Rules for Missouri Ambulance Districts
IX. Meetings, Records and Votes
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 ADs. 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), AD officials should make sure to conduct business in public. Actions taken in violation of the law can be invalidated by a reviewing court. One violation by a county prosecutor resulted in more than $39,000 in fines and attorney fees.
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 AD rule
One provision unique to ADs modifies a requirement of the state’s Sunshine Law. The statute (190.075) requires that the “board shall provide for the proper and safe keeping of its permanent records and for the recording of the corporate action of the district. Such books and records shall be made available for inspection by any member of the board upon request by the board member.” (The Sunshine Law requires that records be provided within 72 hours after they are prepared, but allows unspecified delays before they are prepared, whereas the AD law does not say how quickly the records are to be made available.) One interpretation of “upon request” might be that records should be made available to a board member without any delay, which would go beyond the Sunshine Law requirement. Regardless, it would be prudent to make any requested records available to an AD board member as soon as possible.
Notice of meetings
An AD board should meet at least monthly at a building designated by the board that is preferably within the AD. Notice of when and where regular meetings are to be held should be posted continuously at each station. 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.
Closed meetings
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 ADs. In these instances, meetings may be, but do not have to be, closed:
- Legal actions, but only if the AD is suing or being sued, or if there is a likelihood of legal action that the AD is trying to avoid (610.021[1]);
- Real estate transactions where public knowledge could affect the price (610.021[2]);
- Hiring, firing, promoting or disciplining of individual 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]);
- Preparations for contract negotiations may be closed if AD employees are organized to collectively bargain (610.021[9]);
- 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]);
- Discussions of a negotiated contract until the contract is signed may be a matter for closed session (610.021[12])
- Personnel reviews and performance ratings may be discussed in closed session (610.021[13]);
- 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 meeting for one of the specific authorized purposes (610.022.1). Notice must be given 24 hours before the closed meeting is held (610.020.2) with the specific reason or citation of the specific section authorizing the closing indicated by the number from the statute (610.022.1).
Every vote concerning going into closed session must be done by roll call, and all votes within a closed session must be done by roll call, even simple procedural motions such as adjournment. (610.015 and 610.022)
Open meetings
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 must 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 4:30 p.m. 6/7/20.”
Public participation
The public is allowed to attend meetings. Remember, the public is not restricted to AD citizens. If reporters from The New York Times want to attend an open AD board meeting, they may do so. The public is 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 concerned citizens all wanting to make a point. If public attendees are permitted to speak at meetings, it might be a good idea to set time limits on comments in advance.
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 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. 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 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.
Minutes can be corrected any time after having been approved, if the existence of an error or omission becomes reasonably certain. A director may propose a correction to the minutes even though not present at the meeting in question.
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 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.
Records
The same law that requires most meetings be open to the public (610.022.5) also requires that records of the AD be open to the public, unless the AD board has adopted a written policy to keep certain records closed (610.028.1). If an AD wants to have any closed records, it must have a written policy.
Every public governmental body must formally designate a custodian of records. For ADs, 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 AD 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 ADs, the AD board may want its attorney to assist in writing such a policy.
Copies
The AD 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 paper copy. Average cost of clerical staff time may also be charged. A reasonable rate should be determined and established in advance if it is to be collected (610.026). The AD 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 an AD 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 an AD board 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).
Advice
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.