By: Brittany Flaherty Theis

Over the past summer, the Legislature passed, and the Governor signed, an amendment to the notice provision of the Open Meetings Act that will affect all public bodies, including school districts. This amendment will require a certain level of specificity in your posted meeting agendas. The new requirement takes effect on January 1, 2013.

There are two additions of which you should be aware. First, all agenda items must now “set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting.” Second, the public body must ensure that at least one copy of the notice and agenda for the meeting “is continuously available for public review during the entire 48-hour period preceding the meeting.” (Posting the notice and agenda to the public body’s website for that time period meets this requirement.)

The Legislature did not provide any guidance as to what will qualify as “the general subject matter” of an action item. Until the Attorney General’s Public Access Counselor can issue opinions on the new requirement, Whitt Law offers the following suggestions.

This only applies to items up for final action. If there is no chance that the item will be acted upon, the specificity requirement does not apply. For example, directing the administration in closed session to make an offer to purchase real estate at a certain price, subject to the Board’s later approval of the contract in an open meeting, is not a final action. However, if it is possible that the board of education will want to act, you should treat it like any other item for final action.

More detail is better. Obviously, an agenda item like “Contract for lease of new copiers” is more descriptive than “Copier Lease” or just “Contract.” The sponsor of the bill has stated that the amendment was intended to stop the use of so-called “shell” agendas or one-word descriptions.

Lengthy descriptions are not necessary. The amendment requires a description of the “general subject matter” of an item for final action. An earlier version of the bill would have required agendas to be “sufficiently descriptive to give the public reasonable notice.” Another version of the bill would have called for the listing of the full title of a motion, resolution, or ordinance. These versions were not approved, and instead the Legislature substituted the “general subject matter” requirement. Whitt Law believes this shows intent to require that agendas be descriptive, but not cumbersome.

Action items after closed session are going to be tricky. Currently, public bodies use very broad phrases like “Action from closed session” in order to take final action on something but still discuss it with some level of confidentiality in closed session. However, a catch-all action item like that is probably not going to be acceptable to the Public Access Counselor. Until the PAC issues some guidance on this issue, Whitt Law makes the following recommendations.

First, if an agenda lists three grounds for entering closed session (i.e. collective bargaining, the purchase of real estate, and pending litigation), but the public body only intends to act on the real estate purchase, then that should be the only subject described in the “action from closed session” line item. Second, the description given should be as informative as possible without destroying the confidentiality needed. For example, “Acceptance of counter-offer for purchase of real estate as discussed in closed session” would be better than “Acceptance of counter-offer from Acme Inc. for purchase of real estate at 123 Main Street for $500,000 as discussed in closed session.” This gives the board the option of directing the administration to continue negotiations without compromising its position. It also avoids telegraphing the probable action to the seller in advance of the board meeting.
Ultimately, the best solution will depend on the specific facts of the situation.

The suggestions and examples here are just samples, and may not be appropriate advice for a particular situation or after other guidance has been issued in the future.

If you have questions about how to describe a particular agenda item or the Open Meetings Act generally, please contact Whitt Law Attorney Brian Bare.

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