Supreme Court Rules On Open Meetings Caseby Malina Piontek, AWSA Legal Counsel In December 2016, AWSA joined as an amicus party in support of the Appleton Area School District in its position in a case involving a curriculum committee and the Open Meetings Law. Earlier this summer, the Supreme Court ruled in favor of the parent in Krueger v. Appleton Area School District. This Update will advise you about the outcome of that case, and what it means for principals leading or serving on committees. In July 2011, as John Krueger’s son prepared to enter ninth grade, Krueger became concerned about the ninth-grade Communication Arts course curriculum. He and the parent group Valley School Watch asked the school district to offer an alternative freshmen Communications Arts course because they opposed references to suicide and sex in the young adult book, The Body of Christopher Creed. The school board refused to offer an alternative course, in part because the book was not required reading for the class. Students could choose which books they wanted to read. Furthermore, concerned parents could opt their children out of reading a book they considered inappropriate. The superintendent asked members of the district’s Assessment, Curriculum, and Instruction Department to address Krueger’s concerns. Department staff, on their own initiative, decided to conduct a full review of the existing course materials and formed the Communication Arts 1 Review Committee for that purpose. Community members had the opportunity to submit feedback on the works, and 33 did. The Review Committee was comprised of 17 district administrators, teachers, and staff. They read approximately 93 fiction books, assessed their suitability to meet the course’s curricular needs and forwarded a recommended list of 23 books to the school board. In the course of considering the books, the Review Committee held nine meetings between October 2011, and March 2012. The district did not open the meetings to the public because it did not believe the Review Committee was subject to the Open Meetings Law based on the advice of legal counsel. Therefore, each of those meetings was held without notice to the public and was closed to the public. When Krueger asked to attend the meetings, he was told that the meetings were not open to the public. On Krueger’s behalf, the public-interest law firm, Wisconsin Institute for Law and Liberty (WILL) filed a lawsuit, alleging that the school board violated the Open Meetings Law by failing to give notice of and excluding the public from, the meetings. Since district leaders used board policy and its handbook to create the Committee, it was "created by a rule or order" under state law, and its meetings, therefore, were subject to the Open Meetings Law, Krueger and WILL argued. They further argued that under Wisconsin law, any committees created by a rule or order are subject to the state's Open Meetings Law, which means members of the public must be able to attend committee meetings, and dates, times and locations must be posted in a public place. Both the Outagamie County Circuit Court and the Wisconsin Court of Appeals sided with the school district in deciding that the Review Committee meetings did not have to be open to the public because the Committee was not a governmental body. The Wisconsin Court of Appeals concluded that the administrators formed the Review Committee on their own initiative, and broadened the scope of the Committee's review on their own initiative. Moreover, the superintendent merely asked them to respond to Krueger’s request and was not further involved in developing any process. Therefore, the facts did not support a finding that the Review Committee was “created by rule or order” and its meetings were not subject to the Open Meetings Law. Krueger appealed. In a unanimous decision, on June 29, 2017, the Supreme Court ruled that the Committee was a “governmental body” subject to the Open Meetings Law because it had been created pursuant to a government rule. The Supreme Court stated the essential elements of an entity in order to be a governmental body are (1) a defined membership and (2) collective responsibilities, authority, power, and duties vested in the body, distinct from the individual members. It read the district’s rules as authorizing the Committee, finding: Here, the Board's Rule 361 provided that the review of educational materials should be done according to the Board-approved Assessment, Curriculum, & Instruction Handbook (the "Handbook"). The Handbook, in turn, authorized the formation of committees with a defined membership and the power to review educational materials and make formal recommendations for Board approval. The Court concluded that Rule 361 represented the board's formal authorization for the Department to review and recommend educational materials for board approval pursuant to the processes in the Handbook. It found that the Committee is, therefore, a body created by rule and consequently subject to the Open Meetings Law. The Supreme Court provided guidance as to what kind of committees, or groups, would not be subject to the Open Meetings Law. Groups that would not be considered “governmental bodies,” according to the Court, are those “loosely organized, ad hoc gatherings of government employees.” The creation of a governmental body is not triggered merely by "any deliberate meetings involving governmental business between two or more officials." For example, the Court noted that a meeting between a department head and the entire department staff was not covered by the Open Meetings Law. Moreover, the fact that an entity calls itself a committee, keeps minutes, records attendance, and records votes is informative with respect to the determination of a governmental body, but not dispositive. Given the Supreme Court’s ruling, it is imperative for principals to know which committees have been created by school board rule, resolutions, policies and handbooks. In some instances, it will be easy to determine whether a group or committee is subject to the Open Meetings Law; for example, when a board has specifically delegated a task, and a process for that task, to the committee. A recent caller to the AWSA Hotline questioned whether a standing athletic committee consisting of administrators, staff and community members was subject to the Open Meetings Law, given the recent Supreme Court ruling. The committee did not make or change policy but did make recommendations to the school board. When the caller dug a little deeper, she found the board policy relating to the committee, which specifically stated that the general public would be notified of the meeting times, and that any parent, student or staff member is welcome to attend. This is a clear example of a committee that is subject to the Open Meetings Law. Other situations may not be as clear. Principals are advised to ascertain whether any committee of which they are a member has been established by board policy; and then to review that policy. If there is no board policy, check the employee handbook. If there is still nothing to aid your decision-making, given the newness of the Supreme Court’s interpretation of the Open Meetings Law, review the situation with your superintendent for guidance. This article was written by Attorney Malina Piontek, AWSA’s Level I Legal Services Provider. You may direct your Level I call-in questions to Malina at 608-497-3037. You may email her at [email protected]. The views expressed herein are exclusively those of Ms. Piontek. This article was designed to provide you with general authoritative information and with commentary as a service to AWSA members. It should not be relied upon as legal advice. You are encouraged to contact your district legal counsel should you require legal advice regarding this topic.
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