Published by MARE, October 2010
Recently, there has been a renewed interest in the Missouri Sunshine Law.[1] In fact, four bills were introduced in the Missouri Legislature this past General Session which concerned the Act. Two of those four bills sought to add harsher penalties and more stringent obligations on public governmental bodies trying to comply with the Act. The renewed interest in the Sunshine Law seems to have been generated by a perceived failure of public governmental bodies (e.g., boards of education) to follow the guidelines of the current Act. Specifically, House Bills 1445 and 1299 were advanced to strengthen and/or add “teeth” to the Sunshine Law. This article will discuss these two proposed bills and their potential effects on school districts should they resurface, and pass, during the next legislative session.
H.B. 1445
House Bill 1445 garnered the greatest amount of publicity of the four bills which were proposed in the legislature regarding the Sunshine Law. This bill sought to change various aspects of the Act. Of all the changes this bill sought to introduce, three provisions are noteworthy and should be discussed in some detail. First, this bill sought to change the way boards of education draft their closed meeting minutes. Specifically, this provision stated boards of education would be required to provide a summary of their closed meeting sessions. Second, this bill sought to increase the monetary penalty for violating the Act. The bill sought to increase the current penalty for a purposeful violation from a $5,000.00 civil penalty to an $8,000.00 civil penalty. Finally, this bill also sought to add a public comment period five business days prior to voting on issues involving tax increases, eminent domain matters and tax increment financing matters.
The first provision of the bill to be discussed, and the most noteworthy, is the reason why this bill garnered so much attention. As stated above, this bill sought to require boards of education to draft a summary of discussions from their closed meeting sessions. Currently, there is nothing in the Sunshine Law which requires a board of education to draft a written summary of the issues which were discussed while in closed session. Specifically, Missouri Revised Statute § 610.020.7 states,
A journal of minutes of open and closed meetings shall be taken and retained by the public governmental body, including but not limited to a record of any votes taken at such meeting. The minutes shall include the date, time, place, members present, members absent and a record of any votes taken. When a roll call vote is taken, the minutes shall attribute each “yea” and “nay” vote or abstinence if not voting to the name of the individual member of the public governmental body.
It is clear from the statutory language cited above that nothing in the current law requires written summaries. The provision in H.B. 1445 which seeks to require such summaries could potentially harm school districts throughout the state. For example, if this bill were to eventually pass, it would have the ability to stifle conversation in a closed session board meeting. As one could imagine, board members would be less likely to have open and honest discussions while in closed session regarding critical issues for fear their statements would be entered into the summary of the closed meeting minutes. This is problematic due to the fact that if a school district was ever ordered by a court to disclose their closed meeting minutes, these summaries would be available for review, thus, potentially harming the district from a litigation perspective. Open and honest discussions on critical issues, namely, the issues listed in Missouri Revised Statute § 610.021 (i.e., the exceptions), are essential to a board’s ability to act in the best interests of the students and patrons they represent.
Additionally, this bill sought to increase the monetary penalty for purposefully violating a provision of the Act from $5,000.00 to $8,000.00. Currently, the Sunshine law distinguishes between a “knowing” violation and a “purposeful” violation. A knowing violation applies a $1,000.00 civil penalty for a violation of the Act while a purposeful violation applies a $5,000.00 civil penalty.[2] Missouri Revised Statute § 610.027.4 states,
Upon a finding by a preponderance of the evidence that a public governmental body or a member of a public governmental body has purposefully violated section 610.010 to 610.026, the public governmental body or the member shall be subjected to a civil penalty in an amount up to five thousand dollars. If the court finds that there was a purposeful violation of sections 610.010 to 610.026, then the court shall order the payment by such body or member of all costs and reasonably attorney fees to any party successfully establishing such a violation.
While the difference between $5,000.00 and $8,000.00 seems relatively small in the totality of a school district’s budget, it is important to remember that attorneys’ fees may also be attached if a court determines a violation has occurred. As many school districts around the state are aware, attorneys’ fees are of no small consequence, and thus, any addition to fines or fees is significant.
Finally, H.B. 1445 sought to add a five day public comment period for various issues involving tax increases, eminent domain matters, and tax increment financing matters. Currently, there are no requirements regarding public comment periods for these assorted issues. This provision of the bill simply adds to the numerous restrictions placed on a school board while in the course of their deliberations and further serves to erode local control by a publicly elected board of education. However, on a positive note, this provision of the bill would serve to promote public participation and promote transparency, both of which promote public trust which is something all school boards strive to achieve.
H.B. 1299
While House Bill 1299 did not attract nearly as much attention as House Bill 1445, it is still worthy of discussion as it also contained provisions which sought to add harsher penalties to the Sunshine Law. House Bill 1299 contained two provisions which are noteworthy. First, H.B. 1299 sought to change the standard used for assessing monetary penalties to public governmental bodies that have been adjudged to have violated the Act. Specifically, this bill sought to do away with the knowing and purposeful distinction, as was discussed above, and to assess penalties for those who have simply violated a provision of the Sunshine Law. Second, this bill sought to increase the monetary penalty for a violation of the Act from a $1,000.00 civil penalty to a $10,000.00 civil penalty, a notable increase for any infraction of the law.
Departing from the knowing or purposeful distinction and assessing penalties for simply violating the Act is problematic for all districts across the state. It is often forgotten that board members are publicly elected officials who volunteer their time and talent to assist in properly educating the children in their district. To pass such legislation could have a chilling effect on those who might want to assist by serving their local district but fear the economic consequences of a mistake in attempting to follow the law. Further, should such a provision pass and become law, it could have the effect of driving district legal expenses upward as more and more boards of education seek legal counsel before taking any action. This does not seem to be in the best interests of school districts and their taxpayers as boards of education would seek to focus available dollars on avoiding or defending lawsuits rather than educating students.
Due to a renewed interest in the Missouri Sunshine Law, these bills, or something very similar to these bills, will be introduced during the next legislative session. It would behoove boards of education, their administrators and patrons of their districts to take the time to air their views on the proposed changes to their respective representatives and senators before these or similar bills are enacted.
[1] The Missouri Sunshine Law will be referred to interchangeably as either the Sunshine Law or the Act.
[2] House Bill 1445 does not change the civil penalty for a knowing violation, and thus, it would remain a $1,000.00 civil penalty.
© 2010 Mickes Goldman O’Toole, LLC
