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Published in Print: September 25, 2002, as School Boards Struggle With Sunshine Laws

School Boards Struggle With Sunshine Laws

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Katz's Deli in downtown Austin is popular among Texas politicos, among others, as a place for good food and lively conversation. Its slogan is Katz's Never Kloses.

That motto, however, may not apply to public meetings. At a lunch in 2000 involving three members of the state board of education, more may have been on the menu than just idle chatter over the chunky chicken salad and other overstuffed sandwiches.

A local prosecutor alleges that the elected officials, who formed a quorum of the board's finance committee, were discussing state business with three financial advisers in violation of the Texas Open Meetings Act. All six were indicted Aug. 29 by a Travis County grand jury on misdemeanor charges of holding a closed meeting and conspiring to circumvent the open-meetings law.

The Texas case involves some of the highest-ranking education policymakers to get into legal trouble under state open-meetings laws. And it comes at the same time local school board members in Arizona and New Mexico districts have faced criminal or civil charges of violating such government-in-the-sunshine laws.

Such cases illustrate the frequent clash between the public's right to know what its school policymakers are up to, and board members' desire—innocent or otherwise—to confer informally or confidentially with colleagues.

Last month, a jury convicted five former members of the Las Cruces, N.M., school board on misdemeanor charges of violating that state's open-meetings law. Prosecutors said the board had met in illegal closed-door sessions to approve bonuses and other perks for the district's then-superintendent. The convicted board members were fined $500 each. ("Criminal Charges Filed Against School Board for Its Closed Meetings," Feb. 13, 2002.)

Meanwhile, the Arizona attorney general's office has filed a civil suit seeking to oust two members of the Wilson school board in Phoenix over alleged open-meetings violations. The two board members, who deny having violated the law, are fighting efforts by state prosecutors to make them resign, pay fines, and apologize publicly.

Just a Lunch?

In the Texas case, employees of the Texas Education Agency witnessed a mix of state board members and financial advisers seated at two different tables in the restaurant. But, those witnesses allege, the men were passing documents among themselves relating to an important committee vote later that day about whom to hire to manage the state's multibillion-dollar education endowment.

The three members—two of whom still serve on the 15-member Texas board of education—and the three advisers deny crossing any legal lines at Katz's Deli that day two years ago.

"The men who found themselves at lunch in August of 2000 weren't discussing anything that had anything to do with the business they were going to discuss later that afternoon," said Andy Drumheller, a lawyer for indicted board member David Bradley. "It was really just a lunch."

But Jim Connolly, an assistant county attorney in Austin who is working on the case, said his office would prove otherwise.

"We think it is especially important that those entrusted with the management of the public's money comply with the letter and the spirit of the Open Meetings Act," he said.

Advocates of open government say the recent rash of serious open-meetings cases involving school boards may be unusual, but should come as no surprise.

"School boards are among the worst offenders on open meetings," said Robert H. Johnson, the executive director of the New Mexico Foundation for Open Government, a private watchdog group in Albuquerque. "These people are used to running their businesses in private. When they become public officials and realize they have to do their work in the open, it is sometimes hard for them to swallow."

Dave Lieber, a columnist for the Fort Worth Star-Telegram with a particular interest in sunshine laws, contends that school boards have become so public relations- conscious, so intent on presenting a positive message to the public, that little serious policy debate is conducted at public meetings anymore. He recalls one recent board meeting in his area at which more time was devoted to honoring student musical groups than to discussing items on the board agenda.

"It was like the 'Ted Mack Amateur Hour,'" Mr. Lieber said. The newspaper columnist began an occasional feature this year called "Ask Captain Sunshine," in which he inveighs against outright violations and creative detours around the state's open-meetings and open-records laws.

"I declared this to be the year of openness in government," he said.

But advocates for school boards, while not willing to go on record in favor of closed government or backroom deals, say it is important to make distinctions. While some secretive policymakers do knowingly violate open-meetings laws, they say, many well-meaning board members try to follow the laws but get tripped up by their intricacies.

"It is becoming increasingly difficult to get people to run for a volunteer school board position, in part because you have this possibility of being criminally sanctioned for an open-meetings-law violation," said Christopher Thomas, the legal counsel of the Arizona School Boards Association.

"We try to offer a lot of training on open meetings," he added. "But we don't expect board members to be experts on it. When there are gray areas, we ask them to defer to their superintendents or attorneys."

The laws vary from state to state, but they typically prohibit a quorum of a government board from discussing public business in private or without proper notice to the public. Most states have exceptions that allow personnel matters, real estate transactions, or pending legal actions to be discussed in closed-door executive sessions. But under many of the laws, even chance encounters at the mall have the potential for getting board members into trouble. Some of them worry about attending social events together.

When Becky Jordon, a board member in the 28,000-student Kanawha County, W.Va., district, wanted to invite her fellow board members and other district employees to her house for a summer picnic recently, she first checked with her superintendent to make sure that state law allowed it. The superintendent told her that board members were allowed to gather at social functions as long as board business was not discussed.

"I just thought it was a nice gesture for all of us to say, 'Hey, we're a team,'" said Ms. Jordon. She added that she was so busy serving pasta salad and turkey that she could not have had business discussions with her colleagues even if she tried.

But it is not uncommon for some boards to gather for meals shortly before a public meeting, where board business is broached either innocently or on purpose.

"There are a lot of breakfast sessions at the local Shoney's, where board members seem to think that's not considered a meeting under the law," said Christopher W. Deering, a media lawyer in Birmingham, Ala., who has studied open-meetings laws.

Today's notion of open government took a while to become established, Mr. Deering points out.

Meetings of the Continental Congress were held behind closed doors, for instance. And while the U.S. House of Representatives has by and large met in the open since its inception, the U.S. Senate did not unlock its doors until 1794, Mr. Deering said. While a few states passed open- meetings laws early in the 20th century, the movement did not sweep most of the country until the 1950s and 1960s, he added.

"Government exists for those who elected the leaders to office," Mr. Deering said. "In a democracy, the public and the media have the right to get that access to decision- making."

Despite such high-minded thoughts, one need not be a political scientist to realize that many major government decisions at the federal, state, and local levels are, in reality, made behind closed doors. Yes, Congress votes in public, but key agenda-setting decisions are made by the legislative leadership out of the public eye. And while a federal open- meetings law requires many boards and commissions to meet publicly, the only sunshine at presidential Cabinet meetings comes from the Rose Garden outside the windows, not the prying eyes of reporters.

Arizona Dispute

In the Arizona case involving the Wilson Elementary School District board, the state attorney general's office said it conducted a lengthy investigation after receiving complaints that two of the board's three members were violating the state law.

"There were repeated, repeated violations of the open-meetings law," said Pati Urias, a spokeswoman for the office. "They are pretty blatant ones."

But Suzanne Dallimore, a lawyer for the two board members the state is seeking to punish, said her clients were actually trying to shed more light on government decisionmaking in the 1,500-student district. The board members, Hilaria Lopez and Rosa Marie Sudea, were aggressive in asking questions of the district superintendent, such as about how money was being spent.

"They couldn't get answers," Ms. Dallimore said. "War broke out between the superintendent and those two board members."

The state's complaint accused the school board members of failing to post adequate notice of meetings, taking action on matters not on the agenda, and using generic agenda items that failed to indicate the specifics of a vote, for example, to approve payroll vouchers.

"This is a political case," said Ms. Dallimore, who used to work in the Arizona attorney general's office. "The statute is much less rigid than this. The statute doesn't prohibit a member of the board from taking action to get information from the superintendent."

Ms. Urias said the attorney general's office plans to pursue the case in court.

"This office takes the open-meetings law very seriously," she said. "This office does not proceed where it doesn't think there were actual violations."

In the Texas case, the indictments under the open-meetings law appear to be a byproduct of a larger, more complex investigation into the state board of education's management of the $17.4 billion Permanent School Fund.

Travis County Attorney Ken Oden, who prosecutes misdemeanor crimes in the jurisdiction that includes Austin, the state capital, has been investigating allegations of conflict of interest and improper influence by outside money managers on the school board's oversight of the school fund.

According to prosecutors and a Texas House of Representatives report, three Texas Education Agency employees went to lunch at Katz's Deli on Aug. 30, 2000, where they noticed one state board member at a table with one adviser and the two other board members seated nearby with the other two advisers. The three board members were all on the committee that oversaw the Permanent School Fund.

The TEA employees reported that they saw the six men exchanging documents about the possible hiring of external money managers. "There was much movement between the two tables," one witness reported in a written statement to investigator. Later that day, the board's finance committee met officially to make recommendations about hiring outside money experts.

The defendants and their lawyers say the indictments are politically motivated and amount to a case of small potatoes now brought to a boil only because the larger investigation has failed to yield any more-serious indictments. The open-meetings charges came one day before a two-year statute of limitations would have run out.

"I am absolutely puzzled by what Ken Oden is doing," said Mr. Drumheller, the lawyer for Mr. Bradley, one of the board members. "I have no idea what his agenda is as a law-enforcement officer or as a human being. I don't have any explanation as to why this wouldn't have been addressed closer to the events."

He added that the TEA employees have never suggested they overheard state business being discussed at Katz's Deli on the day in question.

Mr. Oden did not return calls seeking comment, and his assistant, Mr. Connolly, declined to go into the specifics of the case.

This Sept. 11, during a regular meeting of the state board of education, member Joe J. Bernal excused himself to report to the Travis County jail for booking on the two misdemeanor charges. Mr. Bradley skipped the state board meeting altogether that day and also reported to the jail.

They were released on $1,500 personal recognizance bonds and are awaiting trial along with the other defendants.

Vol. 22, Issue 4, Pages 1,14-15

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