Board Told to Open Up About Closed Sessions

When the Montgomery County school board has met privately with its lawyers, the group has justified the closed session in the generic language of state law. The public knows only that the board is getting legal advice, not the topic.

That comparatively opaque approach might be common among local school boards. But according to a state compliance board, it's not enough.

The state Open Meetings Compliance Board advised the school board in a Jan. 30 letter that the panel had violated state statute by giving insufficient justification for closing a meeting in the fall. The advisory says, in effect, that the school board routinely divulged too little information for the public to assess whether the group had the right to meet in private.

Legal advice is one of the most common rationales for entering closed session and one of the broadest: It can cover virtually any topic under the school board's purview. Other closed-session topics, such as collective bargaining and employee terminations, are more specific and less likely to stray into the public's business.

Montgomery's school board is not the only one to routinely go into closed session for legal counsel without much explanation. Minutes from the Dec. 17 meeting of the Anne Arundel County school board, for example, say that the board met in closed session and was "updated . . . on legal matters," without further detail. Minutes from the Dec. 1 Prince George's County school board meeting indicate that the panel broached "a legal matter with counsel," but the record does not state the topic.

As a result of the advisory, and the complaint that prompted it, Montgomery school board officials say they will provide more detail on future meetings between the board and its counsel.

"I intend to make sure that that document has more specificity in it," said Ikhide Roland Ikheloa, chief of staff to the Board of Education.

He cited the Feb. 9 meeting, when the board gave a new, more detailed explanation for going into closed session -- to discuss, among other matters, the letter from the compliance board.

The advisory letter responds to a complaint from Janis Sartucci, a founder of the advocacy group Parents' Coalition of Montgomery County. She challenged the school board's handling of a closed meeting Sept. 9, effectively calling into question the panel's standard procedures for handling business it deems private.

The school board opened its public meeting that morning in a meeting room adjacent to the board chamber, a space commonly used for closed meetings. The group adopted a resolution to go into closed session to "receive legal advice." The group wanted to hear from its lawyer on a policy concerning course fees, a matter of considerable public dispute in recent months.

Sartucci said the board never held a proper public session to vote for a closed meeting, as the law requires. She said the door to the conference room was closed before the meeting began, restricting public access. As evidence, she submitted a photograph of a closed meeting door. The time stamp on the photo showed that it was taken a few minutes before the announced start time. She noted that a sign is usually posted outside the door, restricting the public and giving the impression the room is never to be entered.

Sartucci also disputed the language in the board's resolution to close the meeting, saying it failed to mention the topic to be discussed.

In response to the complaint, school board attorneys said they had followed open-meeting law, keeping the room open to the public until the board went into closed session, disputing Sartucci's photograph. They said the board had provided sufficient written justification to close the meeting and said Sartucci could not prove otherwise. They said the burden was on Sartucci to prove the board had violated the law, not on them to prove compliance.

The state board, in its nine-page advisory, wrote that it was not Sartucci's burden to prove the law had been violated.

The school board had a right to meet with its lawyer in private, the state panel concluded, as long as the board did not use the occasion to "deliberate on its position" on a policy matter, which would fall among the board's public duties. Sartucci argued the board had used the private session to discuss policy.

The state board declined to resolve the question of whether the school board followed proper procedure in closing the meeting -- and, by extension, other school board meetings -- by convening a purportedly public session behind a door that might have been closed. The advisory noted that the presence of a sign restricting public access "would discourage public observance" even had the room been kept open.

The state panel concluded the Montgomery board had erred in not stating the topic to be discussed in closed session that day.

"The statement must not simply cite the statutory authority, but must disclose the topic of discussion in order to allow the public to assess" whether the school board is following the law, the state panel wrote. Merely paraphrasing the law, as Montgomery's school board and others have commonly done, "provides the public no opportunity to weigh" whether the discussion belongs behind closed doors.