Wednesday, November 13, 2013

Did Fox C-6 Violate Sunshine Law at Board Workshop?

The Fox C-6 school board held a board workshop on Tuesday November 5, 2013. There were only 3 people in attendance at the meeting besides the board members and school administrators. It was an interesting meeting as Superintendent Critchlow used the opportunity to "go on record" stating all of the things that she says she does that she doesn't really do with regards to responding to people that speak during Public Comments. I should know as I've spoken at several board meetings over the past 3 years and it has been extremely rare that I have received feedback and that feedback was not from the board.

Why won't the school board respond to questions that can only be answered by the board?

Below is one of the statements Superintendent Critchlow made at the board workshop which simply isn't true with regards to her stating that she has gotten back to "every single person that's made a comment has received feedback". Maybe she considers a glaring look "feedback".

Numerous times over the past 3 years I had to email the board weeks after speaking at board meetings asking for a response from the board. My emails quoted board Policy #0403 which states that the board will respond to all public comments within a week. On occasion I received an email response from Superintendent Critchlow with a reply to some of my questions while other questions were simply ignored. The short of it being that her statement below about getting back to every single person is False. However, her statement that she probably failed to tell the board is True. Cheryl Herman spoke about not knowing if the district ever responded to people during the workshop.

"I can go on record saying that every single person that's made a comment has received feedback. It may not always be the feedback they want to hear. ... But, never is there a public comment, unless they're really just not asking anything and just stating a comment. But, if they ever want answers, they get them! We have a policy that says we'll get back to them within a week. The only thing that we probably fail to do all the time is to tell you."
The most important thing you need to know right now about the board workshop meeting is that in my opinion, our school board violated Missouri Sunshine Law by taking an open meeting agenda item discussion on "Board Meetings" into closed session.

School district attorney Ernie Trakas was one of the 3 people in attendance at the meeting. Early in the meeting he spoke to the board about why they shouldn't have open discussion sessions with the public prior to board meetings like I suggested they do a couple of months ago. They do this now at Rockwood. You can hear Superintendent Critchlow mention that I suggested this idea to the board in the audio below.

Mr. Trakas's main concern on that topic was that there would be no contemporaneous record of the open discussion and that "it could lead to very interesting publicity". There would be a "contemporaneous record" if our school board meetings were video or audio recorded. This is why I record all meetings that I attend so there is an accurate record of what was said at the meeting since Mr. Trakas alluded to the problem of accuracy. This is why Fox should record all meetings like they do in other districts and Fox used to do in the past. I believe meetings aren't recorded anymore to allow our administrators the freedom to deny what was said in the board meeting as Superintendent Critchlow did in March 2012 about posting the board policies on the district website. Once I emailed her what she said at the meeting, she posted the updated board policies on the district website as she said she would at the board meeting.

So, did Mr. Trakas help our school board violate Missouri Sunshine Law?

He told Superintendent Critchlow and the board that "If we're going to discuss this, it needs to be discussed in Closed Session." after Superintendent Critchlow asked Mr. Trakas to respond to board president Dan Smith's idea about responding to the public at the next board meeting with answers from questions from the previous board meeting. NOTE: The board doesn't respond to Public Comments at board meetings.

Dan Smith tossed out this idea right after Superintendent Critchlow had just finished telling the board and those in attendance, that she's always responded to all public comments with feedback. She said that maybe the public just didn't like the feedback that they were given as to why the public asked the questions again and again. Critchlow even mentioned the board Policy 0403 that I have quoted many times in my emails to the board asking for answers weeks after making public comments. Board Policy 0403 states that the board will respond to all public comments within a week. That doesn't happen. I've brought this to their attention many times because I've never received a response from the board. I've only received responses from Superintendent Critchlow or one of the other administrators even though my questions were directed to the board.

Below is the audio recording and transcription from my audio recording of the November 5th board workshop when district attorney Ernie Trakas tells Superintendent Critchlow and the board that if they are going to discuss responding to the public at a board meeting that they need to discuss that in Closed Session.

According to Missouri Sunshine Law, Closed Meetings are only used to discuss issues such as Litigation, Personnel matters and Real Estate transactions. According to Missouri Sunshine law Section 610.022.3 requires that the meeting be closed only to the extent necessary to discuss the specific announced exception. No other business should be discussed during the closed meeting. The discussion of board meetings which includes the topic of responding to the public was listed under the board workshop agenda as part of the Open Meeting.

The only items listed on the board workshop agenda for Closed Sessions were 610.021.1 Litigation, 610.021.3 Personnel, 610.021.9 Negotiations and 610.021.13 Personnel Records. Therefore, I believe that Fox violated Missouri Sunshine Law by taking what was being discussed in the public into Closed Session.

Public Discussion Taken To Closed Session
Here is a transcribed portion of the audio leading up to board president Dan Smith adjourning the meeting to closed session after he suggested giving responses to the public at the next board meeting:

Board President Dan Smith 
"Here's an idea, I'm just gonna throw this out. What if at the next board meeting we give a response after one of the administrators has had some time to research the question, gotten the information, gotten the answers maybe it's been run through, then we can give the public some answers."
Superintendent Critchlow 
"From the previous one?"
Board President Dan Smith 
"From the previous meeting."
Superintendent Critchlow 
"Oh! (surprised response followed by a long pause) Ernie?" (nervous laughter)
Ernie Trakas (School district attorney)
"You're now, um, in my opinion anyway, if we're going to discuss this, it needs to be discussed in Closed Session."
Board President Dan Smith 
"Alright. Alright. Then I make a motion to adjourn."
At this point the board adjourned to Closed Session after Mr. Smith was told by the board secretary to read the agenda items for Closed Session. Discussing board meetings was not on the list of items to be discussed in Closed Session.

So, what reason did the attorney have for taking the Open Meeting discussion about Board Meetings into closed session?

It seems very clear from Mr. Trakas's statement, that he felt that the topic that Mr. Smith just brought up, needed "to be discussed in Closed Session" and that would violate Missouri Sunshine Law. The district attorney was responding to Superintendent Critchlow's request for counsel on Mr. Smith's statement on responding to the public at the next board meeting.

At the beginning of the board workshop, the district attorney expressed his concerns to the board about having open discussions with the public prior to board meetings. I want to commend board members Steve Holloway, John Laughlin and Cheryl Herman who all expressed their desire for wanting to speak and meet with the public prior to board meetings which I will cover in more detail in another article. It's important for the public to know what the school district attorney's opinion is on having listening sessions for the public with the board.

Early in the meeting, board president Dan Smith asked the Fox C-6 legal counsel Ernie Trakas for his input about the open session discussions prior to board meetings. Here is what Mr. Trakas had to say on that subject.

"And I'm going to speak candidly. That is what I would hope you expect. In my opinion, there's no upside to this. For perhaps 3 or 4 reasons. 
Your policy already provides an ample and sufficiently comprehensive and coordinated method for Public Comment. 
This board listening period, inevitably is going to be monopolized by a handful of people, almost every time. So that means that your goal, which is admirable, will never be accomplished. One, two, three people will constantly buttonhole board members and will turn it into what I believe ultimately will be a gripe session. 
Most important! 
Third and most important to me, the absence of a contemporaneous record poses significant problems. Not so much what you relate but what the person you spoke with relates to others in the media what you said. I guarantee you as I'm standing here tonight. It will never be accurate. So, for those reasons, I just don't see an upside to it. Um. Whatever another school district may do, good for them. But, um, for my money, the downside risk far outweighs any upside gain. 
Look, if nothing else, it's certainly going to um, it certainly has the potential for interesting publicity. Um. If not flat out inaccurate because there's an absence of a contemporaneous record. There's also no opportunity for you as a board member for any type of input from the administration for background or other information that may be important for you to understand what it is this person's talking about. So for all those reasons I just don't see it as a good idea."