This month’s article on OMA Basics focuses on the notice requirements for regular, special, and emergency meetings, as well as the enforcement mechanisms and penalties that accompany these requirements. Additionally, with the 2017-2018 lame duck session officially over, we address two new amendments to the OMA that could impact how your school board operates.
Notice of Meetings
Public school board meetings generally require two types of notice: (1) notice to board members in compliance with the board’s bylaws and (2) notice to the public under the OMA.
The Revised School Code requires that local school boards adopt bylaws for procedures and matters that relate to the “effective and efficient” functioning of the board, including procedures for notice of the meeting. The board’s bylaws should address the time and place for regular meetings and notice to board members for special meetings, including the content and delivery methods of those notices.
The OMA requires that a board officially designate a person to implement the public notice requirements. The designation must occur during a board meeting and be recorded in the meeting minutes. OAG No. 5183 (1977).
Content of Public Notice
The OMA requires that public notices for all school board meetings include the following information: (1) the public body’s name, address, and telephone number; (2) the date, time, and place of the meeting; and (3) a statement where meeting minutes are stored and available for inspection. This notice “must be posted at the school board’s principal office, the principal office of the school district, and any other locations considered appropriate by the public body. If a public body does not have a principal office, the required public notice for a local public body shall be posted in the office of the county clerk in which the public body serves.
Other state and federal statutes may also include a public notice requirement, such as notice about when and how individuals with disabilities may request accommodations for attending and participating in public meetings under the Americans with Disabilities Act.
OMA section 5 requires that a schedule identifying the dates, times, and places of regular meetings be posted within 10 days after the first meeting of the public body in each calendar or fiscal year. If the board changes the regular meeting schedule, within three days, a public notice must be posted with the updated dates, times, and places of the meetings.
A public notice for a rescheduled regular meeting must be posted at least 18 hours before the rescheduled regular meeting takes place. The notice must be posted in a prominent and conspicuous place at the public body’s principal office. If the public body directly or indirectly maintains an official internet presence that includes monthly or more frequent updates of public meeting agendas or minutes, the notice also must be posted on a portion of the website that is fully accessible to the public. These requirements also apply to meetings recessed for more than 36 hours.
The requirements for rescheduled regular meetings mirror the notice requirements for special meetings. The term “special meeting,” describes any school board meeting that is not included in the notice of regular school board meetings posted at the beginning of each fiscal year. A special meeting must be posted at least 18 hours before the meeting in a “prominent and conspicuous place” and need only include the date, time and place of the meeting. The notice must be posted at the public body’s principal office and on the public body’s website, if applicable.
OMA section 5 permits a board to meet in an emergency session for “a severe and imminent threat to the health, safety, or welfare of the public.” To hold an emergency session, 2/3 of the members serving on the school board must decide that “delay would be detrimental to efforts to lessen or respond to the threat.” The 18-hour notice requirement for special meetings does not apply to emergency meetings. If the emergency meeting does not comply with the 18-hour notice requirement, paper copies of the public notice must be available at the meeting and must explain why the board could not comply with the 18-hour notice requirement. This explanation must be specific to the circumstances that gave rise to the emergency public meeting. Use of generalized explanations such as ”an imminent threat to the health of the public” or ”a danger to the public welfare and safety” does not meet the explanation requirements. Notice must also be posted on the board’s website, if applicable.
Within 48 hours of the emergency meeting, the board must send official correspondence to the board of county commissioners of the county in which the public body is principally located, informing the commission that an emergency public meeting with less than 18 hours’ public notice has taken place. This correspondence shall also include the public notice of the meeting with explanation.
Sanctions and Liabilities
OMA section 11 permits the attorney general, the county prosecutor, or a person to commence a civil action to compel compliance or to enjoin further noncompliance with the OMA. A person who succeeds in obtaining relief against the public body, will recover actual attorney fees and court costs.
OMA section 12 establishes criminal misdemeanor penalties when a public official intentionally violates the OMA, A first offense is punishable by a fine of not more than $1,000. A second offense during the same term is punishable by a fine of not more than $2,000, imprisonment for not more than a year, or both. A public official found to have intentionally violated the OMA shall also be personally liable in a civil action for actual and exemplary damages of not more than $500, plus court costs and actual attorney fees to a person or group of persons bringing the action.
A public body’s decisions are presumed to have been adopted in compliance with the requirements of the OMA, unless invalidated by a court. A circuit court has the authority to invalidate a public body’s decisions made in violation of the OMA if the violation impaired the public’s rights. The timelines for seeking invalidation are short, generally requiring filing within 60 days after the approved minutes are made available to the public, or within 30 days after the approved minutes are made available to the public if the action sought to be invalidated involves the approval of contracts, receipt or acceptance of bids, making of assessments, procedures pertaining to the issuance of bonds or other evidences of indebtedness, or submission of a borrowing proposal to the electors. To prevail in a suit for invalidation, the complainant must establish specific facts that illustrate how the public’s rights were impaired.