Creating and Posting School Board Meeting Agendas

During the August 2023 WASDA New Superintendents Academy, Kirk Strang spoke on the topic of Creating and Posting School Board Meeting Agendas (and Other Legal Meetings) — with a focus on open meetings law — which is a relevant topic all school districts deal with.

If you missed the presentation, or simply would like some insight that you can apply to your own district, we’re sharing all of Kirk’s major talking points here in this two-part series.

Here’s an overview of what the series covers:

Part 1: Open Meetings Law & the Basic Rules of Compliance
Part 2: Open Meetings Law Myths & Public Comment

OPEN MEETINGS LAW: THE BASIC RULES OF COMPLIANCE

School Board meetings must be preceded by public notice.
1. 24 Hours’ Notice. Give 24 hours’ notice, generally. Give no less than 2 hours’ notice if shorter notice is necessary to avoid prejudice to the district.
  The language of the statute requires 24 hours’ notice “unless for good cause such notice is impossible or impractical.”
  This is and should be treated as more demanding than simply demonstrating that the 24 hours’ notice was impractical; it requires some proof of emergency or exigent circumstances, or that dire consequences would follow from having to meet the 24 hours’ notice requirement.
2. Who Gets Notice. Wisconsin statute does not require notice to be printed in a newspaper. Notice must be made “by communication from the chief presiding officer of a governmental body or such person's designee to the public, to those news media who have filed a written request for such notice, and to the official newspaper designated under ss. 985.04, 985.05, and 985.06 or, if none exists, to a news medium likely to give notice in the area.”
  
  Wis. Stat. § 19.84(1)(b).
  
  “Communication from the chief presiding officer of a governmental body or such person's designee shall be made to the public using one of the following methods”:
  1. Posting a notice in at least 3 public places likely to give notice to persons affected;
  2. Posting a notice in at least one public place likely to give notice to persons affected and placing a notice electronically on the governmental body's Internet site; or
  3. By paid publication in a news medium likely to give notice to persons affected.
  NOTE: The apparent tension between the two standards. The key lies in the notice to the ”public” provision: the standard requires notice to three parties, including the ”public,” so doing one of the things on this list only meets the notice to the public requirement.
3. Content of notice. “Every public notice of a meeting of a governmental body shall set forth the time, date, place and subject matter of the meeting, including that intended for consideration at any contemplated closed session, in such form as is reasonably likely to apprise members of the public and the news media thereof.”
Subject Matter Requirement.
Each item on the agenda must be identified and described in clear language, such that a reasonable person would be able to tell what the board is going to discuss by reading the notice.
1. This is true regardless of whether an item is scheduled for action or not, or whether the matter will be discussed in open or closed session.
2. The subject of the discussion has to be clear and the specific statutory subsection that justifies closed session discussion must be identified in the notice.
3. Reiteration of statutory language is not required. Stating the applicable section and subsections of the statutes that apply is required.
4. Boilerplate notices that do not provide specific subject matter are illegal. This cannot be stressed enough for new superintendents, who will often be told that “we’ve always done things this way.”
In determining whether a notice meets the specificity requirements of the Open Meeting Law, the following factors should be considered:
1. The burden of providing more detailed notice,
2. Whether the subject is of particular public interest, and
3. Whether it involves non-routine action that the public would be unlikely to anticipate.
  
  State ex rel. Buswell v. Tomah Area Sch. Dist., 2007 WI 71, 301 Wis. 2d 178, 732 N.W.2d 804.
Closed Session Notice. An appropriate public notice for closed session will provide an accurate citation to the applicable statutory subsection and a description of the subject matter that will be discussed. The law allows for a measure of generality in closed session notices to preserve the confidentiality of the closed session, but the notice still must be specific enough that a reasonable person, reading the notice, understands what subject will be discussed.
Minutes. Both open and closed session minutes should record the actions taken by the board. Thus, the minutes will include the motions and votes on matters that come before the board. Additional information is not necessary and, in my view, isn’t generally helpful from a legal standpoint.
Generally, discussion must be held and action must be taken in open session. In addition, all meetings at least begin in open session.

Wis. Stat. § 19.83(1) provides:

Every meeting of a governmental body shall be preceded by public notice as provided in s. 19.84, and shall be held in open session. At any meeting of a governmental body, all discussion shall be held and all action of any kind, formal or informal, shall be initiated, deliberated upon and acted upon only in open session except as provided in s. 19.85.
Wis. Stat. § 19.85(1)(a) - (g) provides the general purposes for which a closed session may be held:
- Sub. (c) relates to employment, but is not self explanatory. The district still must identify the specific subject matter of the meeting.
- Sub. (e) relates to competitive or bargaining reasons, and can apply to any number of situations where negotiations are involved. In this regard, a school board is entitled to account for the fact that a proposal may not be accepted or a resolution may not pass, and the board may wish to consider whether a closed session discussion is appropriate if those circumstances are presented.
- Sub. (g) only relates to situations where an attorney is giving oral or written legal advice about litigation the district is or is likely to become involved in. There are other subsections that justify speaking confidentially with your attorney.
- Sub. (b) applies to employee termination when there will be an “…evidentiary hearing or meeting…”. That provision also requires that the district advise an employee of their right to have the hearing or meeting held in open session. I tend to give this notice: after talking with the employee or their representative, they usually want a closed session anyway so we can use the notice (which includes the option of electing to have an open session) to document that the option was provided, as required.
- Sub. (d) involves considering “probation or parole or considering strategy for crime prevention and detection.” However, the Attorney General’s Office has advised that this provision can generally be cited for school safety planning that requires confidentiality, presumably because so many feared events are crimes as well.
- Sub. (f) is always included in my pupil expulsion hearing meeting notices. Consider adding Sec. 118.125 to public notices concerning pupil expulsion hearings.
Board committees.

Any “formally constituted subunit” of a governmental body is itself a governmental body, as defined in Wis. Stat. § 19.82(1). As such, a meeting of the subunit must comply with the Open Meetings Law.

A board committee may be classified as a “subunit” if the committee is “a separate, smaller body created by [the board] and composed exclusively of members of the [board].” The committee does not have to comprise a quorum of the board.

The attorney general has determined that certain subunits are subject to the Open Meetings Law because they have been “created by constitution, statute, ordinance, resolution, rule or order.” The following board committees are examples of subject to the open meeting law:
- A committee created by a school board’s policy handbook to review and select education materials for the board’s approval.
- A committee appointed by the school superintendent to consider school library materials.
- A school district’s strategic-planning team whose creation was authorized and whose duties were assigned to it by the school board.
Social or Chance Gatherings.

A social or chance gathering, which is not intended to circumvent the Open Meetings Law, is not considered a “meeting.”
For example, a district back-to-school breakfast may be classified as a social gathering. As such, the breakfast is not subject to the notice requirements of the Open Meetings Law.

However, the board has the burden to prove that the gathering is a “social or chance gathering,” and not a “meeting” under the Open Meetings Law.

Notice of a social or chance gathering is not required. However, there is an advantage to providing notice. In many cases, the district will want to post a notice indicating that the board will assemble, but only for the specified social gathering and that no business of the board will be conducted.

A board may wish to share with the community that a quorum of the board will be present at a social gathering. The notice should advise that the gathering is not a board meeting, and no board matters will be discussed or voted upon.

The notice does not need to meet the typical meeting notice requirements, strictly speaking, when the district is confident that the posting is to provide information but is not necessary to comply with the statute.

This brings us to the end of Part 1 of the series. In Part 2, we’ll continue diving into open meetings law — this time with a focus on open meetings law myths, and public comment.

Until then, here are some additional articles that might be of interest:

March 22, 2024

Creating & Posting School Board Meeting Agendas & Open Meetings Law, Part 1:

Basic Rules of Compliance