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Monday, October 11, 2021

PAC Finds School Board in Violation of OMA for Conducting Public Comment in Closed Session

The PAC has issued a 9th binding opinion for 2021 (forwarded by a reader since the Attorney General's website is still not fully operational). In PAC Op. 21-009, the PAC found a school board in violation of the Open Meetings Acct because it required members of the public to provide comments in closed session, and did not provide an opportunity for public comment in open session.

A school board conducted a meeting where the only agenda topic was a closed session to consider a personnel matter. A significant number of members of the public attended the meeting and 10 people signed up to speak at the meeting. The board went into closed session shortly after opening the meeting, and the members of the public who signed up to speak were called into closed session one-by-one to provide their comments to the school board. 

Subsequently, a reporter filed a complaint with the State Ethics Commission claiming the board improperly restricted public comment in violation of the Open Meetings Act. The Commission forwarded the complaint to the Public Access Counselor since it enforces the OMA. The school board filed a response to the complaint, stating that the reason the school board conducted "public comment" in closed session was because the members of the public were commenting on the performance of a school employee which is a proper topic of closed session.

The PAC first noted that the school board had no rule in place requiring members of the public to provide comments in closed session rather than an open meeting (and the PAC questioned whether such a policy would be lawful in any event). Next, the PAC stated that the OMA exemptions authorize, but do not require, public bodies to discuss certain matters in closed session. The PAC rejected the school board's argument that the employees being discussed in closed session had rights to have matters relating to their performance discussed privately rather than publicly. The PAC concluded that the board violated the OMA by failing to allow the public to address the board in open session, and ordered the school board to provide an opportunity for public comment in open session at all future meetings.


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