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 in Missouri, including fire districts. Its basic intent is clear in the following passage: “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 below), district officials should make sure to conduct business in public.
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. This free publication can be downloaded from the AGO website at http://ago.mo.gov/sunshinelaw, or call 573-751-3321 to request a printed copy. In addition, a sample Sunshine Law policy for fire districts is available from the forms library of the members-only section of the Missouri Association of Fire Protection Districts website, http://mafpd.org. The AGO will also provide training on the Sunshine Law.
Special fire district rules
Two provisions unique to FPDs modify some requirements of the state’s Sunshine Law. One statute requires that notice of regular public meetings be posted at each fire station, not merely at the FPD headquarters, as the Sunshine Law requires. It also says that notice of regular meetings must be posted continuously, not merely 24 hours before the meeting (321.200). 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, whereas the FPD law requires the minutes to be prepared within seven days of the meeting.) Both of these requirements go beyond the Sunshine Law requirements, and a prudent FPD will fulfill these additional legal requirements.
Notice of meetings
A fire protection district board must meet at least monthly at a location it designates (321.200). 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.
Only two kinds of meetings are possible: open or closed. A long list of authorizations for specific closings contains only a few that might apply to the fire districts. In these instances, meetings may be, but do not have to be, closed:
- Legal actions, but only if the district is suing or being sued [610.021(1)];
- Real estate transactions where public knowledge could affect the price [610.021(2)];
- 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(3)];
- During a bid call when specifications are being prepared [610.021(11)], 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(12)];
- Preparations for contract negotiations may be closed if district employees are organized to collectively bargain [610.021(9)]; and
- Pre- and post-audit conferences may be closed [610.021(17)]
To hold a closed meeting, the board must vote in an open meeting to close a future meeting for one of the specific authorized purposes. Notice must be given, with citation of the specific section authorizing the closing indicated by number, 24 hours before the closed meeting is held.
Except in an extreme emergency (such as a tornado), the board must give the public 24 hours notice (exclusive of weekends and holidays) of all meetings. This 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 and should always include the phrase “and such other matters as may come before the Board” to cover unanticipated business. 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. 6/7/11.” This is done in case a challenge is made.
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 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, time limits on comments should be set in advance. Remember, the public is not restricted to district citizens. If reporters from The New York Times want to attend an 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 (610.020.7). The record of votes should be by member name. When the agenda is prepared, each item should include 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.” The safest practice is to follow this procedure for every vote.
The same law that requires that most meetings be open to the public 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. If a district wants to have any closed records, it must have a written policy. (A sample policy for this purpose is available from the Member Resources section of the Missouri Association of Fire Protection District’s website, http://mafpd.org, or from the Missouri Attorney General’s website, http://ago.mo.gov/sunshinelaw.)
Every public governmental body must formally designate a custodian of records. For fire protection districts, this should be the secretary, as stated in Chapter V. The secretary/custodian of records’ name and contact information must be publicly posted (610.023).
Requests for records have deadlines for responding (see discussion under Special fire district rules above).
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 (610.021).
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. The FPD board may want its attorney to assist in writing such a policy. Sample resolution language and forms are available on the Attorney General’s Office website, http://ago.mo.gov/sunshinelaw/samples.htm. This page also contains a sample form for requesting records from a governing body.
The district may recover the actual cost of making copies of records. It should be prepared to document these charges. Photocopy cost may not exceed 10 cents per page. The district can require payment of costs before it produces the records (610.026).
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 a fire district 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. If the violation is found to have been purposeful, the fine increases up to $5,000. In addition, the court usually nullifies any decisions made at an improperly closed meeting, which leaves the board with having to conduct the meeting’s business again. If a member objects to closing the meeting, that objection shall 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 this 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.