Fall 2009

Systems Thinking

Legal Brief: Balancing Accountability and Transparency on the Board Level

Legal Brief: Balancing Accountability and Transparency on the Board Level

With the continued call for greater accountability and transparency sweeping across all levels of the education system, many school systems are struggling under the glare of public scrutiny. Boards continue to struggle with balancing the privacy needs of the board to conduct business with the right of the public/stakeholders to remain informed concerning their actions. 

With the continued call for greater accountability and transparency sweeping across all levels of the education system, many school systems are struggling under the glare of public scrutiny. Boards continue to struggle with balancing the privacy needs of the board to conduct business with the right of the public/stakeholders to remain informed concerning their actions. The call for greater accountability and the recent economic crisis have resulted in communities becoming more observant and demanding of their elected officials and boards. The ability of a school system to effectively meet AdvancED’s Standard 2: Governance and Leadership and Standard 6: Stakeholder Communication and Relationships are inextricably connected to a board’s ability to comply with the letter and spirit of the state and federal Sunshine Acts and Open Meetings Acts.

The right of the public to attend board meetings is a statutory creation not found in common law. These laws are usually called “Sunshine Acts” or “Open Meetings Acts” (hereafter “Acts”) and were adopted to promote accountability and transparency. The intent of these laws was to help prevent governing bodies from acting in secrecy and to reduce the chances of school systems being impacted by abuses of power, cronyism, nepotism and discrimination.

These Acts tend to cover any and all meetings attended by a quorum or more of the board members where they discuss, decide or review information. In order to prevent circumvention of these laws, they are usually given broad interpretation favorable to the public’s need for transparency. Still, many school systems struggle with the concept of what constitutes a meeting. Even informal gatherings among board members may be construed as a meeting and therefore come under the restrictions and requirements of the Acts. The courts will often look at the behavior of the board members, content discussion, setting, and future actions to determine if an informal meeting has been held to circumvent the spirit of the Acts. If a board holds an informal meeting to discuss and predetermine a vote, they are clearly not acting in line with the intent of the Acts. Even a public meeting may be in violation of the Acts if the place for the meeting does not allow reasonably sufficient access to the meeting by the general public. A board attempting to circumvent the spirit and intent of these laws would be in violation of AdvancED’s Accreditation Standards.

In order to properly conduct the business of the school system, there is a clear and compelling need for boards to be able to conduct certain business outside the purview of the general public. In recognition of this need, legislatures throughout the county have defined very specific matters that should be considered in executive session. The most common issues that are allowed to be discussed in executive session are individual personnel matters, matters involving litigation or likely to be litigated, land acquisitions, and student matters covered under the Family Educational Rights and Privacy Act or other state and federal statutes. Most courts require strict compliance with the restrictions and reporting requirements of conducting meetings in executive session. These areas of discussion are extremely limited, and often require public disclosure of the discussion topic to the fullest extent possible. Also, many states place upon boards additional requirements concerning the use of executive session including, but not limited to, the reporting of minutes or filing of an affidavit verifying the information discussed in the executive session. As part of the need for the transparent operation of government, almost all states require that votes must be taken in the publicly held portion of the meeting even if the subject matter was discussed in executive session.

However, the inappropriate use of executive session, or failure by a board to adhere to strict compliance with the requirements most states place upon government agencies or boards seeking to avail themselves of this valuable tool, results in a breakdown of the system. Boards across this country continue to struggle with the use of executive session. Although under most statutes, boards are not required to divulge much of the information discussed in executive session, many boards would be better served by being as transparent as possible with their stakeholders concerning their use of executive session and the matters discussed therein.

When boards stray from the parameters of the restrictions and requirements of the narrow exceptions to the Acts and abuse the privilege of executive session, communities become disenfranchised by their board and the relationship becomes strained. To avoid this consequence, boards should strictly comply with all reporting requirements for executive session and communicate with their stakeholders as much information as may be prudently disclosed in accordance with the various state and federal laws. Boards that have disenfranchised their stakeholders frequently use executive session as a way to circumvent the Acts. Executive session may provide boards with a sense of protection from public scrutiny, but its improper use will only widen the divide between the board and its stakeholders.

Boards that violate the Sunshine Acts or Open Meetings Act are most likely failing to meet AdvancED’s Standards 2 and 6. For all boards struggling to find a balance between the need for private consideration of matters and the public’s right to a transparent and accountable governing body, the following recommendations may help insure that the AdvancED Standards are being met: 1.) Obtain the advice and guidance of an attorney or other expert to insure compliance with the Sunshine or Open Meetings Acts; 2.) Demand strict compliance with the requirements of the Acts from Board members; 3.) Use executive session prudently and adhere to all pre and post reporting requirements; 4.) Remember the Acts will be given a liberal interpretation to insure the rights of the public, so make sure the public has sufficient access and opportunity to observe and comment on the actions of the Board; 5.) Unless allowed by statute, do not take votes in executive session; and 6.) Provide as much context as allowed when taking votes in public concerning matters discussed in executive session.

The public’s growing demand for transparency and accountability from our governing bodies will continue to pose a difficult balancing act. As Boards learn to cope with the demands of a transparent society, properly functioning boards will embrace transparency as a tool to meet the growing need for systemic accountability. A transparent board will garner the trust of a community. By establishing a transparent relationship with the community, the Board will have laid the foundation to meet in executive session without causing the community to react out of distrust and suspicion, but out of understanding and respect.

References

Russo, Charles J. (2009), Reutter’s The Law of Public Education, Seventh Edition, Thomson Reuter/ Foundation Press, NY, NY.

Dietz, L.H., Jacobs, A., Leming, T., Shampo, J., & Surette, E. (2009), American Jurisprudence, Administrative Law, III. Meetings and Records; Disclosure to Public, ThomsonReuters/West.

Bourdeau, J., Dvorske, J.J., Larsen, S., Link, R.J., Muskus, T., Oakes, K., Parker, L., Pellegrino, C., Surette, E.C., Williams, E., Zakolski, L., (2009), Corpus Juris Secundum, Public Administrative Law and Procedure, II. Administrative Agencies, Officers and Agents, D. Organization, Mode of Action, 2. Meetings; Sunshine Laws, ThomsonReuters/West.

Kenneth I. Bergman serves as Chief Legal Officer for AdvancED and handles legal matters ranging from intellectual property; statutory, regulatory and legislative analysis; contract review and negotiation; and drafting of corporate and legal documents.  He also provides advice and guidance on AdvancED corporate and accreditation issues, as well as training on a variety of Board and Governance issues.  He is a former partner in the law firm Dreger, Coyle, Bergman, Pieschel & Reemsnyder, LLC and is well-versed in corporate law, employment law, intellectual property, real property, and civil litigation.

 

Mr. Bergman earned his Juris Doctor and Bachelor of Arts degrees from Emory University.  He is a member of the State Bar of Georgia (School & College Law, Corporate Counsel Law, Business Law, Intellectual Property Law, Real Property Law and Litigation Sections), Association of Corporate Counsel, and the American Bar Association.

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