SUNSHINE WEEK – GUEST COLUMN
Should Aranibar and Carpenter Attend Upcoming Collective Bargaining Executive Session?
School Board Chairman Harry Kinnan has called the School Board to meet in Executive Session concerning “Collective Bargaining” on Monday, March 19, 2012. Two Board members (Julie Aranibar and Karen Carpenter) have expressed reluctance to attend such sessions and they share with others a concern that the Board’s past practices in similar Executive Sessions may have made them parties to non-compliance with our Sunshine laws.
Should Aranibar and Carpenter attend this announced Collective Bargaining Executive Session?
Concern for non-compliance arises from the limited nature of the Sunshine law Collective Bargaining exemption (F.S. 447.605(1)) which provides that only “discussions . .. relative to collective bargaining” and only those between “the chief executive officer (superintendent) . . . or his or her representative, and the legislative body (the school board) . . shall be closed and exempt from the provisions of s. 286.011.”
“Collective Bargaining Executive Sessions” are sometimes called “dark sessions” because they are held outside the “Sunshine” and – unlike “Shade sessions” concerning litigation – no record or transcript of the meeting is required to be made. “Shade sessions” are exempted from the general Sunshine law requirements by s. 286.011(8).
“Dark Executive Sessions” are more vulnerable to abuse and post-meeting contention than “Shade Executive Sessions” because no record of the proceedings is required to be made and thus no independent record available to later settle disputes as to what actually transpired during the Executive Session. Absent an independent record, neither the Board nor the public can corroborate that the “Dark Executive Session” was conducted (or not conducted) in accordance with law. The importance of this is that if the “Dark Executive Session” is not conducted in accordance with law – for instance if the Session wandered away from just discussing collective bargaining – the “Executive Session” loses its exemption from meeting outside the Sunshine and those Board Members there and then are violating the law and subject to criminal penalties. (This may have been the case with a February 27, 2012 Executive Session on Collective Bargaining when apparently the Board members present discussed and made decisions regarding non-collective bargaining employees.)
Collective Bargaining (“Dark”) Executive Sessions are also significantly different form Litigation (“Shade”) Executive Sessions because the “Shade” – unlike the “Dark” – exemption law requires prior public notice be given of the names of persons attending the Executive Session. Having this prior notice allows Board members and the public to object if someone not authorized by statute has been invited to attend and further allows Board members to decline attendance if their objection is not obliged. This is important because if an unauthorized person attends an Executive Session, the “Executive Session” loses its exemption from meeting outside the Sunshine and those Board Members there and then again are violating the law and subject to criminal penalties. (This may have been the case with a March 14, 2011, Executive Session on Collective Bargaining when Board Members unexpectedly found an insurance consultant present at the meeting.)
Our community and state would be well served if our Legislature aligned F.S. 447.605(1) with F.S. 286.011(8) so that compliance with litigation and collective bargaining exemptions would be the same. However, until the Legislature makes those changes, our School Board, beginning now, can improve district operations by implementing the following two protocols as its practice, and eventually adopt them as formal policies:
(1) At least three days before any Collective Bargaining Executive Session, notify all board members and the public of the names of invitees to the Executive Session .
(2) Audio or video record all Collective Bargaining Executive Sessions with all persons in attendance announcing their names. While the Collective Bargaining Sunshine exemption (F.S. 447.605(1)) does not allow for a Court Reporter to be present during its Executive Session, this does not preclude the Board from recording the session provided the recorder is operated by a person authorized to attend the session. Upon completion of the Collective Bargaining, a transcript of the Executive Session should be made and placed on the District’s website as the Board is now doing with transcripts of Executive Sessions regarding litigation.
These protocols for Collective Bargaining Executive Sessions provide protections from abuse for both School Board members and the public.
Without these protocols employed, I can appreciate why the Aranibar and Carpenter might feel that they, as well as the public, remain vulnerable to abuse.
With these proposals employed, Aranibar and Carpenter should feel as comfortable attending Collective Bargaining Executive Sessions as they would attending Litigation Executive Sessions.
And with these protocols employed, the public – appropriately this Sunshine Week – should thank the school board for providing more Sunshine on the how the public’s business is being conducted.
Dave “Watchdog” Miner
Bradenton Attorney and Member of the
First Amendment Foundation Sunshine Brigade
Dave “Watchdog” Miner hereby grants to the recipient a non-exclusive right to publish and republish this writing in any chosen format.