Published by MoASBO, December 2011
Under Missouri’s Sunshine Law, a vote by a Board of Education to hire, fire, discipline, or promote an employee must be made available to the public within seventy-two hours after the closed meeting in which such action occurred. Section 610.021(3) RSMo. This “72 hour rule” related to final votes on employee matters is sometimes misinterpreted. Some have interpreted the rule to mean that the Board of Education may not speak about anything that happened at a Board meeting until 72 hours after the meeting have passed. Some have interpreted the rule to mean that after 72 hours have passed, everything that was discussed in a closed Board meeting must be revealed to the public. While these interpretations are fairly common, neither are an accurate application of the 72 hour rule. This article will examine the meaning of the 72 hour rule as set forth in Section 610.021(3) RSMo to separate the fact from the fiction regarding this provision of the Sunshine Law.
Fact: Discussions regarding the potential discipline of employees may be held in closed session.
Under Section 610.021(3) RSMo, a Board of Education may close meetings and records related to, “hiring, firing, disciplining or promoting of particular employees by a public governmental body when personal information about the employee is discussed or recorded.” The term “personal information” is defined by the statute to mean “information relating to the performance or merit of individual employees.” Id. Therefore, pursuant to this section of the Sunshine Law, a Board of Education may go into closed session to discuss the possible issuance of a notice of deficiencies to a teacher, discuss allegations made against particular employees, discuss the promotion of a member of the administrative team, or to discuss other issues during which confidential performance information related to a particular employee will be discussed. This exception to the Sunshine Law should not be used in the Spring to vote on renewal decisions for groups of probationary teachers who do not require individual discussion.
Fiction: The Board of Education is required to reveal discussions related to personnel decisions to the public after 72 hours.
If a Board of Education goes into closed session to discuss personal information of a particular employee and the Board takes a vote on any final decision to hire, fire, promote, or discipline the employee, the vote and how each Board member voted must be made available to the public within 72 hours. For example, if the Board of Education goes into closed session following a teacher termination hearing to deliberate and then votes to terminate the contract of the tenured teacher, the vote to terminate and the roll call vote of each member must be made available to the public within 72 hours of the vote. The Board is not required to reveal discussions related to that vote which were held in closed session. The Board is also not required to wait a full 72 hours before making that vote available to the public. The rule merely requires that the vote be made available within 72 hours. The Board is required to inform the employee who was the subject of the vote of the Board’s decision before the decision is made available to the public.
Fiction: Even if the Board takes no vote with regard to a particular employee in closed session, the closed session minutes have to be revealed within 72 hours.
If the Board meets in closed session to discuss the hiring, firing, disciplining or promotion of a particular employee and no vote of the Board of Education is made, there is nothing that has to be made available to the public within 72 hours. The 72 hour rule only requires that final votes be made available within 72 hours. Therefore, if the Board holds a closed meeting to discuss discipline of a particular employee and no vote is taken, then the 72 hour rule is inapplicable. In this situation, the Board would merely want to reflect in its closed session minutes, the date, time, place, members present, members absent, and a brief statement that the Board discussed a personnel matter pursuant to 610.021(3) RSMo.
Fact: Discussions about the performance of District volunteers must be conducted in open session.
The Board may close meetings and votes to discuss the discipline or promotion of a particular employee pursuant to Section 610.021(3) RSMo. An “employee” subject to this provision is defined to include persons receiving wages or a salary from the District. Therefore, independent contractors, Board of Education members, and volunteers of the District are not employees as defined in this section. See Missouri Attorney General Opinions Nos. 48-88, 184-89 and 77-92. Therefore, discussions about those individuals must be conducted in open session.
Fact: Roll call votes are required to enter into closed session and for any vote taken during closed session.
When your Board meeting will include a closed session portion, add a note on your agenda that a part of the meeting will be closed and cite the specific statutory exception allowing the closure. For example: “the tentative agenda of this meeting includes a vote to close part of this meeting session pursuant to Section 610.010(6) for a student discipline matter.” Notice of a closed meeting is not required to include a tentative agenda, however a brief tentative agenda may be provided as long as confidential student or employee information is protected.
Keep in mind that when entering into a closed session, a vote to enter closed session should be done by a roll call vote in open session. Before a meeting is closed, there must be an affirmative vote to close the meeting made by a majority of a quorum of the Board. The specific reason for closing the meeting must be announced publicly in open session, with reference to the proper statutory section under which the meeting will be closed. Also, any vote taken during a closed meeting is required to be by a roll call vote. Separate minutes for closed and open session meetings should be maintained to keep things organized and to ensure ease in responding to Sunshine Law requests.
Also, keep in mind that minutes from a closed session may be approved in an open or closed session. As long as the Board approves the minutes as presented in an open session without discussion – the minutes from a closed session will remain closed to the public.
This article has set forth just some of the requirements of Missouri’s Sunshine Law in order to separate the fact from the fiction related to closed session meetings and the 72 hour rule. More information can be found by reviewing Chapter 610 RSMo, consulting your school’s attorney, or by reviewing the Missouri Attorney General’s website at http://ago.mo.gov/Open-Government.htm.
© 2011 Mickes Goldman O’Toole, LLC
