So you are a new school board member and you survived your first meeting. Congrats! Or you are a veteran board member and have been through more board meetings that you care to count. Thanks for your service! Here is the thing: there are so many expectations and laws governing school boards that new or veteran, it can be overwhelming to figure out how to do even things that should be simple.
KSB is going to try to help. Next Monday, February 11 at 6:00 p.m. C.S.T., we will host a 50-minute live webinar titled “Five Things Every New School Board Member Should Know Right Away.” You will learn (1) everything you need to know about parliamentary procedure (which legally isn’t much); (2) the basics of closed session; (3) what you need to know about school district insurance and individual legal liability for board members; (4) how to deal with patron complaints; and (5) your role and responsibilities as a board member.
The idea is to invite new (and experienced) board members to arrive at your February meeting an hour early (or maybe slightly change your meeting time if possible) so that they can participate in the webinar before their second board meeting. If your board cannot participate in the webinar live, we will record the session and make it available on our website. If you would like to register for this webinar, click here. The cost is $150 per board (regardless of the number of board members who actually participate, so the more the merrier!)
As a preview of how simple things can get complicated quickly, here is a pop quiz: How much notice must a board give before it can meet?
Answer? It depends. (you saw that coming, didn’t you?)
The Nebraska Open Meetings Act requires schools to give “reasonable advance publicized notice of the time and place of each meeting by a method designated by the body and recorded in its minutes.” But the law doesn’t specify a number of days or hours, so school boards have to rely on the Attorney General’s decisions and court opinions to figure out exactly how much notice is sufficient.
Twenty-Four Hours is NOT Sufficient Notice. On February 16, 2018, the Nebraska Attorney General’s Office (AG) issued a disposition letter in response to a complaint that the Omaha School Employees’ Retirement System Board of Trustees provided insufficient meeting notices. The board indicated that it posted notice of its upcoming meeting at the main door entrance of the Teacher’s Administrative Center (TAC) and on the receptionist desk in the Retirement Office at the TAC at least 24 hours in advance. A copy of the meeting schedule for the entire year was posted in the Retirement Office of the TAC and on the OSERS webpage.
The AG determined that the posting of the meeting schedule for the entire year did not provide sufficient advance publicized notice, citing its previous opinion that concluded that “advance publicized notice” means a separate, specific advance notice must be given for each meeting. See Att'y Gen. Op. No. 137 (Aug. 8, 1972). The AG determined that posting at the TAC 24 hours in advance of the meeting was not reasonable. This determination appears to have been made in part because most OSERS members are not regularly present at the TAC. To ensure future compliance with the Act, the AG recommended that the Board post a complete meeting notice on its website prior to each meeting.
In another matter, the Midland Area Agency on Aging caused a notice of its meeting at 9:30 a.m. on January 4th to be published in the Hastings Tribune on January 3rd. In a disposition letter dated April 12, 2018 issued in response to a complaint about the meeting notice, the AG indicated that the MAAA should publish its notice “more in advance of its meetings than the day before, particularly given that the Hastings Tribune is a daily publication.”
What Have the Courts Said? In Pokorny v. Schuyler, 202 Neb. 334 (1979), the Nebraska Supreme Court held that a meeting notice posted in three public places one week before a meeting was sufficient, but a 10:30 a.m. special meeting notice posted in three public places at 10 p.m. the night before a meeting “could hardly be considered to be reasonable advance publicized notice.”
In Banks v. Board of Education of Chase County, 202 Neb. 717, 277 N.W.2d 76 (1979), the Nebraska Supreme Court held that a meeting notice posted at the high school, the courthouse, and the post office two days before the meeting was sufficient. In an unpublished opinion in Allen v. Greeley County Sch. Dist. No. 501, 1994 Neb. App. LEXIS 186 (Neb. Ct. App. 1994), the court found that placing notice on March 4th in seven public places was sufficient notice for a meeting held on March 6th at 8 a.m.
In City of Elkhorn v. City of Omaha, 272 Neb. 867, 725 N.W.2d 792 (2007), the Omaha mayor called a special meeting approximately 12 hours before a 10 p.m. special meeting. Shortly thereafter, notice was posted on the city office’s bulletin boards and on its website, and an agenda of the meeting was faxed to 19 area media outlets. Additionally, the Omaha World-Herald published an article about the meeting in its afternoon edition of the paper. The court concluded that under the circumstances, Omaha's notification efforts were reasonable and sufficient:
In Pokorny, we did not state that a 12-hour notice is always insufficient under § 84-1411(1). Instead, we determined that the short time between the notice and the meeting was insufficient because the notice was unlikely to reach the public before the scheduled meeting. [In addition to the factors listed above], [f]our television broadcasters were at the meeting, and one station broadcast the meeting live. Therefore, unlike the notice in Pokorny, the record shows that Omaha's notice reached a substantial part of the public before the scheduled meeting.
City of Elkhorn, 272 Neb. at 879.
Conclusion. If you’re in a pinch and want to schedule a special meeting quickly, how much notice must you give? Based on Banks, there should be little question that 48 hours’ notice is sufficient. However, scheduling a meeting on less that 48 hours’ notice would be done at your own risk. The public meeting laws are to be broadly interpreted and liberally construed to obtain the objective of openness in favor of the public. The AG’s Office has made clear at least twice this past year that 24 hours’ notice is insufficient. It is unclear if their findings would have been different if the public bodies had posted public notices in more places, notified (more) media outlets, posted on social media, posted on their webpages, or had media outlets attend and/or broadcast their meetings. Given the AG’s recent guidance and the unique circumstances present in City of Elkhorn, relying on the “Omaha exception” and providing 24 hours’ notice or less for a special meeting seems especially perilous. You should check your district’s or ESU’s policy to be sure there are no provisions or references to things like “at least 24-hours’ notice” when calling regular or special meetings that may run afoul of these decisions.
If you have questions about your district’s approach as you work through the issues, you should contact a KSB attorney or your school attorney.