anticipated that the board will entertain a motion to enter into executive session at a specific time.
Although school boards are required to provide notice of when and where meetings will take place, the notice does not have to specify the business to be discussed and/or transacted. Nonetheless, when the board is calling a “special meeting,” it may be appropriate to inform the public of the purpose of the meeting.
Unintentional failure to comply with notice requirements alone is not grounds for invalidating board action. However, a court can void action taken by a board at a purported meeting if a violation of the notice requirements is intentional.
While many school boards prepare agendas and have policies requiring the same, the Open Meetings Law does not require an agenda.
When presenting an item on an agenda for vote, the board president should seek a motion and a second. An exception to requiring a second on a motion is the nomination of board offi cers at the reorganization meeting. A motion to nominate a board offi cer does not require a second. The process is as follows: Is there a nomination to fi ll the offi ce of President of the Board of Education? Are there any other nominations? Being no other nominations, I hereby close the nominating process for that position. All in favor of the nominated board member? All opposed? Any abstentions? Be sure that the board’s practices also align with board policies.
The board president should verbally seek all ayes, nays and abstentions on every vote. It is the duty of every board member to cast a vote on a presented action item. A board member may abstain from a vote and does not have to present a justifi cation for the abstention unless required by board policy. An abstention has the effect of a negative vote.
Public participation at board meetings
There is no statutory requirement that school boards allow members of the public to speak at school board meetings (except in New York City). However, the commissioner of education has encouraged school boards to allow citizens to speak, whenever possible, on matters under consideration.
The commissioner has ruled that since there is no statutory obligation to have any public comment at a board of education meeting, boards are not compelled to give nonresidents the opportunity to speak at public board meetings, even when the board has a policy permitting residents to speak. However, the Committee on Open Government has reached the opposite conclusion, concluding that it would be unlikely that a public body could validly prohibit a nonresident from speaking at a public forum based on residency. In considering whether or not to allow non-residents to speak at board meetings, consult with the board’s attorney and be consistent with board policy.
It is appropriate for a school board to limit the amount of time allotted to a person who wishes to speak at a board meeting, so long as the limitation is reasonable.
An executive session can only take place upon a majority vote of the total membership of the board taken at an open meeting and is only permitted for specific purposes enumerated in the statute, such as discussion of collective bargaining negotiations or certain personnel matters related to a particular person.
The motion to enter into executive session must specify the subject or subjects to be discussed with sufficient detail to enable the members of a public body, as well as the people in attendance, to ascertain whether the issue(s) may properly be discussed in private. For example, a stated motion to enter executive session to discuss “litigation, personnel and negotiations” is insufficient. An example of a proper motion is: “I move to enter executive session to discuss the employment history of a particular staff member known to the board of education.” (When entering executive session to discuss personnel matters of a particular individual, the school board is not required to identify the person or position that is the subject of the discussion). Another example is: “I move to enter executive session to discuss negotiations with the teachers association.”
Attendance at an executive session shall be permitted to any member of the public body and any other person authorized by the public body. Although the Open Meetings Law permits the attendance by non-board members in executive session, it does not allow for the disclosure of confidential information to those non-members. Disclosure of confidential information acquired by a board member in executive session may lead to that board member being removed from office because such action may violate the board member’s oath of office, fiduciary duties, a district’s code of ethics and General Municipal Law Section 805-a, which provides that no municipal officer or employee may disclose confidential information acquired by him or her during the course of his or her official duties or use such information to further his or her personal interests.
No official action by a school board can be taken on matters discussed in executive session without first returning to open session. Therefore, no minutes should be taken. An exception is voting to file charges against a tenured employee pursuant to Education Law Section 3020-a. The minutes of that action shall consist solely of a record or summary of the final determination of such action, and the date and vote thereon. Minutes taken in executive session must be made available to the public in accordance with the Freedom of Information Law within one week from the date of the executive session in contrast to two weeks for minutes of a public meeting.
The Open Meetings Law does not prescribe the manner in which executive session must end or at what stage of an open meeting that executive sessions must be held. The Committee on Open Government has recognized that if an executive session is followed by the continuation of an open meeting, a public body will typically inform those in attendance that the open meeting will be resumed and either return to the location of the open meeting, or if the public was excluded from the meeting room, invite the public to re-enter the meeting. If the executive session is held at the end of a meeting and no other business is conducted, the end of the executive session is generally at the end of the meeting.
Violations of the Open Meetings Law
A legal challenge under the Open Meetings Law must be made in a court of law. The Commissioner of Education does not have jurisdiction to decide alleged violations of the Open Meetings Law. If a school board has violated the Open Meetings Law, a court can: (1) declare that the school board violated the law; (2) declare void the action taken in violation of the law; (3) order the school board to participate in a training session conducted by the Committee on Open Government; and/or (4) award attorneys fees to the successful party.
The school board may be able to “cure” an open meetings law violation by taking a new vote on the defective action item.
Solicit the advice of the school board’s attorney on specific Open Meetings Law questions that arise in your school district.
Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Neil Block of Ingerman Smith, LLP.