Recently, the board of the Advocates for Arts-based Education (AABE), the non-profit corporation that operates the charter school formerly-known-as Lusher, voted unanimously to change the name of the school. This decision to break with tradition and start a new chapter was roundly celebrated by many in the community, including current students and alumni, teachers, staff, and parents. My wife and I are new to the school — our oldest daughter started kindergarten there in August — but others have been advocating for this change for decades. The victory is well-deserved.
Aside from the victory, it’s also important to note what happened immediately prior to the board’s historic vote: nearly 90 minutes of public silence.
Louisiana has a robust open meetings law for public bodies, including nonprofit organizations performing government functions like public education. In enacting this law, the legislature emphasized that, “It is essential to the maintenance of a democratic society that public business be performed in an open and public manner and that the citizens be advised of and aware of…the deliberations and decisions that go into the making of public policy.” There are exceptions when a public body may go into a closed or “executive” session, but these are narrow and typically focus on specific litigation or individual personnel and privacy issues.
In providing a justification for the closed session at the board’s Sept. 30 meeting, Lusher’s counsel simply said that it is “permissible …to have an executive session in order to receive advice of legal counsel under the protection of the attorney-client privilege.” However, the real reason for the executive session was to receive advice pertaining to general process and procedure on a policy decision. Without more, closing a meeting to discuss process and procedure suggests that the board views the public itself as an adverse party.
Unlike Louisiana’s Open Meetings Law, attorney-client privilege is construed broadly in favor of non-disclosure. The purpose of attorney-client privilege is to ensure confidentiality — primarily with respect to persons or parties whose interests are harmful to the client’s. This is why legal advice about specific matters pertaining to litigation is an allowable use of a closed meeting. But the session must follow notice as described in the statute.
If the Open Meetings Law, which must be interpreted in favor of openness, includes a general exception for attorney-client privilege — which is interpreted in favor of confidentiality — then nearly every substantive discussion involving questions of “process or procedure” can be held in private. In fact, any controversial process issues should, arguably, be discussed in private so as not to waive the right to claim privilege in the future.
We do not have to mistrust public board members, who are often our friends and neighbors, to still be deeply concerned about such an expansive view of the law. It’s very hard for volunteer board members to choose the democratic principle of open meetings over the sometimes-ominous claim of “preserving attorney-client privilege.” And it’s even harder for those volunteers to vote decisively against their well-intentioned colleagues whenever the question is put before them. Regardless, this letter is not addressed to Lusher’s board, but rather to all those members of the public who volunteer now or who will volunteer on public boards in the State of Louisiana in the future.
I have served on several public boards and voted to move into executive session. I understand the desire to have difficult or contentious policy discussions off the record. I understand why board members may feel that a private conversation can be both more honest and more earnest. And I understand why a board member’s good intentions coupled with a thumbs up from the general counsel may feel like enough to close a meeting to the public. But whether a meeting technically can be closed to the public is a very different question from whether a particular discussion should be closed. Lusher’s board meeting is a recent, high-profile example of why our state’s Open Meetings Law was written. It’s an example of why the legislature wants it construed liberally in favor of the public and why the law’s exceptions are narrow.
As a legal matter, I challenge the Lusher counsel’s view that Louisiana law allows for a public body to move into a closed session simply to receive and discuss the advice of legal counsel. But my thoughts are irrelevant here; and this isn’t really a legal question anyway. It’s a question of judgment for the volunteer leaders in our community. A corporate attorney provides counsel, but public board members must decide what best serves the interests of the public body and the larger public they represent. More importantly, during a closed session, it is the responsibility of the chair, not the counsel, to ensure that discussions remain narrowly focused and that any board deliberation happens in public.
In the end, Lusher’s board returned to the public session and voted on a specific process for moving forward without any deliberation. Either the board had no deliberation at all, or that deliberation happened during the closed session. Either explanation is disappointing.
However, this is not a complaint about the past, but an appeal for the future.
Several students ranging from fifth grade through high school participated in the board meeting. Surely, they were listening for the board’s deliberation; but they were also prepared to offer public comments. Today’s students are the ones who will be responsible — as the Open Meetings Law puts it — for “the maintenance of a democratic society.” I hope they will retain the energy, the intelligence, and the confidence that they publicly displayed loudly and clearly for all us adults to hear.
Casius Pealer is an attorney and the Shane Professor of Practice in Real Estate at Tulane University, whose prior professional clients include local public agencies across the country. He is also the vice chair of Next City, a nonprofit organization focused on solutions journalism.