South Whidbey school leadership letter runs afoul of state law

Published 2:35 pm Friday, February 13, 2015

In trying to swear its commitment to transparency with a recent letter to the editor, the South Whidbey school board may have inadvertently broken state sunshine laws.

The letter, which ran in the Feb. 7 edition of The Record, was in response to recent coverage about a new board policy to post online the identities of people who make records requests. It was signed by the district’s superintendent and all five school board members.

The problem is the letter was created and approved outside of an open public meeting. It was penned by Superintendent Jo Moccia with two other board members, then emailed to the remaining three directors who agreed to add their names to the letter.

According to Nancy Krier, that constitutes what’s called “action” through polling and is a violation of the state Open Public Meetings Act.

Polling is when a direction or decision is reached by contacting individual members of an elected body outside of a public meeting. It can be done by email, telephone, text message or with in-person visits.

State law makes it clear there are few avenues that can be taken when it comes to action. They are largely making decisions at a public meeting or, in cases where a meeting can’t be called because of timely matters, that policies be established that empower an agency official, such as a director or superintendent, to make decisions.

“You have to make your decisions in open session, or you delegate it,” Krier said.

Moccia claims it was not polling, that the draft was sent to the other three directors asking if they wanted to add their names to the letter. It did not specifically request their approval, she said.

Also, she says they signed their names as individuals and not as a collective board.

“They didn’t take any action,” Moccia said. “They simply indicated they would sign a letter.”

“I would not call it polling,” she said.

Krier acknowledged this is the first time she’s heard such an explanation, and it raised several questions. For one, if members weren’t acting as a “board” but as individuals, does the context of the letter, which testified to the board’s and the district’s commitment to open public records, make a difference? Also, if they were signing as individuals, then why did a paid public servant assist with the drafting and later submit the letter?

Ultimately, such considerations do matter, Krier said. This wasn’t five individuals sending five different letters; it was the entire board signing onto one letter that specifically addressed a school board policy, and with the help of the superintendent.

“The content talks about ‘we’… it’s the board talking about the board,” said Krier, who reviewed the letter online before commenting.

This may be a new argument, but action is broadly defined and Krier said she believes the circumstances constitute a consensus.

“This is the kind of thing they need to do in an open public meeting,” Krier said.

School board director Rocco Gianni, one of those who was forwarded the letter, said the board wasn’t trying to dodge state sunshine laws. It was simply trying to respond to coverage in a timely manner.

“There was no intent to do something wrong,” Gianni said.

He added that some state transparency rules are “onerous and ludicrous” when it comes to the difficulty they place on public agencies that have to make decisions in a timely fashion.

Krier said it doesn’t appear that the board was acting with nefarious intent, rather that this was an inadvertent mistake. It should be considered an “educational” moment for the district, she said.

“It’s not the biggest thing out there, but it’s a gentle reminder of how the act comes to bear,” Krier said.