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Tuesday, January 2, 2024

PAC Finds Public Body in Violation of OMA for Improper Closed Session

Just when we thought we had reported on all of the 2023 PAC binding opinions, the PAC issued one more opinion in late December.

After a parent filed an objection to a book’s inclusion in a school district’s curriculum, the school superintendent determined that using the book did not violate board policy. The parent subsequently appealed the superintendent’s decision to the full school board, which discussed the matter in closed session at its May 22, 2023 meeting, and then voted in open session to add a second book as an alternative option to the controversial book in question. At a later meeting, the board decided to pull the book from its curriculum altogether after returning from closed session at its August 7, 2023 meeting. In response to a request for review challenging the board’s basis for entering closed session to discuss the book at its August 7, 2023 meeting, the PAC concluded that the board violated the OMA by holding an improper closed session discussion regarding removing the book from its curriculum. PAC Op. 23-016.

Specifically, the PAC rejected the board’s arguments that it properly entered closed session at its August 7, 2023 meeting to discuss issues involving the book pursuant to OMA exceptions 2(c)(1), 2(c)(4), 2(c)(10), and 2(c)(11).

The PAC rejected the board’s argument that it properly cited OMA exception 2(c)(1) to discuss a grievance against specific employees in connection with teaching the book, finding that the board’s argument did not align with the substance of its closed session discussion, which centered on the merits of having the book as part of its curriculum. Although the board briefly alluded to the parent who filed the grievance, the parent’s child, and certain school employees, the board never deliberated about performance issues or relative merits of specific employees. Nor did the board demonstrate that its discussion about the appropriateness of the book was inextricably intertwined with its overarching discussion about employment-related topics about specific employees.

The PAC also determined that the board’s discussion during its closed session meeting fell outside the scope of OMA exception 2(c)(4), because the board’s discussion focused on the appropriateness of the book as part of its curriculum and did not constitute evidence or testimony in an open hearing or a closed hearing specifically authorized by law. Indeed, the PAC noted that the board was not specifically authorized by law to act as a quasi-adjudicatory body with respect to deciding whether to remove a book from its curriculum.

The PAC also determined that the board’s discussion during closed session fell outside the scope of OMA exception 2(c)(10), which narrowly pertains to individual student matters. While the board momentarily alluded to an individual student, its discussion generally focused on the appropriateness of the book and broader curriculum issues impacting many students.

Finally, the board acknowledged it did not actually utilize the OMA’s "pending or imminent" litigation exception in section 2(c)(11) during its closed session meeting.

Post Authored by Eugene Bolotnikov, Ancel Glink


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