March 29, 2024
Creating & Posting School Board Meeting Agendas & Open Meetings Law, Part 2:

Open Meetings Law Myths & Public Comment

WASDA Conference 2023 School Board Meeting Agendas

This past August, at the 2023 WASDA New Superintendents Academy, Kirk Strang spoke on Creating and Posting School Board Meeting Agendas (and Other Legal Meetings) — with a focus on open meetings law.

In Part 1 of this series, we focused on open meetings law and the basic rules of compliance. In Part 2, we continue our discussion on open meetings law, this time with a focus on open meetings law myths, and public comment. 

OPEN MEETINGS LAW MYTHS

  1. “We need to get the meeting notice to the newspaper before their deadline date.”

    There is no legal requirement that meeting notices be published in a local newspaper, even if it is the official newspaper of the school district.

    Tradition, good press relations, and effective communications with the public certainly support trying to get notices published in the local newspaper. However, that is a policy issue, not a requirement of law for regular school board meetings.

    When publishing notices in the newspaper, make sure to use a disclaimer to advise the public that a final notice for this meeting will be posted no less than 24 hours prior to the meeting or no less than 2 hours prior to the meeting where for good cause such notice is impossible or impractical.

  2. “It doesn’t have to be included in the agenda if it’s not an action item.”

    All matters that will come before the board must be included in the notice (i.e., put on the “agenda”). The public is entitled to know what the board is going to discuss, not just what the board will vote on.

    The goals of the open meetings law include providing access to the public and ensuring that constituents can watch their elected officials at work. Discussion and debate — even without formal action — is central to governmental functions and decision making.

  3. “To post notice of a subject for closed session, you have to cite the correct statutory subsection and provide the language of the statute.”

    This might be one of the most common errors committed by public officials. A notice can include the language of the statute but doing so does not meet any requirements of the open meetings law; instead, the language that appears in the notice should identify the subject matter and what will be discussed. The notice should also make reference to the correct statutory subsection. 

    In sum, the notice must include the correct citation and a reasonable description of what will be discussed but reiterating the language of the statute does not add anything to our compliance initiatives. 

  4. “If we made errors in properly noticing something for closed session, we have to take the matter up in open session.”

    Failing to properly notice something for a closed session does not give a governmental body the right to treat that meeting’s corresponding open session as the default meeting, where anything that was not properly noticed for closed will be addressed in open. Open session notices also have to accurately notify the public of the subjects that will be discussed. 

    If it isn’t properly noticed under the open meetings law, the governmental body may not be able to discuss it (until it meets the notice requirement). 

  5. “A special school board meeting and a regular school board meeting are noticed the same way.”

    Wis. Stat. § 120.11(2) sets forth the following requirements for special board meetings:

    1. A special school board meeting shall be held upon the written request of any school board member. The request shall be filed with the school district clerk or, in the clerk's absence, the school district president who shall notify in writing each school board member of the time and place of the special school board meeting at least 24 hours before the meeting. 
    2. Notice shall be delivered to each school board member in a manner likely to give the school board member notice of the meeting.
    3. A special school board meeting may be held without prior notice, if all school board members are present and consent, or if every school board member consents in writing even though he or she does not attend.

      This is not the same kind of “special meeting” that is referenced in Wis. Stat. 120.08(2), which carries the power of an annual meeting. Instead, this type of special meeting is in contrast with the school board’s regular meeting, described at Wis. Stat. 120.11(1). Therefore, these requirements simply relate to a school board meeting that is not a regular meeting.

PUBLIC COMMENT

A school board meeting may provide for a period of public comment if it is properly noticed. For purposes of crafting agendas:

  1. Identify any period of public comment. 
  2. Remind the board that, while the statute states that a governmental body may discuss any matter raised by the public, we generally encourage confining any discussion to determining procedurally how the individual can be assisted by the district.
  3. If a matter raised does not appear on the meeting notice, the DOJ advises that the board limits the discussion of that subject and defers any extensive deliberation to a later meeting for which more specific notice can be given. 
  4. A Board may not take formal action on a subject raised in the public comment period unless that subject is also identified in the meeting notice. 
  5. There is some doubt that school board members can participate in their board’s own public comment period.

A school board has the authority to prohibit certain behaviors or comments and to do so does not violate a speaker’s free speech rights. These include:

  1. A true threat;
  2. Comments that are reasonably understood to constitute one or more complaints about an employee or group of employees, or an attack on one or more employees;
  3. Any personally identifiable references to a student;
  4. Comments that are primarily for the purpose of attacking an individual (this forum is for an exchange of ideas, not for exchanging slanderous remarks); and
  5. Comments by school board members (can school board members lawfully participate in a period of public comment?).

NOTE: Whenever possible, school districts should have a comprehensive set of rules for public comment that are approved by the board and available to the public before the board takes any corrective action. Being in a position to establish that the rule being enforced was in place and is facially neutral can buttress the board’s position that the restriction is legally appropriate. It can also blunt claims that the board is making up the rules as it goes.

Public Comment rules that seem to be permissible and can be an effective means of controlling more challenging groups at board meetings: 

  1. Remain seated;
  2. No waving or hand gesturing;
  3. No vocal interference with speaker during their time to address the school board;
  4. No disruption or incitement to disrupt;
  5. No taunting, ridicule, or other deliberate demonstrative behavior directed at others or their views; and
  6. No conduct reasonably understood to be an attempt to influence or impair a speaker’s ability to deliver their comments.

This brings us to the end of this series. We hope it helps with the various aspects of creating and posting school board meeting agendas in your district. In our next article, we’ll cover another WASDA New Superintendents Academy presentation Kirk facilitated — Everything Superintendents Need to Know About the Public Records Law and the Recently Updated Records Retention Schedule.

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