Rules for Missouri Fire Protection Districts - Page 10
Parenthetical numbers in the text refer to sections of the current Revised Statutes of Missouri, abbreviated as RSMo.
The Sunshine Law
The state’s Sunshine Law, also known as the Open Meetings and Records Law, covers all political subdivisions and quasi-governments in Missouri, including FPDs. Its basic intent is clear in the following section: “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” (610.011). The section goes on to instruct courts to liberally interpret openness requirements and strictly limit exceptions. With fines for violations ranging as high as $5,000 per individual plus attorney’s fees (see Challenges and penalties in this chapter), FPD officials should make sure to conduct business in public. One suit involving three alleged violations by a state prosecutor resulted in fines and penalties of $39,000 in 2018.
The Missouri Attorney General’s Office (AGO) publishes a popular Missouri Sunshine Law booklet containing the law, some sample forms and summaries of court opinions and AG opinions interpreting this law. The AGO may also provide training on the Sunshine Law.
Special FPD rules
Two provisions unique to FPDs modify some requirements of the state’s Sunshine Law. One statute (321.200.1) requires that notice of regular public meetings (not an agenda, just a notice) be posted at each fire station, not merely at the FPD headquarters, as the Sunshine Law requires (610.020). It also says that notice of regular meetings must be posted continuously, not merely 24 hours before the meeting. This same law says that minutes of a board meeting must be available within one week after the meeting for any member of the public who requests them. (The Sunshine Law requires that the minutes be provided within 72 hours after they are prepared, but allows unspecified delays before they are prepared.) A prudent FPD will fulfill these additional legal requirements.
Notice of meetings
An FPD board must meet at least monthly at a location within the FPD it designates (321.200.1). Notice of when and where regular meetings are to be held is to be posted continuously at each firehouse. When special meetings are necessary, each board member must be formally notified, preferably by a non-board member to avoid accusations of Sunshine Law violations.
Only two kinds of meetings are possible: open or open with a portion closed. A list of about two dozen authorizations for specific closings contains only a few that might apply to FPDs. In these instances, meetings may be, but do not have to be, closed:
- Legal actions, but only if the FPD is suing or being sued (610.021);
- Real estate transactions where public knowledge could affect the price (610.021);
- Hiring, firing, promoting or disciplining of particular employees where personal information about the employee is either discussed or recorded. Closing the meeting is only allowed when a specific person is being discussed (610.021);
- During a bid call when specifications are being prepared (610.021 ), and when sealed bids are received until the bid opening. Meetings to open bids may be closed until either a contract is awarded or all bids are rejected (610.021);
- Preparations for contract negotiations may be closed if FPD employees are organized to collectively bargain (610.021); and
- Pre- and post-audit conferences may be closed (610.021).
To hold a closed meeting, the board must vote in an open meeting to close a meeting for one of the specific authorized purposes (610.022.1). Notice must be given, with the specific reason or citation of the specific section authorizing the closing indicated by number (610.022.1), 24 hours before the closed meeting is held (610.020.2).
Given the variety of state and federal protections for government employees, it is generally never advisable to discuss personnel matters in public session. Keep in mind, however, the requirements of Section 610.021 that personnel actions must become subject to open record requests within 72 hours, and the affected employee notified promptly before any public access to the information.
Except in an extreme emergency (such as after a tornado), the board must give the public 24-hours notice (exclusive of weekends and holidays) of all meetings. This notice need not be complicated. A regular, easily accessible location needs to be established to post notices. The law says notice must be given “in a manner reasonably calculated to advise the public.” The notice must contain a tentative agenda for the meeting. In case a challenge is made, the board secretary, or whoever posts the notice, should write the time and date of posting on a corner, such as “Posted 4:00 p.m. 6 / 7/14.”
The public is allowed to attend meetings. They are not allowed to participate unless the board chooses to permit this. Whether to permit public participation should be discussed and agreed upon in form of a written policy or standing rule before the board is facing a roomful of angry citizens all wanting to make a complaint. If public attendees are permitted to speak at meetings, it might be a good idea to set time limits on comments in advance. Remember, the public is not restricted to FPD citizens. If reporters from The New York Times want to attend an open FPD board meeting, they may do so.
Minutes and votes
Minutes of open meetings “shall be taken and retained” and must include the date, time, place, members present and a record of votes (610.020). The record of roll call votes should be by member name. When the agenda is prepared, it might be helpful if each item includes board members’ names at the end, such as “Jones ____ , Smith ____, Brown ____,” Then either “yea” or “nay” can be jotted in the blank after the vote. The law states: “When a roll call vote is taken, the minutes shall attribute each ‘yea’ and ‘nay’ vote, or abstinence if not voting, to the name of the individual member of the public governmental body.” (610.015). The safest practice is to follow this procedure for every vote.
Also, the minutes are a record of what was decided at the meeting, not a transcript of what was said at the meeting.
Minutes do not become the minutes and assume their essential status as the official record of the board until approved; however, draft or unapproved minutes are considered a public record and are therefore subject to the Missouri Sunshine Law.
Never erase errors! When the board approves corrections to the already-approved minutes, the error should be bracketed and the correction written above, on the facing page or in a wide margin, and then dated and initialed by both the secretary and the chair. The correction should also be included in the minutes of the meeting where the correction was made.
Minutes can be corrected any time after the minutes have been approved, if the existence of an error or omission becomes reasonably certain, and a director may propose a correction to the minutes even though not present at the meeting in question.
Special rules apply to votes both in and related to closed sessions. All such votes must be taken by roll call and the individual members’ vote recorded. This applies even to what would normally be routine procedural matters like adjournment.
The law provides that video and audio recording of public sessions must be allowed, so long as the same is not disruptive. Recording of closed sessions, however, is prohibited and is actually a criminal offense.
The same law that requires most records be open to the public (610.022.5) also requires that records of the FPD be open to the public, unless the FPD board has adopted a written policy to keep certain records closed (610.028.1). If an FPD wants to have any closed records, it must have a written policy.
Every public governmental body must formally designate a custodian of records. For FPDs, the custodian of records typically might be the secretary, as stated in Chapter V. The custodian of records’ name and contact information must be publicly posted (610.023).
Provided the board has voted to approve a written policy to do so, sealed bids may be kept closed until the opening date. Personnel records beyond name, position, salary and length of service may and should be kept closed (including evaluations, reprimands and sick days used). Again, these records can be kept closed only if the FPD board has voted to approve a written policy to close them (610.028.1).
Policy regarding release of information
The statutes say that every governing body “shall provide a reasonable written policy ... regarding the release of information on any meeting, record or vote” (610.028.2). This policy should also provide guidance on procedures for making a sunshine request and how to handle issues that may arise, including the cost of making copies and public videotaping of meetings. Due to the uniqueness of many FPDs, the FPD board may want its attorney to assist in writing such a policy.
Requests for records have deadlines for responding (see discussion under Special FPD rules in this chapter).
The FPD may recover the actual cost of making copies of records and should be prepared to document these charges. Photocopy cost may not exceed 10 cents per page for regular sized copies. The FPD can require payment of costs before it produces the records (610.026) and may charge average staff time for researching and producing records. A reasonable staff rate should be determined in advance if it is to be collected on future record requests.
Challenges and penalties
Any person can challenge a public, governmental body with violating the state’s open meetings and records laws. Once the challenger demonstrates to a court that the law applies to the body, the governing body must prove it did not violate the requirements.
If an FPD board is found to have improperly closed a meeting, each member who voted to close and who participated in the meeting is subject to a fine of up to $1,000 plus attorney fees for the challenger (610.027.3). If the violation is found to have been purposeful, the fine increases up to $5,000 (610.027.4). In addition, the court may nullify any decisions made at an improperly closed meeting (610.027.5), which leaves the board with having to conduct the meeting’s business again. If a member objects to closing the meeting, that objection needs to be included in the minutes. If that member also votes against closing the meeting, the member has an “absolute defense” against the penalties noted, even if he or she subsequently attends the closed meeting (610.022.6).
The underlying presumption of the Sunshine Law is that the public has a right to watch public business being transacted. This presumption is hardly revolutionary in the United States. Because board decisions affect the public and influence public expenditures, citizens have a right to be concerned.
Whenever possible, make every effort to stress openness. Skeptical Missourians, when convinced no one is trying to hide anything from them, generally lose interest quickly. Operating in secret makes them think the board is hiding something.