Legal Trainings

Cooperation in following the requirements of the Open Meeting Law is very important for school board members. School districts depend upon members of their governing boards and other committees to maintain compliance with the law. The public’s trust in its school districts and the officials who govern them is at stake.

Board members should take the time to read the law and retain a copy for future reference.

Order a copy of ASBA’s Open Meeting Law Handbook.

To request an Open Meeting Law training, contact Chris Thomas, Chris Thomas, ASBA General Counsel, Associate Executive Director.

Open Meeting Law FAQs

The OML requires that all “instrumentalities” of the public body follow the OML. An “instrumentality” is a body or committee that derives its authority from the governing board, that is given some sort of official charge from the governing board. In the examples provided, a budget or curriculum committee that has been created by the governing board and given the responsibility of submitting recommendations to the board would be an instrumentality of the board and thus have to follow the OML. Contrast that with an administrative committee – say a committee of school principals appointed by the superintendent to give him or her recommendations on a given topic. That committee would not have to follow the OML since they are not an instrumentality of the board, instead providing recommendations to the superintendent who will in turn, upon his or her own discretion, provide those recommendations to the board.The question of site councils is not an easy one. I believe that site councils, because of the authority given to them by the board and by Arizona state statute, are an instrumentality of the board and should follow the OML. However, there are some problems with this interpretation. As Tom Pickrell my predecessor at ASBA has pointed out, because of the statutory makeup of the site council – including teachers, noncertified employees and the school principal – every faculty meeting could have a quorum of members of the site council in attendance, where they may be participating in school business discussions, thus triggering OML requirements. This was not an intended result of the law, and I do believe that such a restrictive interpretation would be taken by the Arizona Attorney General’s Open Meeting Law Enforcement Team if they ever had to look into a complaint covering this scenario.

As mentioned above, the OML is triggered whenever a quorum of a public body gets together in a forum in which school business is discussed or legal action taken or proposed to be taken on school business. (This includes any subject that foreseeably COULD be subject to future board action.) Whether the quorum requirement might be met through stringing together several conversations on the same subject is the problem of serial conversations and the OML. The scenario goes like this: Board member A talks to board member B about an upcoming vote and each pledge their support to the issue; there is then an agreement to approach board member C and get them on board as well, necessarily relaying the substance of board member A/B’s conversation with board member C. In this scenario, we now have three board members strung together talking and obtaining an agreement about the same matter which is subject to board authority. This type of activity likely violates the OML. (It is the strong interpretation of the Arizona Attorney General’s Office that this DOES violate the OML, though to date we have no record of any successful prosecutions.)The problem of serial conversations and the OML can come into clearer focus if the discussion takes place over e-mail. In typical e-mail messages going back and forth between two people, previous messages are logged into a current message. This allows for cataloging of discussion and if such an e-mail were to spread out over a quorum of members, it may also violate the OML. In other words, board member A and board member B discuss a school program that will be subject to board action over e-mail; board member C is forwarded the series of messages and asked to provide their input – you now have a serial conversations problem and worse, it is as plain as day since there is a record that has been created as evidence. I caution board members to be careful with e-mail – certainly ask questions and use it to get as much information as to make them prepared to conduct their duties – but watch the conversation among a quorum and, if it is something that really warrants discussion, ask to put it on a future agenda: that kind of discussion might benefit your community and certainly your fellow board members. Furthermore, consider disabling the control on your e-mail program that repeats previous messages in any new message when asking questions of a fellow board member – it might make your life a whole lot easier down the road.

Probably not. Remember that the personnel exception in the OML is to protect the privacy of the employee, an identified person not a “position.” If the district wants to have a discussion about reassignment of administrative resources without identification of those individuals – by name – that might be affected, I don’t believe that the discussion fits into the personnel exception of the OML and the discussion should take place in public. If an employee’s name will be discussed or if the position to be discussed is easily identifiable with a particular employee, then the discussion can take place in executive session using the personnel exception (but remember the notice required to the employee and that the employee has the right to waive the privacy protections and have the discussion in public.)

No, no, no! If you have not provided notice on the agenda sufficient to enable your citizenry to make a decision about whether they wish to attend that meeting or not, you have not complied with the OML. Just because proper notice was given on a PREVIOUS agenda, does not mean you have given proper notice speak to an item at a subsequent meeting. By the way, an agenda item that says “TBA,” or To Be Announced is so wrong it almost doesn’t deserve comment.On a related issue, I was asked a parliamentary procedure question that I get a lot. The question was if someone wants to bring an issue back for reconsideration that was voted on in a previous meeting, do they have to be on the prevailing side to make the motion. The answer is yes – from a parliamentary procedure perspective. But remember the OML supercedes anything parliamentary rules say – if you haven’t given proper notice on your agenda that this issue will be reconsidered, it doesn’t matter if you are on the prevailing side or not, you can’t bring the matter up.

Arizona’s Open Meeting Law (OML) requires that public bodies be specific as to what will be discussed, considered or decided at a meeting.

“Discussed, Considered or Decided”

As stated above, the OML says boards must be specific as to the agenda items covered at the meeting; moreover, the OML says that the agenda should state what the board will do with each item – discussed, considered or decided. This means that if a board agenda item is listed for “discussion” and there is no reference that the item might be subject to some action by the board, the board is precluded from taking action on that item. Because of this some boards have put all items as “subject to possible action.” This strategy certainly covers you from a legal standpoint, but I caution using it on controversial items that you have no intent of acting on that meeting. After all, you don’t want to panic your public if a decision on the item is months away or if the matter really isn’t a serious proposal at all, but just something that the board is exploring.

The Person Off-the-Street Test

[1] A.R.S. §38-431.02(H)[1] I don’t think that if the agenda states that the agenda item is subject to “action” that action must be taken, only that it is possible that action will be taken; in that regard, listing something for “possible action” is the same as saying it is an “action item” without noting that action may not be taken.

Many of the topics that are discussed in school district governing board meetings are complicated. Oftentimes, a board agenda item is up for decision only after the matter has been exhaustively discussed in many other meetings and because of which, the board and the administration have an intimate familiarity with the issue. It is because of this, and a general penchant for brevity, that board agendas often contain shorthand descriptions as to items to be considered — descriptions that while understandable to the board, administration and even the school staff, are not understandable to the average person without insider knowledge. I don’t think that school districts do this on purpose, it just happens. However, boards and administrators should know that an agenda item that is not sufficiently descriptive to inform the average, off-the-street person as to what is to be discussed, considered or decided is a violation of the OML. This is best conveyed through example.

Suppose that the board would like to talk about the alleged inequities between the girls athletic programs with the boys athletic programs. Would the following descriptions work in accurately describing that discussion:

  • Discussion of District Athletic Programs
  • Sporting Equipment Report on Boys and Girls Athletic Programs

The answer to each of the above is “no,” the agenda item is not descriptive enough for the discussion. On the first example, the agenda description is far too broad, not giving any detail to let the public know what is really the focus. On the second example, we have a problem of narrowness that may preclude broader discussion that the board would like to have – what if the issue includes apportionment of coaches or court/field time? A better description that covers the item would be the following:

  • Discussion of District Athletic Programs With Regard to Correct Share of Resources Between Boys and Girls Sports

Remember the off-the-street person in making your agenda. That is certainly the perspective that the Arizona Attorney General’s Office will take in determining whether you broke the OML. Some other things to avoid, in order to keep the person off-the-street perspective:

  • Don’t use “legaleze” – don’t simply refer to a statute by cite or even by name, if that name is not commonly understood.
  • No acronyms! Education-types love acronyms – NCLB, AYP, FAPE, CSF, ADM, 504…the list goes on and on. Remember your public is not familiar with these terms, even if you are!

Policing Your Agenda – A Must

Okay, assume you have a sufficiently descriptive agenda that captures exactly what you want to talk about. You’re done, right? NO! The most important thing under the OML with regard to agendas is sticking to what is written on the agenda! It is so easy for a board to get off track in its discussion when peripheral issues are brought up that relate to the matter at hand and then…pretty soon that peripheral issue becomes the topic of discussion. This is a violation of the OML. It may be one without intent, but a violation is a violation. It falls to each member of the board and the administration to constantly remind themselves that they must keep their discussions within the confines of the stated agenda description. I suggest to boards that they appoint – not formally but rather suggest informally – that one person be the designated “watch dog” to ensure that the board stays on its discussion point. (That doesn’t absolve the rest of the board or administration from paying attention of course!) It is one method to make sure an honest mistake doesn’t result in a significant violation and yes, money out of everyone’s pocket.

The Open Meeting Law can be difficult to understand and onerous at times to comply with – however, reminding yourself why it is there might make it easier for you. The public body governing board is there to do the public’s business in public. The public has a right to witness the discussion, deliberation and decision-making done in its name. Public confidence in our governing process is critical and complying with public accountability measures like the OML gives the public body the credibility they need to govern. Most importantly, it is that credibility that gives you the license to do the work you signed up for when you ran for the school board – to help give kids the best learning environment in which to fulfill their potential.

Arizona’s Open Meeting Law comprises only eight sections of Arizona statute. However, contained in that those sections are requirements that sometimes seem as complex as anything found in an Internal Revenue Service manual. In the 2000 legislative session, the Open Meeting Law was substantially revised through consensus legislation sponsored by all state and local public bodies, the media associations and the Arizona’s Attorney General’s Office – three contingents that, in the past, had often been at-odds on interpretations of the Open Meeting Law. The reason the legislation was endorsed by all of these parties was its singular purpose: to give greater clarity to all concerned about the requirements of the law.

Now three years have passed and new questions have arisen – it appears to be the nature of this beast that when a solution is found for one query, three more will pop up. In the past six months, I have conducted over a dozen training sessions on the Open Meeting Law, and have taken note of all of the questions that are out there. One topic seems to get the greatest amount of attention: the Superintendent or Board Member Report. To try to settle some of questions that are out there, this issue has been chosen at this edition of Education and the Law.

A.R.S. §38-431.02 (K) provides that “the chief administrator, presiding officer or a member of the public body may present a brief summary of current events (emphasis added) without listing in the agenda specific matters to be summarized, provided that:1. The summary is listed on the agenda

2. The public body does not propose, discuss, deliberate or take legal action at that meeting on any matter in the summary unless the specific matter is properly noticed for legal action.”

The effect of this inclusion is to allow a board member or superintendent to provide a quick update on issues in which the regular notice requirements have not been met. As the statute clearly states, there is to be absolutely NO discussion on the item.

First, I should state that if it is all possible to comply with the notice requirements on the agenda for an item that is believed will engender interest on the part of the board or public, the board should comply and provide that sufficient notice; then, discussion can take place without limitation. However, if this has not happened, the board must deal with the issue just as they would if a member of the public brought up an issue not on the agenda on the open call to the public: either direct staff to get more information OR place it on a future agenda for discussion or action. Under no circumstances should the board be having lengthy discussions about something that has been covered under a Superintendent’s Report (unless of course there is sufficient notice by listing the item with sufficient clarity separately on the agenda). This exception in the Open Meeting Law does not exist to cover substantive issues that will foster great interest and discussion among board members.Examples of issues that might be covered under one of these types of reports:

  1. the varsity basketball team just returned from an important tournament and the superintendent wishes to inform the board of the results;
  2. a board member attended the National School Boards Association Annual Conference and wanted to let the other board members know how it went (remember to watch the discussion!)
  3. an unanticipated discovery of important information such as new SAT-9 scores has been just received by the district (after the board agenda had gone out) and the Superintendent wants to inform the board members about how the district’s school did (in this instance the Superintendent should caution that this cannot be discussed at this time but it will be on the next agenda for discussion)

In a word, no. This is not to say that these types of reports – by department heads or school principals – need to stop; they simply must comply with the more specific notice requirements found in the OML. For instance, if a principal report is to be given about the status of a search for a music teacher, that item must be listed on the agenda under the principal’s report item. This is different than for superintendent or board member reports. In short, because a specific exception has been created for board member and superintendent reports to be given without complying with the strict notice requirements of the Open Meeting Law, that exception does not exist for other employees or individuals.If a principal or other individual has an important issue to discuss that has just come up – after the agenda has already gone out – it is suggested that that issue can be discussed by the superintendent or board member in their report, with notation to have it put on a future agenda for full discussion by the board.

The Arizona School Boards Association publishes a comprehensive guide to assist school governing boards and their various committees and councils to conduct business in accordance with the Arizona Open Meeting Law. It is available to members and the public for $10.Order a copy of ASBA’s Open Meeting Law Handbook here

Part One provides a brief guide for school board members and other citizen leaders in public education. Part Two provides the text of the Open Meeting Law as of September 2010. Part Three provides the text of Chapter 7 of the Agency Handbook as prepared by the Office of the Arizona Attorney General, the primary enforcer of Arizona’s Open Meeting Law. The Agency Handbook was substantially revised in May 2001 and the insertion here reflects those changes.

District superintendents can answer most questions regarding the Open Meeting Law. Board members who have additional questions regarding this law may contact Chris Thomas, Chris Thomas, ASBA General Counsel, Associate Executive Director.