“So oh oh, so oh oh,” sings Bobby. O wait, you are here for a blog post and not a visual reminder of what Bobby sings every day on his commute? Just as the infamous Mariah Carey belts out these lines in her classic hit, board members might be feeling this pressure from public scrutiny lately. Part of the scrutiny stems from state “Sunshine laws” (like the Nebraska Open Meetings Act and the South Dakota open meetings laws) which inherently (and with good public policy reasoning) safeguard the public’s access to meetings and right to information. Here are a few common questions and areas of concern which lead to potential open meetings violations.
1. Question: I am the superintendent. Can I send an e-mail to all the board members simultaneously without a violation?
Answer: This makes us nervous! Under the Nebraska Open Meetings Act, a meeting is defined as “all regular, special, or called meetings, formal or informal, of any public body for the purposes of briefing, discussion of public business, formation of tentative policy, or the taking of any action of the public body.” Neb. Rev. Stat. § 84-1409. Similarly, South Dakota law defines an official meeting of a public body to be “any meeting of a quorum of a public body at which official business of the public body is discussed or decided, or public policy is formulated, whether in person or by means of teleconference.” SDCL 1-25-1. If a board member hits “reply all” to an e-mail message, a violation of the open meetings law almost certainly occurred. If a superintendent would like to send an email to all of the board members, the better practice is for the superintendent to send an email to himself or herself with the board members blind copied (BCC’d) on the email so as to avoid the dreaded “Reply All.”
2. Question: I am the board president. Are there ramifications if I text another board member during a board meeting?
Answer: Yes. This is a violation of open meetings laws. Board members cannot text each other during the school board meeting about school business. The same would be true about any other form of communication such as social media.
3. Question: I am the board president. What limits, if any, can I place on public comment?
Answer: In Nebraska, the public is guaranteed the right to attend and speak at meetings of a public body. Neb. Rev. Stat. § 84-1412. The right of the public to provide input may be limited or prohibited at certain meetings so long as it is not forbidden at all meetings, and the public body may require a member of the public to identify themselves as a condition to addressing the body. The Nebraska Attorney General has provided guidance that allowing public comment at least quarterly is sufficient to comply with the Act.
In South Dakota, the public body is required to reserve time for public comment at regularly scheduled meetings. SDCL § 1-25-1. The public body may exercise discretion in limiting public comment but may not eliminate any public comment. Senate Bill 162 which was signed by the Governor in February 2023 will change the law to require public comment at every official meeting with several exceptions.
Reasonable and necessary boundaries can be placed on public comment in both Nebraska and South Dakota. For example, uniform time limits can be placed on speakers such as two or three minutes per speaker. Additionally, a board president has the discretion to stop speech or other conduct that the board president reasonably perceives to be or imminently threatens to cause a disruption of the orderly and fair progress of the meeting. Similarly, swearing or profanity can be prohibited.
4. Question: I am a board president. Can I limit public comment criticizing school officials?
Answer: In an effort to protect the reputation, privacy, and due process rights of school officials and employees, some school boards have adopted policies or practices of prohibiting citizens from publicly criticizing school officials or employees in open school board meetings. These policies are typically deemed unlawful by the courts. Therefore, citizens who speak critically of school employees must be allowed to do so unless their comments, coupled with other behavior, clearly threaten to disrupt the meeting. To put it simply, each time the board provides the public the opportunity for public comment, it must permit the public to provide comment on any subject.
If you have any questions about open meetings laws, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.