What Can Board Members Discuss Outside of a Public Meeting?

With the ban on serial meetings taking effect September 1, many school board members are asking for better guidance of what exactly constitutes a serial meeting and also when and with whom they can discuss which topics without violating the Open Meetings Act (OMA).

In 2012, the Alabama Supreme Court ruled that serial meetings did not violate the OMA. That ruling, along with two others, led open meetings advocates to claim the Alabama Supreme Court had gutted the OMA.

During the 2015 legislative session, two laws were passed to clarify the intent of the OMA: Act 2015-340 and Act 2015-475.

Act 2015-340 prohibits serial meetings and clarifies that the OMA applies to committees and subcommittees of the board. It also specifically allows citizens to file suit if they are impacted by the actions taken during a meeting that violates the OMA.

Act 2015-475 added language to allow for specific exchanges of information or background to occur among board members in specific circumstances.

At the time the bills were passed, Sen. Cam Ward (R-Alabaster) said, “We have now strengthened the original intent of the Open Meetings law by forbidding members of a government board from holding secret meetings to collude on issues that should be discussed in the open.”

As a result of the passage of these amendments to the OMA, there has been confusion over what two school board members can discuss outside of a public meeting.

One school board member said that his board had decided they just won’t speak to each other outside of their public board meetings to avoid violating the OMA.

In a recent work session with the Scottsboro Board of Education, board attorney Steve Kennamer gave this simple advice to board members: “No deliberation outside of a meeting, no polling ever, no serial meetings ever”. “Polling” refers to asking other board members how they’ll vote on a particular issue, a big no-no according to Kennamer.

When pressed by Scottsboro Superintendent Dr. Sandra Spivey for a clearer definition of whether board members are ever allowed to discuss topics expected to come before them for a vote, Kennamer said that board members should be very cautious, because even if the board member doesn’t actually violate the OMA, deliberating outside of a public meeting can open up a board member to legal action.

And while school districts are authorized to pay for the legal defense of a board member sued for violating the OMA, any judgement levied against that board member must come out of the board member’s personal funds.

How Can Board Members Stay in Compliance with the OMA?

What follows is an attempt to create simple and logical set of questions for board members (and citizens) to ask when trying to determine whether board members are in compliance with the OMA.

Because all meetings, whether of the full board or any committee or subcommittee of the board, are subject to the provisions of the OMA, we begin with the expectation that the following questions need to be asked when board members are having discussions outside of an official “meeting”.

The first question to be asked is with whom is the board member having a discussion?

If the board member is speaking with anyone other than another board member, then no violation has occurred.

For example, a board member can speak with the superintendent directly about any issue at all. And a board member can speak with a member of the community without violating the OMA.

If the board member is speaking with other board members, the next question is how many board members are having the discussion together?

If the answer is less than a quorum (half of the board plus one, or a majority), then it’s likely no violation has occurred.

However, as Kennamer stated previously, any deliberation outside of a public meeting could open up board members to legal action, so tread carefully.

The next question is are board members engaging in deliberation?

The OMA defines deliberation as:

An exchange of information or ideas among a quorum of members of a subcommittee, committee, or full governmental body intended to arrive at or influence a decision as to how the any members of the subcommittee, committee, or full governmental body should vote on a specific matter that, at the time of the exchange, the participating members expect to come before the subcommittee, committee, or full body immediately following the discussion or at a later time. (emphasis added)

In an email, Dennis Bailey, General Counsel for the Alabama Press Association, stated it simply: “any ‘exchange of information or ideas…intended to arrive at or influence a decision’ as to how the members should vote on a specific matter is ‘deliberation.'”

If no deliberation is occurring, then it’s likely no violation has occurred.

And if deliberation is occurring with less than a quorum of the board, then it’s likely no violation has occurred.

However, even if no quorum exists, board members must make certain they are not engaging in serial meetings.

Serial meetings are when board members meet in small groups (less than a quorum) with the intent of circumventing the OMA.

The legal definition of serial meeting in Act 2015-340 is:

Bailey also clarified that all six conditions above must be true for the meetings to be considered serial meetings.

So, to recap, if board members are concerned about discussing a topic outside of a public meeting, the questions to ask include:

1. With whom is the board member having a discussion?
2. If the discussion is with other board members, how many board members are participating in the discussion?
3. Does the discussion meet the definition of deliberation?
4. Could the meetings be considered serial meetings?

If board members can simply remember to deliberate all public matters during public meetings, there is little to worry about.

Remember Kennamer’s advice: No deliberation outside of a meeting, no polling ever, no serial meetings ever.

Jayne Williams, General Counsel for the Alabama Association of School Boards (AASB), recommended that board members with questions about the OMA contact their board attorney or call the AASB for advice.

She said that board members are offered training to ensure they comply with OMA provisions. The School Board Governance Improvement Act of 2012 requires all board members to earn six hours of training each year, and two of those hours must be whole-board training, meaning the entire board must be present for the training. Board members can choose training on the OMA as part of that whole-board training.

When school board members find themselves in a conversation outside of a public meeting that appears to head in the direction of deliberation, Williams advises board members to just stop having the conversation. She acknowledged that board members could find themselves in that situation by accident, and that the intent to circumvent the OMA is an important piece of determining whether a violation has occurred.

School board members are counseled and trained to ensure all deliberations are public, recognizing there is a narrow exception for some issues that allow a board to hold an executive session.

Executive sessions are another topic for another day. Read  Appendix E of this document produced by the AASB to determine when an executive session may be appropriate.

Recognizing there are loopholes and ways to get around OMA provisions, Williams asserted that the AASB teaches board members not to even try to skirt the OMA provisions. “Just because you can doesn’t mean you should,” she said.