School district holds illegal executive session, again
Date posted: April 11, 2014
SHERIDAN — In the midst of a lawsuit between The Sheridan Press and Sheridan County School District 2 asserting that the district violated the Wyoming Open Meetings Act, it appears the board has done it again by discussing an agreement with the Sheridan Economic and Educational Authority behind closed doors.
Wyoming law demands that deliberations and actions of a public entity be done openly. Statutes also list exemptions under which governing bodies may hold closed executive sessions.
At the conclusion of the SCSD2 Board of Trustees regular board meeting Tuesday night, a motion was made to break into executive session — a closed meeting of the board in which the public may not be present, but Superintendent Craig Dougherty and SCSD2 attorney Kendal Hoopes were.
After an hour and a half behind closed doors, the board reconvened to vote on those items which were discussed.
One item was stated as an approval of an agreement with SEEDA.
SCSD2 had been a member of SEEDA — along with the city of Sheridan and Sheridan College — until the district’s recent decision to withdraw.
The Press asked via an email sent on Wednesday to Board Chairman Richard Bridger, Dougherty and SCSD2 Human Resources Coordinator Cody Sinclair that the district identify which exemption of the law allowed for that discussion to be held in a closed session. Sinclair replied, “We are not allowed by law to discuss what occurred in executive session.”
The problem with this reply, and this scenario, is threefold.
First, there is no law stating that the exemption being acted under cannot be disclosed. In fact, the opposite is true. The district should include in their motion to move the meeting to executive session the exemption under which they are motioning, which the district failed to do.
The second problem is that any and all documents created by a party to a public entity are public record. Therefore, if an agreement had been drawn up with SEEDA, which it had, this is a public document calling for public discussion and inspection.
The final and most significant problem is that, though the district has failed to respond to the repeated requests for information seeking to learn why they felt this action qualified to be handled behind closed doors, it does not appear that there is a valid reason.
A public records request was submitted by The Press to SCSD2, the city and the college, asking each to release any and all documents relating to the withdrawal of the district from SEEDA.
A copy of the agreement presumably being discussed in the closed meeting Tuesday night was delivered by the city Thursday.
The “Amendment to Sheridan Economic and Educational Development Authority Joint Powers Board Agreement” as well as the preceding “Memorandum of Understanding” both addressed the withdrawal.
The documents were reviewed by media law attorney Bruce Moats asking his professional opinion as to what reason, if any, this could have been discussed in executive session. The school board had listed personnel and legal matters on its agenda as general reasons for the executive session.
“I don’t see how this would involve personnel,” Moats said, “so without hearing their explanation we can only assume they were acting under the litigation exemption but based on the information at hand it appears there was no legal reason for them to be discussing this in executive session.”
The act provides 11 exemptions to the law allowing public entities to conduct business in private. Excluding those which could not apply to this situation, such as matters of national security, the district may have acted in this manner to seek legal counsel.
The Wyoming Open Meetings Act allows for legal matters concerning pending or proposed litigation to be discussed with an attorney in executive session.
Moats said this wording limits the attorney-client privilege in the context of open meetings strictly to those issue and excludes general attorney consultations, though some government attorneys have interpreted the act to allow governing bodies to use executive session for attorney consultations.
There has yet to be a trial challenging the interpretation in Wyoming but other states with similar exemptions have rejected the attorney-client privilege argument and favored openness.
According to SEEDA Administrator Robert Briggs, SEEDA has no known pending or proposed litigation with any other entity.
Additionally, Briggs said the SEEDA agreement with the district is likely slated for the consent agenda portion of the city’s next board meeting, not executive session.
If, per chance, the district was unsure of whether or not the issue qualified for this exemption, there are steps in place to determine if it would in fact qualify.
A precedent was set in the Wyoming Supreme Court in the public records case of Sheridan Newspapers v. City of Sheridan in 1983. The case states that to withhold information from the public, that information must meet two criteria: first, the release must be a harm to the public’s interest and second, that harm must outweigh the public’s right to know.
If there was doubt whether or not the details surrounding the withdrawal from SEEDA could harm the public to the extent that it outweighs citizens’ right to know, as an additional failsafe, the act is written that when unsure, parties involved should always act in favor of openness.
In fact, the exemptions set in the act simply allow a public entity to hold certain types of business in private, but in no way demands that they do so.
Each public entity can be as open or closed to the public on these matters as they choose to be. They cannot, however, choose to close public doors on any other matters.