Crisis Management: “Shaken – Not Stirred …The Day the Open Meetings Act Collided with a 7.0 Earthquake”
By John M. Sedor of Sedor, Wendlandt, Evans & Filippi, LLC
Part four of a series on Interacting with the Outside World – School District Style.
You are school board president enjoying a good cup of coffee from Kaladi Brothers on a recent Friday morning. You are reflecting on all you learned at the AASB Annual Conference a few weeks earlier. You are about to sit down for an 8:30 a.m. meeting with the Superintendent to plan the next agenda and implementation of the Board’s strategic plan. Even with all the challenges Alaska faces, you are optimistic on the future of education.
As you sit down, you smile and say to the Superintendent “Let’s Rock and Roll on this agenda.” … And then you do! What was once the solid world of floors, walls, and windows around you … becomes oddly fluid. You realize you are on the floor … and you don’t know if it was a conscious decision or not. It’s a 7.0 magnitude earthquake with an epicenter less than 8 miles away. Then it stops – sort of. You collect yourself and, shockingly, find that good cup of Kaladi Coffee undisturbed. All is well. You are thankful.
[The story above is a work of fiction. Any similarity with real life in Anchorage, Alaska on November 30, 2018 is purely coincidental. 😊]
Slowly, and then faster and faster, you realize that the shaker did not hit just your office. Texts begin pouring in to your phone and the Superintendent’s. Texts from family, friends, newspaper reporters and … school principals. The latter are reporting damage to school buildings. More troubling, these school reports are not just reporting damage that occurred but damage that continues to occur. Water pipes have burst and flooding is becoming a significant issue.
While the Superintendent begins implementing the Earthquake Emergency Plan, you realize that the Board has a number of decisions to make and those decisions need to be made quickly. As the Board Secretary crawls out from under the desk you ask that a Special Meeting be posted – and quickly. The Special Meeting is posted … for 3 days later in order to comply with the Board Bylaw that requires 72 hours posting for a Special Meeting. It would really be good if you could meet sooner in these unusual circumstances but, the law is the law. The list of issues and questions the District administration needs board input and guidance on is growing by the minute.
Can anything be done?
Yes. The Open Meetings Act (OMA) requires that “reasonable notice” be given for all school board meetings. AS 44.62.310 (e). That phrase – “reasonable notice” – was interpreted by those who drafted your bylaws to mean, in this case, 72 hours. In other words, someone, long ago, decided that “reasonable” for a special meaning meant 72 hours. This interpretation remains subject to the OMA. Thus, in a 1980 case (Tunley) involving the Anchorage School District, the District provided 5-days’ notice of a special meeting to consider closing a school. The Alaska Supreme Court found that 5-day notice was not “reasonable” where the issue to be considered was as substantial as closing a school. The converse would also be true: “reasonable” is a concept that is molded by the totality of the circumstances. Where a natural disaster requires immediate decision-making (especially if necessary to address immediate student needs or minimize facility damage), “reasonable” could mean far more quickly than the specific timeframe provided by the by-law drafters long ago.
A couple of practice pointers; If a meeting is called more quickly than the time provided by your by-laws, the board should still notice the meeting in the same manner in which it normally provides notice for meetings (AS 44.62.310(e)). In addition, the by-law providing the 72-hour notice can be suspended and this should be addressed at the beginning of the Special Meeting. Finally, the OMA has internal flexibility that can benefit the “quick” meeting decision in this case. First, the board can address the scheduling of the special meeting at a subsequent meeting. This consideration at a subsequent meeting can actually cure any real or perceived OMA violation. AS 44.62.310(f). In addition, even if the “quick” meeting is challenged in court, the Court is required to apply a balancing test of several factors that seek to determine if the Board is in good faith. AS 44.62.310(f)((1)-(9). Substantially, these factors help the court determine if the action of the board was “reasonable” – the very concept used by the board in giving its notice.
As our hypothetical board member learned during the earthquake, things – like walls – that seemed solid and unmovable were more flexible than originally believed. So is the Open Meetings Act and while using the flexibility of the OMA should be done sparingly and cautiously, certain events – such as an earthquake or other natural disaster – would qualify for this special consideration.
Read the entire series on Interacting with the Outside World – School District Style:
Part one: Panic is not a Plan – Crisis Communications for School Districts by Clint Campion
Part two: Crisis Management: The Case of the Bickering Parents by Lea Filippi
Part three: Crisis Management: The Case of the Aggressive OCS Investigator by Allen Clendaniel
More from Sedor, Wendlandt, Evans & Filippi, LLC:
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The views expressed here are the writer’s and are not necessarily endorsed by the Association of Alaska School Boards. AASB welcomes diverse perspectives and civil discourse. To submit a Guest Column for consideration, see our Guest Column Guidelines and email your 400-1000 word submission HERE.