Can you explain the laws governing public board disclosures? The Sunshine Law.
The Missouri State Sunshine law was created to force school boards and other public bodies to conduct business in the open. The purpose was to eliminate back room deals and require full disclosure of budgets, discussions, and actions involving taxpayer dollars.
Other states have similar laws, and the Federal government has the Freedom of Information Act. All these laws serve the same basic purpose – keep the workings of public boards and departments in the light. Eliminate the secrets that hide all types of corruption.
Missouri’s intent is clearly stated in Section 610.011 of the Sunshine Law: “It is the public policy of this state that meetings, records, votes, actions, and deliberations of public governmental bodies be open to the public unless otherwise provided by law. Sections 610.010 to 610.200 shall be liberally construed and their exceptions strictly construed to promote this public policy.”
A complete explanation of the Missouri Sunshine law can be found here: http://www.nfoic.org/sites/default/files/Missouri-Sunshine-Law.pdf
One misunderstanding about the law is that certain discussions require secrecy. That is, in fact, completely wrong. Under the law, budgets, discussions, and actions require openness. Under certain circumstances, a board may close the public door, but only for specific discussions or actions. Lawsuits, personnel issues, and real estate discussions can be held in private, although any votes or action must be released to the public.
However, discussions about lawsuits, personnel issues, and real estate do not require a closed meeting. Closing them is allowed primarily as a convenience to board members and protection for employees who might be enduring sensitive or private discussions. Both lawsuits and real estate discussions can be sensitive, too, and that is why they are allowed in a private setting. But boards could conduct all business in open session if they choose; open meetings are the statutory default.
Sunshine privacy was not created to protect criminal or abusive behavior. Nor was it dictated to hide shady business deals, real estate transactions, or questionable legal settlements. Secrecy cannot be invoked to hide embarrassing situations or bad management. It is a clear misuse of Missouri Sunshine laws as a curtain to hide bad organizational behavior.
Crafty boards and attorneys can be Houdini-like in finding escapes from the Sunshine law. One such escape is using client-attorney privilege as a cloak of secrecy. This is a legal step up from state Sunshine laws and involves invoking privilege for any discussions, memorandums, or contracts involving the board’s legal team or teams. Simply, activities between a lawyer and a client are rightfully secret, and longstanding precedent keeps them that way (more on this in a moment). Privilege is a good and necessary legal protection, but it can have powerful implications in the board room.
Client-attorney privilege can be used in a board setting to cloak all manner of abusive, shady, and illegitimate deals. Additionally, unpopular or unsavory investigative reports can be protected if they were produced by a law firm. Privilege even extends to e-mail messages, private meetings, and phone calls that involve a board’s attorney. So, a direct complaint from a board member or a conference call between an attorney and several board members might be kept secret. Embarrassing situations? Bad management decisions? If a board attorney is part of these discussions or copied on an email message, it can be hidden by privilege.
Unlike closed Sunshine law meetings, however, there is no restriction about the subjects discussed or a requirement that privileged information be eventually released to the public. Client-attorney privilege is the perfect Sunshine law companion for corrupt public organizations.
But a transparent board can waive client-attorney privilege. There is absolutely nothing unethical about public boards revealing certain activities or discussions involving their attorney.
Investigative or other reports can be made public if a board decides to do so. In reports that document criminal, abusive, shady, or illegitimate deals, the board should vote to notify proper law enforcement authorities and release findings to the public. Bad behaviors cannot be tolerated and hiding them is tantamount to doing them.