Board Procedures – Open vs. Closed Sessions Open Meetings Act 1976

1. Board Procedures – Open vs. Closed SessionsOpen Meetings Act 1976 By Deb Johnston 740 Legal and Ethical Issues of School Governance

2. Open Meetings Act 267 of 1976 An act to require certain meetings of certain public bodies to be open to the public; to require notice and the keeping of minutes of meeting; to provide for enforcement; to provide for invalidation of governmental decisions under certain circumstances; to provide penalties; and to repeal certain acts and parts of acts.

3. Open Meetings Act 267 of 1976 Purpose: In the 1970’s there was a renewed commitment to making government institutions “By and For the People”, which included greater access to decision-making bodies and freedom of access to information. Basic Intent: To strengthen the right of all Michigan citizens to know what goes on in government by requiring public bodies to conduct nearly all business at open meetings.

4. Open Meetings Act 267 of 1976 Result: • Passage of the Open Meeting Act and the Freedom of Information Act. • These acts ensure that government will not be conducted in the proverbial “smoke-filled back rooms.” • Deliberation of public policy forum provides a check and balance in our system of government

5. Open Meetings Act 267 of 1976 Concept: • A public body must do all its business, (except for certain exceptions) in public meetings at which a quorum is present. • Meetings must be held in public places. • Advance notice with time and location must be provided to the public. • Minutes must be taken and made available shortly after. Closed Sessions: • Allowed for limited purposes and must be requested by the party involved.

6. Open Meetings Act 267 of 1976 15.263 - Meetings Sec. 3. (1) All meetings of a public body shall be open to the public and shall be held in a place available to the general public. All persons shall be permitted to attend any meeting except as otherwise provided in this act. The right of a person to attend a meeting of a public body includes the right to tap-record, to videotape, to broadcast live on radio, and to telecast live on television the proceedings of a public body at a public meeting. The exercise of this right shall not be dependent upon the prior approval, but reasonable rules and regulations in order to minimize the possibility of disruption can be established.

7. Open Meetings Act 267 of 1976 Sec. 3. (2) All decisions shall be made at a meeting open to the public. (3) All deliberations of a public body constituting a quorum shall take place at a meeting open to the public. (exceptions in sec. 7 and 8 – closed sessions) (4) A person shall not be required to register or other wise provide his or her name or other information as a condition to attending. (5) A person shall be permitted to address a meeting.

8. Open Meetings Act 267 of 1976 • Sec. 3. (6) A person shall not be excluded from a meeting • otherwise open to the public except for a breach of • peace actually committed at the meeting (7) There are some public bodies that this act does not apply (which are discussed in detail in the section)

9. Open Meetings Act 267 of 1976 15.264 – Notices of meetings Sec. 4 (a) A public notice shall always contain the name of the public body to which the notice applies, its telephone number if one exists, and its address (b) Be posted at its principal office and any other locations considered appropriate by the public body (cable, etc.) (c) and (d) does not pertain to schools

10. Open Meetings Act 267 of 1976 15.265 – Notices of meetings – changes Sec. 5 (1) A meeting shall not be held unless public notice is given. (2) For a regular meeting, posting must take place within 10 days after the first meeting in each calendar or fiscal year a public notice stating the dates, times, and places of its regular meetings. (3) Changes in the schedule shall be posted within 3 days after the meeting at which the change is made, notice must state new dates, times, and places of its regular meetings.

11. Open Meetings Act 267 of 1976 15.265 – Notices of meetings – changes Sec. 5 (4) A rescheduled regular or a special meeting notice must be posted at least 18 hours before the meeting. (5) A meeting of a public body which is recessed for more that 36 hours shall be reconvened only after public notice. with the exception of an emergency session in the event of a severe and imminent threat to the health, safety, or welfare of the public when 2/3 of the members serving on the body decide that delay would be detrimental to efforts to lessen or respond to the threat.

12. Open Meetings Act 267 of 1976 15.265 – Notices of meetings – changes Sec. 5 (6) A meeting may only take place in a residential dwelling if a nonresidential building within the boundary of the school system is not available without cost to the public. A notice of the meeting shall be published as a display advertisement in a newspaper of general circulation in the city or township in which the meeting is to be held not less than 2 days before the meeting. The notice must include the date, time and place, and at the bottom of the as, set off in a conspicuous manner, shall include: “This meeting is open to all member of the public under Michigan’s open meetings act”.

13. Open Meetings Act 267 of 1976 15.266 – Providing copies Sec. 6 (1)Upon the written request of an individual, organization, firm, or corporation, and upon the requesting party’s payment of fee, (not more than the reasonable estimated cost for printing and postage) copy shall be sent to the requesting party by first class mail (Freedom of Information Act). (2) Upon written request, at the same time a public notice of a meeting is posted, a copy of the public notice of that meeting shall be sent to any newspaper published in the sate and to any radio and television station located in the sate, free of charge.

14. Open Meetings Act 267 of 1976 15.267 – Closed Sessions Sec. 7 (1) A 2/3 vote of members is required to call a closed session except under sections 8, a, b, c, g, I, and j. The roll call vote and the purpose or purposes for a closed session shall be entered into the minutes. (2) A separate set of minutes shall be taken at the closed session. These minutes are not available to the public and shall only be disclosed if required by a civil action. These minutes may be destroyed 1 year and 1 day after approval of the minutes of the regular meeting at which the closed session was approved.

15. Open Meetings Act 267 of 1976 15.268 – Closed Sessions – Permissible Purposes (When?) Sec. 8 (1) Closed sessions may take place only: (a) To consider the dismissal,suspension, or disciplining of, or to hear complaints or charges brought against, or to consider a periodic personnel evaluation of, a public officer, employee, staff member or individual agent, IF…. It is requested. (b) To consider the dismissal, suspension, or disciplining of a student, and the student or student’s parent or guardian requests it.

16. Open Meetings Act 267 of 1976 15.268 – Closed Sessions – Permissible Purposes (When?) Sec. 8 (1) Closed sessions may take place only for: (c) For strategy and negotiation sessions necessary in reaching a collective bargaining agreement, if either party requests a closed hearing. (d) To purchase or lease of real property. (e) To consult with its attorney regarding trial or settlement strategy, only if an open meeting would have a detrimental financial effect on the litigating or settlement position of the public body.

17. Open Meetings Act 267 of 1976 15.268 – Closed Sessions – Permissible Purposes (When?) Sec. 8 (1) Closed sessions may take place only for: (f) To review and consider the contents of an application for employment or appointment to a public office if the candidate requests that the application remain confidential. (g) NA - State Legislature. (h) To consider material exempt from discussion or disclosure by state or federal statute. (i) For a compliance conference of the public health code.

18. Open Meetings Act 267 of 1976 15.269 – Minutes Sec. 9 (1) Minutes must be taken of each meeting showing: • The date, time and place of meeting • Members present, members absent • Any decisions made at a meeting and all roll call votes • An explanation for the purpose(s)for which a closed session is held. (2) Minutes are public records open to public inspection, and a public body shall make the minutes available at the address designated on posted public notices and shall make copies available at the reasonable estimated cost for printing and copying.

19. Open Meetings Act 267 of 1976 15.269 – Minutes Sec. 9 (3) Proposed minutes shall be made available to the public within 8 business days after the meeting to which the minutes refer. Approved minutes will be made available with 5 business days after the meeting at which the minutes are approved. (4) Personally identifiable information will not be included in the minutes, that if released would prevent the public body from complying with the Family educational Rights and Privacy Act of 1974 (FERPA).

20. Open Meetings Act 267 of 1976 15.270 Decisions; Civil action to invalidate; Disputed Decisions Sec. 10 (1) Decisions shall be presumed to be in compliance with this Act. The attorney general, the prosecuting attorney, or any other person my commence a civil action in the circuit court to challenge the validity of a decision that may be in violation of this act. (2) A decision made may be invalidated if it has not complied with all requirements, or if failure to give notice in accordance with section 5 has interfered with substantial compliance and the court finds that the noncompliance or failure has impaired the rights of the public under the law. (3) The circuit court shall not have jurisdiction to invalidate a decision for a violation of this act unless an action is commenced within the following specified period of time:

21. Open Meetings Act 267 of 1976 15.270 Decisions; Civil action to invalidate; Disputed Decisions Sec. 10 (a) Within 60 days after the approved minutes are made available to the public (b) If the decision involves the approval of contracts, the receipt or acceptance of bids, making of assessments, the procedures pertaining to the issuance of bonds or other evidences of indebtedness, or the submission of a borrowing proposal to the electors, within 30 days after the approved minutes are made available to the public. (4) Venue for an action shall be any county in which a local public body serves…… (5) In any case where an action has been initiated to invalidate a decision on the ground that it was not taken in conformity with the requirements of this act, the public body may, without being deemed to make any admission contrary to its interest, reenact the disputed decision in conformity. A decision reenacted shall be effective from the date of reenactment and shall not be declared invalid by reason of a deficiency in the procedure used for its initial enactment.

22. Addison School Board Policy Follows the Closed Sessions requirements set forth in the Open Meetings Act. The Board may, by means of a roll call vote, meet in a closed session for: • To consider the dismissal, suspension, or disciplining of, or to hear complaints or charges brought against, or to consider a periodic personnel evaluation of, a public officer, staff member, or individual agent, if the named person requests a closed hearing (a majority vote is required). • To consider the dismissal suspension, or disciplining of a student only if the student or student’s parents request a closed hearing (a majority vote is required.

23. Addison School Board Policy Closed Meeting - Keeping Minutes • The Board shall designate a person to keep separate minutes of each closed meeting of the Board. These minutes shall be retained by the Secretary of the Board, but shall not be available to the public and shall only be disclosed if required by a civil action filed under M.C. L. A. 15.270 et. Seq. These minutes may be destroyed one (1) year and one (1) day after approval of the minutes of the regular meeting at which the closed session was approved.

24. Addison School Board Policy Student Disciplinary Hearings Closed Session - Requested • If a parent or student requests a closed hearing, a vote must be taken. • The purpose of the closed session should be announced: “To consider a student disciplinary matter, pursuant to the request of the parent/guardian” (NOTE: Do not need to use the name since that could identify the student). FERPA rights are protected. • A majority vote is required to go into a closed session. • Those invited should include the student, parent(s) and/or representative(s) and school administrator(s)bringing charges. Others may be admitted at Board discretion, if needed for the proceeding or at the request of student/parents. • Witnesses should be admitted when needed to testify. Then they are asked to leave.

25. Addison School Board Policy Student Disciplinary Hearings Closed Session • The Administration should present a summary of the requested discipline and an overview of the incident(s) supporting the discipline. • The Administration shall call and question witnesses as it determines appropriate. The Administrator my testify as a witness to the results of his/her investigation of the incident and the student’s past record. • The student, parent, or representative (only one (1) should be allowed to ask the witness(es) questions related to issues reasonably related to the discipline. Additional questioning by the Administration, the student/representative and/or the Board my be allowed at the Board’s discretion.

26. Addison School Board Policy Student Disciplinary Hearings Closed Session • The student, parent, or representative may then present witnesses or statements to the Board. The Administration and/or the Board may ask questions of these individuals. The Board may allow additional questioning at its discretion. • When the presentation of evidence is concluded, the Board will deliberate. It may exclude both the Administration and the student and representatives, or allow both sides to remain. • If the Board desires clarification of any testimony during its deliberation, it shall assure that both the Administration and the student are present to hear the information. • The Board shall not take any action in the closed session. It must return to open session and requires a majority vote.

27. Addison School Board Policy Student Disciplinary Hearings Open Hearing • If the student parent or authorized representative does not request a closed hearing, the Board must still assure that the Family Educational Right and Privacy Act (FERPA) is not violated. • The parents (or student, if 18) should sign an authorization to release student record information to allow discussion of the student’s information in the public forum (form 8330 F4). If the parents refuse to sign, or information relating to other students must be presented at the hearing, it should be done anonymously by referring to students by Code Numbers or Fictitious names. • If this is not possible, then the Board my go into closed session to receive student identifiable information pursuant to a 2/3’s roll call vote for the announced purpose of “Considering material exempt form discussion or disclosure by State or Federal law.” • In all other respects, the hearing shall proceed as outlined under the Closed Hearing requirements. .

28. Addison School Board Policy Student Disciplinary Hearings Open Hearing • The Board must deliberate and act on the discipline in open session. The student, parents, administration and public will be allowed to be present. Students/parents who have not authorized disclosure to the public will not be mentioned by name during deliberations. • Any action must be by a vote of the Board in open session. If the student/parents have signed an authorization for public disclosure, then the student’s name may be used in the motion and recorded in the Board minutes.

29. Addison School Board Policy Other Reasons of Closed Sessions • For strategy and negotiation sessions connected with the negotiation of a collectively-bargained agreement if either negotiation party requests a closed hearing (majority vote required) • To consider the purchase or lease of real property… • To consult with its attorney regarding trial or settlement strategy in connection with specific pending litigation – if an open meeting would have a detrimental financial effect on the litigating or settlement position of the district (2/3’s vote required) • To consider material such as written opinion of counsel which are exempt from discussion by State or Federal statute (2/3’s vote) • To review the specific contents of an application for employment or appointment if the candidate requests (2/3’s vote). All interviews or appointment of superintendent shall be held in an open meeting

30. Addison School Board Policy Addison also includes some additional information in their policies. • For confidentiality – no member of the Board shall disclose the content of discussions that take place. The only exceptions will be discussions with the District’s legal counsel or as directed by an order of a court with proper jurisdiction • Board member shall not record or communicate by any means, outside such meetings. Madison’s Schools Board Policy on Closed Sessions, restates the law as previously discussed.

31. Open Meetings Act 267 of 1976 Court Cases • Quatrine v Mackinaw City Public Schools, 204 Mich App 342; 514 NW2d 254 (1994). Public schools were not required to release records under FOIA where written parental consent for release of records was not provided. • Traverse City Record Eagle v Traverse City Area Public Schools, 184 Mich App 609; 459 NW2d 28 (1990) A tentative bargaining agreement between a school district and the union which represents its employees was held to be exempt from disclosure pursuant to § 13(1)(n) of the FOIA which exempts communication and notes within a public body or between public bodies which are advisory, nonfactual and preliminary to a final decision. The public interest in encouraging frank communications between the employer and its employees, which leads to effective negotiations, in this case outweighs the public interest in disclosure.

32. Open Meetings Act 267 of 1976 Court Cases • Palladium Publishing Co v River Valley School District, 115 Mich App 490; 321 NW2d 705 (1982) The name of student suspended by the action of a board of education will appear in the meeting minutes and is not information exempt from disclosure under the FOIA. • Moore vs. Fennville Public Schools Board of Education, 223 Mich App 196 (1997) A public body may arrive at a conclusion as to negotiating strategy at a closed meeting. That conclusion is not a “decision” that the Open Meetings Act requires to be mad at an open meeting.

33. Board Procedures – Open vs. Closed SessionsOpen Meetings Act 1976 References: Richardson, E. (July 1999). The open meetings act. Retrieved July 8, 2010 from www.michigan.gov/med/o,1607,7-140-54504_18689-54471 Legislative Council, State of Michigan. (2010). Open meetings act: act 267 of 1976. Retrieved July 8, 2010, from http://www.legislature.mi.gov/documents/mcl/pdf/mcl-act-267-of-1976.pdf