No one knows what goes on behind closed doors….
One might think, with the lack of entries on this blog, that sunshine law issues in the state have disappeared. But you’d have to be blind and deaf to think that. At the moment, our state officials seem to be fascinated with the sunshine law and frankly, it is breathtaking to try and keep up with all the discussion.
Just today another newspaper took up the call for a special sunshine unit. It’s exciting to watch that discussion although I realize, especially after watching the shield law bill make its way to nowhere twice over the last two years, that having a discussion and accomplishing a task are two different things. “Cause people like to talk Lord don’t they love to talk….”
Speaking of Dolly Parton, life goes on and sunshine law issues continue to frustrate. Twice in recent weeks I’ve had discussions with callers regarding what appear to be meetings of fewer than a quorum of the members of a public body. Just today, a reporter called about a superintendent who wants to schedule individual meetings with school board members on a regular basis to discuss matters of pertinence outside of the board meeting. Clearly, it is not a violation to hold a meeting with an individual board member. But when a series of meetings are planned in order to make certain that the discussion at the board meeting goes smoothly (or isn’t held at all), in short, to avoid public discussion of public business, there’s the potential for a court to find that the law has been violated. “(I)t is the intent of the legislature that the sunshine law would apply to meetings of groups of less than a quorum of a public governmental body where a quorum or more of the body was attempting to avoid the purposes of the sunshine law by deliberately meeting in groups of less than a quorum in closed sessions to discuss … public business….” said the Western District Court of Appeals in Colombo v. Buford, a 1996 decision.
Many of us who are interested in these cases have long looked for an opportunity to take this language and turn it into a decision, but haven’t been presented with the right set of facts. It’s not for want of trying, however. Indeed, Attorney General Jay Nixon attempted to litigate this very theory with the Missouri Higher Education Loan Authority in 2006, and eventually reached a settlement with that group in connection with such an action by MOHELA.
Even as recently as last month, a prosecuting attorney in Vernon County acknowledged to the city manager in a written opinion I have seen that a “walking” quorum was established in regard to meetings being held by some members of the city council in Nevada. That prosecutor appears to have concluded, in further analysis, that there was no violation in their set of facts because no “discussion” ensued. He claims “the process of gathering information does not amount to discussion.” But then goes on to say a topic was raised. He appears to say few words were exchanged. It seems like it’s a question of fact whether there was a discussion or not and without more facts, an observer cannot determine whether there was a discussion or not. But it certainly drives home the point that this is an area for a public body to tread carefully and potentially ripe with danger.
In short, discussion of public business belongs in public meetings. Not behind closed doors.