nary agenda, if available) directly to people who have registered to receive direct notice. Boards must determine how they will provide direct notice — e-mail seems the most logical choice — and make rules telling members of the public how to register, how frequently they must re-register or reconfirm their e-mail address (for example), and assess a cost, if any, for providing direct notice. Assuming the board provides direct notice by e-mail, it should maintain a copy of the e-mail, showing all people to whom it was sent and the time and date it was sent, and attach the e-mail to the minutes of the meeting. The minutes also should record when the notice was posted on the bulletin board, and, if a preliminary agenda is available, the message sending it, and the time of its posting also should be made part of the minutes. Boards also must adopt rules of parliamentary procedure and must act in accordance with those rules, unless a federal or state law requires a different procedure. Boards should identify in their minutes and policy manual the rules they have adopted. Members of the public — and this includes media — may openly photograph, record or videotape board meetings, but only so long as they do not disrupt the meeting. Boards may want to adopt rules to prevent disruptions such as establishing a certain area of the board room where people making recordings are out of the way and still can see and hear what is going on. Minutes must be “made available to the public as soon as practicable after approval.” This seemingly innocuous provision could, if violated, result in an OMA violation. Because voting by secret ballots is not allowed, boards should consider recording how each board member votes by name, rather than stating the vote totals (e.g., “the vote was 3 to 2 in favor”), as a way of documenting that no secret ballot was used. Of the nine enumerated reasons for executive session in the OMA, four explicitly require that a compliance opinion (certification) be entered in the min-
If a civil action to enforce the OMA is brought against board members, their ability to defend themselves may depend on how thoroughly the board documented, at the time it met, its full compliance with the OMA. utes. Boards also should document compliance with the other exceptions, even though not required by the OMA. For example, one exception allows a board to go into executive session for disciplinary reasons when expressly allowed by federal or state law, and the OMA generally provides that boards can go into executive session “as otherwise expressly provided by other federal or state statutes.” Any time a board goes into executive session based on one of these provisions, it should indicate in the minutes the exact federal or state law that it is relying on and should consider having its attorney give an opinion that the executive session will comply with that law. Although unlikely, the board — if it used the security exception for an executive session to discuss plans that involved critical infrastructure now owned by the board — the board should attach a copy of the notice regarding the executive session to the owner of the critical infrastructure to its minutes and document when and how it was delivered to the owner/ operator (usually a utility) of the critical infrastructure. Particularly important is the exception that allows an executive session to discuss real estate transactions. This exception does not apply if a board member who has a personal interest in the transaction participates in the executive session or if a condemnation action has been filed.
Before voting on a motion to go into executive session, board members should be individually asked if they have a personal interest in the transaction, and their responses should be included in the minutes. Similarly, the board’s attorney or agent in the transaction should disclose for the minutes that no condemnation action has been filed. Mentioned earlier was the possibility of a civil action against board members for violation of the OMA. Board members may be sued for: s Disregarding notice requirements; s Violating the act in open meetings
(such as voting by secret ballot, failing to follow adopted procedural rules and not allowing someone to record a meeting); s Discussing in executive session mat-
ters beyond the scope of the exception(s) for which the executive session was convened; or s Otherwise violating the act.
If the claim is based on a violation alleged to have occurred in an executive session, the burden of proof at the final hearing is on the defendant board members, who must show that “the discussions during the executive session were limited to matters related to the subjects included in the motion to convene the executive session.” Thus, it seems boards must keep some record of what they discussed in executive session, including documents that were reviewed, if any. Otherwise, defendant board members risk trying to remember and prove what was discussed in an executive session that occurred as much as two years earlier. If notes are kept, they should be treated as confidential and should be maintained separate from the minutes in a secure, locked file cabinet to which access is limited. Copies of any documents reviewed at the executive session should be maintained with the notes. Boards should discuss with their attorney having these notes and documents maintained by the attorney. These proposals are fairly simple. Following them could help a board both comply with the OMA and prevail if it is sued for violating the act. s Alabama School Boards • August/September 2005 7