I have entitled this article, The Wrath of the Open Meeting Law or When Failure to Post Minutes, a Notice or an Agenda on a District’s Website is a Violation of A.R.S. §38-431 et seq
Every so often a member of the public will come in to the District’s office, threatening the District with bringing down the wrath of the Open Meeting Law because of some perceived violation. On those occasions, there is a particular joy when the person is completely wrong, just as there is some degree of trepidation, nay, terror, when the person is correct.
One of the areas of potential violation that I’ve seen recently has to do with the District’s website: what needs to be posted there and when. The when and where of posting to the District’s website is covered in A.R.S. §§38-431.01 and 38-431.02.
Members of the public who are used to dealing with websites for larger Arizona cities will maintain that the school district is in violation of the open meeting law for failing to post the governing board minutes on the website. The confusion lies in the fact that the school is not a city and that the rules for what items are supposed to be on the website is different for cities and towns of over 2,500 residents than it is for school districts (not to mention cities and towns of less than 2,500 residents).
A.R.S. §38-431.01 (E) requires that within 3 working days following a meeting, cities and towns with more than 2,500 residents must post on their website either a statement describing the legal actions taken by the city or town during the meeting or they must post a recording of the meeting. Then, within 2 working days of the minutes being approved by the governing body, it must post the approved minutes of the meeting on the website. School districts, on the other hand, have no such requirement—regardless of whether they have more or fewer than 2,500 students.
Another area of potential website violations concerns A.R.S. §38-431.02. Counties and school districts are lumped together in the requirement that they must “conspicuously” post a statement on their websites as to where all public notices of their meetings will be posted, including the physical and electronic locations. These locations are the official locations where anyone will know to go look for the agenda. Many districts list a physical location as their District office and an electronic location as their website.
Wherever the District says public notices will be posted and where the agendas will be found in this “conspicuous” notice on the website will be the places where the meeting notice and the meeting agenda must be posted for at least a full 24 hours before the meeting, not including Sundays or holidays. In addition to these listed places, the District should give additional notice as may be “reasonable and practicable” as to all meetings. This might include posting the notice and agenda at the schools in the district; providing copies of the notice and agenda to the newspaper, radio, and television stations; posting the notice and agenda at a post office in a small community; or telling my mom. Just kidding on the last one. Failure to post in one of the unofficial, reasonable and practicable locations for a full twenty-four hours before the meeting would not be a violation of the open meeting law, though it might be frowned upon.
In addition to the “conspicuous” notice of where the public notices of the meetings will be posted and where the agendas will be located, the school districts must also post the notices of the meetings themselves on the website. As many districts have an agenda that includes the notice of the meeting as part and parcel of the agenda, the notice and the agenda would both be posted. If the District listed the website as the electronic location for the agenda—then the agenda itself must also be posted on the website along with the notice.
Failure of the notice of the meeting—and, if listed as the electronic site for the agenda—failure of the agenda to be posted on the website for a period of not less than 24 hours before the meeting (not including Sundays and holidays), would be a violation of the open meeting law. “WHAT? Do you even KNOW what internet connectivity issues we have?” Ah, you’ve found the loophole. IF, and only if, the failure to have the meeting notice and/or the meeting notice and agenda posted on the website for a full 24 hours before the meeting was brought about by a technological problem or failure, then there is no violation as long as all the physical location notices and agendas were properly posted for the full time period before the meeting. Note: “I forgot” is not a technological problem or failure. In other words, we expect machines to fail, but humans are expected to be perfect.
What if there is a violation of the open meeting law because the notice and/or the notice and agenda were not posted on the website because, say, the school does not have a website or because the school didn’t know about the statute, or because of a human error that failed to get the notice and/or notice and agenda posted within the 24 hour window or not at all? In those instances, the school district must ratify its actions pursuant to A.R.S. §38-431.05 or the actions are null and void. In that case, the A.R.S. §§38-431.06 and 38-431.07 wrath of the open meeting law could fall down upon the District, just as that member of the public predicted.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding The Wrath of the Open Meeting Law, or other Education Law matters, please feel free to contact Candyce B. Pardee at 800.863.6718, log on to udallshumway.com, or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona with a branch office in Yuma, Arizona, and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.