We are often asked whether nonprofits must follow Arizona open meeting law (“OML”). Generally, nonprofits are not required to follow open meeting law; however, there are some exceptions – most notably charter schools. Charter schools are treated as public institutions for OML purposes because they are both funded with state tax dollars and are overseen by the state.
By requiring all ‘public bodies’ to open their meetings to “public scrutiny”, state governments ensure decisions and debate are conducted publicly and interested parties have the opportunity to voice concerns. Here we explore OML as it pertains to charter schools or other quasi-public nonprofits and attempt to provide a brief outline of what is required to stay compliant.
Consequences of OML Violations
If you are a public body, you have to comply with OML. In Arizona, the Attorney General created the Open Meeting Law Enforcement Team (OMLET) who is charged with investigating allegations of OML violations. Under Arizona law, each violation of OML is subject to:
- a $500 fine;
- attorney’s fees;
- removing the responsible party from office;
- fees for the AG’s investigation of the OML violation claim; and
- invalidation of any action taken in violation of OML
What are Public Bodies?
Public bodies are not only what you typically think of (state legislatures, committee’s, state agencies, instrumentalities of the government whose members are elected, etc.), but according to the Arizona Attorney General, charter school governing boards, and, if the charter has one, their corporate boards, are subsumed under the public body umbrella and are subject to Open Meeting Law.
The Gotcha Statutes: What is a Meeting?
If you are on the board of directors for a charter school, beware of what you say to fellow board members in person, on the phone, in emails, and in text messages. Under OML a meeting is, “the gathering, in person or through technological devices, of a quorum of members of a public body at which they discuss, propose or take legal action, including any deliberations by a quorum with respect to such action.” The peril is if one member of the board sends a text message or email to enough members sufficient to constitute quorum, and in that email the board member proposes some legal action. If this happens, you have just met without providing notice and have violated OML. This is why we suggest having board members who do not interact regularly outside of their roles as board members because anytime they are together and school business comes up, they run the risk of violating OML.
The AG’s office makes clear that statements of fact said, emailed, texted, or otherwise communicated to a quorum of board members is not subject to OML; only proposals of legal action. Take note, under the definition of “meeting”, proposal is the only one-directional act of communication. The others (discuss, deliberate, and take) all require a back-and-forth, making that quick email to fellow board members proposing the school, “buy all new computers” a costly mistake.
Heads Up! Giving Notice
Public bodies must post both a ‘recurring’ and a ‘permanent’ notice. Your website must have a permanent notice conspicuously notifying the public where you will post your recurring notices. Your recurring notices are notices you will post before each meeting and will either (a) have the agenda attached or (b) readily state where the public can obtain an agenda. The recurring notice must be posted at least 24 hours prior to the meeting and must be posted on both your website and somewhere physical (school newsletter, local paper, etc.). If the board plans to enter executive session, the agenda must reflect that and it must give the legal justification for doing so.
Discuss in Private, Decide in Public: Executive Sessions
Executive sessions allow public bodies to meet in the absence of public purview to discuss issues that affect the organization; however, only discussions are tolerated, no legal actions can be made while in executive session. There are seven categories that justify meeting in executive session
- Employee Matters: This includes hiring, firing, sanctions, etc. The discussion can only discuss the employee as a person; executive session is not justified when the discussion revolves around the ‘position’. Notice must be given to the employee who is the subject of the meeting at least 24 hours prior to the meeting. The employee may demand the meeting be held in public, in which case the board shall conduct the meeting in general session.
- Legal Advice: The attorney must be present and the conversation must be narrowly tailored to a discussion of legal issues. In Johnson v. Tempe Elementary, the board instructed their attorney to appeal a lawsuit. The Arizona Supreme Court found that instruction to be a legal act and because it was done during an executive session that was not properly noticed it was a violation of OML. During executive session the board was allowed to discuss the merits and strategy relating to the pending litigation, but they could not instruct the attorney to file the appeal. Because any action taken in violation of OML results in that action being void, the case was dismissed as the underlying decision to appeal was invalid. This resulted in the school having to payout over $80,000 plus attorney’s fees. Be careful what you talk about.
- Contract Negotiations: To prevent unfair negotiating imbalances, discussions regarding contracts an organization is considering can be done in the privacy of an executive session.
- Confidential Records: FERPA, among other laws, protect certain records of personnel and students. Discussions involving records deemed to be confidential by state or federal law must be done in executive session.
The final three are all justifications for the board entering executive session for the same reason as “Contract Negotiations”. If discussions involving these topics were held open to the public, it is believed that unfair gouging would result and the competitive enterprise of negotiating would be subverted.
- Negotiating Representative
- International/Interstate Negotiations
- Purchase, Sale or Lease of Real Property
Location! Location! Location!
State law is critical of when and where public bodies hold their meetings. Holding meetings at the school site is a good rule of thumb; but, you should make sure you consider the following:
- Hold meetings in locations sufficiently large to “accommodate the reasonably anticipated number of observers.”
- Hold your meetings during normal business hours – no 1 AM meetings.
- Make sure the facility complies with American with Disabilities Act requirements
- The facility should not be ‘remote’
- Facility must be publicly accessible – no meetings at the country club
- You cannot make observers sign-in, but you must require registration by any observer or presenter who is going to speak to the board.
Conducting the Meeting – Do it Once, Do it Right
The Arizona School Boards Association has an excellent manual on how to conduct an OML compliant meeting. Above all else, stick to the agenda and do not enter executive session unless it has been noticed 24 hours prior to the meeting. Arizona law allows for a board to enter executive session under emergency circumstances, but you are safe to assume that short of a natural disaster or the building catching fire while you are in the general meeting, your issue is likely not an emergency.
Take Notes – Minutes of Your Meeting
Arizona requires that either minutes or a recording be taken of all meetings, including executive sessions. Such shall be made available to the public within three business days of the meeting. If you are already posting your notices on your organization’s website, posting meeting minutes online is probably the simplest option. Minutes shall include the following:
- Date, time and place of the meeting
- Members present/absent
- General description of matters considered (the agenda items)
- Description of legal actions proposed, discussed or taken, including names of the members who proposed the action
- Names of person who made statements or present materials to the public body
Go Forth and Meet
Until we have proof-point schools educating every child, our nation’s potential is severely limited and compliance issues like OML should not be what holds your organization back from making that impact. Invalidation of significant decisions is bad enough, but having to pay an $80,000 judgment could bankrupt a school that is positively impacting communities. Open Meeting Law is very complex, but it is our hope this post gives you a frame of reference when assessing your school’s compliance. As always, seek out a qualified lawyer if you are unsure whether you are compliant or not. Our children need you to be successful, we are here to help make sure that happens.