Legalities

February 23, 2017 - Volume 37 Issue 4

Legalities

By Kim Croyle 

 

Question: My board of education does not want to violate the Sunshine Law, but we want to preserve the dignity of our employees who have been disciplined.  Do we have to tell the public their names?  Can’t we just identify the employee by a number?

A:  Unfortunately, the Open Governmental Proceedings Act (sometimes call the Sunshine Law or the Open Meetings Act) prohibits a public body from voting by reference to a letter, number, or any other designation unless otherwise provided by law or unless the public has access to an agenda “sufficiently worded to enable the public to understand what is being deliberated, voted, or acted upon.” 

However, there is a silver lining offered by the Open Governmental Meetings Committee.  In response to a question posed by the Preston County Board of Education, the committee ruled that in the case of an employee disciplinary matter, the agenda provided to the public may exclude the person’s name, as in the agenda which Preston County posted for the public, unless the employee requests an open hearing. However, the name of the person being considered for discipline must be announced at the meeting before the Board votes on whether to impose discipline.

The best practice for avoiding claims of Open Meetings Act violations is to leave blanks on the personnel agenda only when in good faith the administration believes it may be ready to make a recommendation at the board meeting concerning a specific person, but has not yet finalized that recommendation when the agenda is posted.  In other words, the omission of a person’s name can be shown to be the result of normal processes, and not a device for avoiding public criticism or debate about a particular individual.

For example, even though the superintendent wants to fill a vacant professional position as soon as possible in the best interests of students, or even though the statutory deadline for filling a vacant position is about to expire, the interview process for a professional position, or a principal’s or faculty senate’s recommendation of a classroom teacher candidate, may still be in process when the agenda is posted at least three days prior to a regular meeting, or two days prior to a special meeting.  If the process can be completed so that a recommendation can be made to the school board at its upcoming meeting, the Superintendent will want to do so, rather than wait for weeks until the next scheduled meeting.

Sometimes the recommendation is finalized in time to appear in the agenda, but the candidate to be recommended for the vacancy withdraws just before the agenda is posted, or even after it is posted.

In such instances, the Ethics Commission’s Open Meetings Committee, which has been directed by the Legislature to advise public bodies about Sunshine Law issues, has advised that it is permissible to leave a blank where a person’s name would ordinarily appear, or to recommend a different person than the one named in the agenda, as long as (1) an actual name is made available to persons attending the meeting, before the board acts on the name, and (2) the posted agenda informs readers that this may be the case.

Editor's Note: Kim Croyle is a partner at the law firm of Bowles Rice.