Public Meetings Law Clarified
For Nebraska School Board Members
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Confusion Regarding the Nebraska Public Meetings Act
If you are a school board member in Nebraska, you may have been advised (or you may be advised in the future) that you cannot have a private conversation with other members of your school board, regarding issues within your district. The advice (or reprimand) goes something like this: “I hear you have been talking to other board members about X. I just need to warn you that you cannot have these conversations because it can be considered a violation of the Nebraska Open Meetings Act (NOMA). We can only talk about these things during our meetings.”
This is incorrect advice. This advice may be coming from a central source, and it is being used in an attempt to control people who have been elected to run the schools.
The purpose of NOMA (Neb. Rev. Stat. § 84-1407 et seq.) is to prevent the formation of public policy in secret. The purported worry is that one or two members of a board may have private conversations with other individuals on the board, and then show up at the next meeting ready to vote without any public discussion or explanation as to the basis for the decision. This is sometimes referred to as “a walking quorum”, “a constructive quorum”, or “daisy chain” meetings.1
Limits on Communication Disrupt Local Control of Education
To the extent the law is used to reign in government boards and bodies who are trying to hold secret meetings or form public policy in private, this policy is necessary.
However, when the statute is being used to disrupt local control over a school, it is inappropriate, manipulative, and constitutes an empty threat under Nebraska law. The concern may come from your board president who has been misled by others. You may hear it from your Superintendent, or at a conference for new school board members.
Intentionally or not, the practice of limiting communication between school board members will have the effect of isolating individual board members from varied points of view, leaving the Superintendent or the school attorney as their only source of input and information. Unfortunately, there are times when these officials are closely cooperating with larger organizations or special interest groups whose primary concerns may not coincide with those of the local school district.
The School Board Represents the Taxpayers
The board was elected by their community to provide oversight and direction to the Superintendent and staff. Board members cannot provide proper oversight if they are kept in the dark regarding the factors that go into a decision made be the Superintendent. Board members have a duty to represent the taxpayers.
What can board members do when they would like to learn more about an upcoming issue or discuss issues in order to prepare for upcoming board meetings? They can and should certainly speak with constituents, school administrators (including the Superintendent), school employees, and students. But are they prohibited from discussing these things with other members of the district’s board of education?
The Law is on the Side of School Board Members
A relevant Nebraska Attorney General’s Opinion was issued on March 5, 2018 (File No. 17-M-107) involving a complaint that members of the Omaha Public Schools Board of Education had violated NOMA by discussing the election of their officers with each other and many other people outside of the board meeting. In finding that the board members did not violate the Act, the opinion noted 3 findings:
No discussions involved a quorum.
Nothing was finalized in the discussions.
No formal action was taken by the board outside of a public meeting.
In what appears to be the only Nebraska Supreme Court case which involves facts similar enough to the Nebraska Attorney General’s Opinion, the Court denied a party’s claim that the Ord City Council had violated NOMA by taking tours of an ethanol plan in subgroups of less than a quorum each. The court held that separating the groups into less than a quorum for the tour was not a “walking quorum” designed to circumvent the requirements of NOMA. “There is simply no evidence that, through the tour, the city council was attempting to reach a consensus and form public policy in secret.” Schauer v. Grooms, 280 Neb. 426 (2010)
The Schauer case obviously deals with a different set of facts than the Attorney General’s Opinion, however the issues are the same, and instead of conflicting or creating confusion, the two together show consistency. In Schauer, the Court looked at whether the actions of the City Council appeared to be designed to circumvent the Open Meeting Act and whether the City Council was attempting to reach a consensus and form public policy in secret. Placed side by side, these criteria show the law in Nebraska:
The Nebraska Supreme Court has also held that NOMA “does not apply to chance meetings or to attendance at or travel to conventions or workshops of members of a public body at which there is no meeting of the body then intentionally convened, if there is no vote or other action taken regarding any matter over which the public body has supervision, control, jurisdiction, or advisory power.” Salem Grain Co., Inc. v. City of Falls City, 302 Neb. 548 (2019)
Communication is Allowed, but Avoid a Quorum
Therefore, in Nebraska, we have an Attorney General’s opinion and a Supreme Court Opinion which provide clear guidance, and the guidance does not tell anyone that a school board member is not allowed to discuss district matters with other school board members outside of public meetings. In fact, a board member can have discussions with every other member of the board outside of the public meetings as long as he or she is careful about how the conversations are conducted, and as long as the discussions do not take place when enough board members are present to constitute a quorum.
Because this is fairly new and infrequently challenged in Nebraska, the law may evolve, so we should keep an eye on developments. However, at this time, it is clear that school board members have every legal right to discuss issues with other board members in private and when no quorum is present.
If you are a school board member in Nebraska, and you are advised that you cannot have private conversations with fellow board members, let those concerned parties know that you have looked into this issue and you are following the law, as long as:
There was no quorum,
There was no intent to circumvent NOMA,
Nothing was finalized in your discussions, and
No formal action of the school board was taken.
Print this off and hand it to them as well.
A Louisiana court of appeals has described a “walking quorum” as a meeting “where different members leave the meeting and different members enter the meeting so that while an actual quorum is never physically present an actual quorum during the course of the meeting participates in the discussion.” The Wisconsin Court of Appeals described a “walking quorum” as “a series of gatherings among separate groups of members of a governmental body, each less than quorum size, who agree, tacitly or explicitly, to act uniformly in sufficient number to reach a quorum.” The Supreme Court of Ohio found an improper game of “legislative musical chairs” when a city manager called three series of back-to-back non-quorum meetings with groups of council members.” A California appellate court concluded that one-on-one telephone calls with members of the governing body would suffice if the calls were essentially a poll to arrive at the collective agreement of the governing body. Hawaii's intermediate appellate court has held that “a series of one-on-one conversations relating to a particular item of Council business” circumvented the spirit of the state's open meeting law. Nevada's Supreme Court has held, however, that a “constructive quorum” is not necessarily established by back-to-back briefings conducted with agency members, that, taken as a whole, would add up to a quorum. That court further concluded that, in the absence of a quorum, it was not improper for members of a public body to “privately discuss issues or even lobby for votes.” And Montana's Supreme Court declined to adopt a “constructive quorum” rule that would encompass “serial one-on-one discussions.” State v. Doyal, 589 S.W.3d (Tex. Crim. App. 2019)
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