Sunshine at the schoolhouse gates?
With public funds and private lobbying aims, state school board associations are the focus of a nationwide transparency debate
Here’s a riddle for the nation’s courts: What do you call a publicly funded lobbying organization that seeks exemption from open records laws?
The answer is a school board association, an advocacy organization whose purpose — whether on a state or national level — is to represent the interests of school administrators.
The question both student and professional journalists would like answered, however, is to which laws these quasi-governmental bodies must answer.
The associations often do not view themselves as public agencies, so why should they be confined by the transparency regulations imposed upon such entities?
“Really, what we are is we’re a primary advocate for outstanding public education for all Iowa students,” said Marti Kline, a spokeswoman for the Iowa Association of School Boards.
Because of recent changes to state law, that organization does operate under the same disclosure requirements as other public organizations, “even though we really are not,” Kline said.
But if an association receives public funds, however large or small, should it then follow that they are subject to public disclosure regulations?
“If it were Shell Oil Company who sells gas, just hypothetically, if they sell gas to school buses, they’re providing a service,” said Molly Spearman, executive director of the South Carolina Association of School Administrators. “If you go on the grounds that just because you get state money, then you have to be FOI-able, then that means there are a lot of businesses that are.”
Recent court decisions and legislative battles have outlined a murky forecast for the applicability of sunshine laws to state school board associations. Actions in Iowa, as well as South Carolina and New Jersey, have muddied the waters when it comes to just how transparent these organizations are required to be and whether they do, indeed, qualify as public entities.
Sun shines on scandal
In Iowa, the state school board association has been included in open records and meetings requirements for two years, but it made news recently when financial foibles by its upper management became public.
The Iowa Association of School Boards’ financial mismanagement spurred the introduction of House File 645, which incorporated an earlier Senate bill, in the state Legislature. The bill was designed to require school-related associations to make their financial records public and require them to abide by the state’s open meetings law.
The bill was also an attempt to broaden the regulations IASB has followed since 2010 to cover other public lobbying agents, such as the School Administrators of Iowa, which represents principals statewide.
The school board association came under fire in March 2010 when reports of inflated salaries for its top executives came to light, including more than $350,000 to its then executive director, according to the Des Moines Register.
Along with financial reforms for the association, House File 645 had much to say about transparency, for all similar organizations.
The bill would have required these entities to post on their websites: a list of the school districts that pay fees or dues to the association and the amounts paid; the total revenue the organization receives from the school district, and the net profit made from products sold to the district by the association; accounting of reimbursements and expenses paid to the ten highest paid employees; and a list of all reimbursements and expenses paid to legislators and lobbyists.
Gov. Terry Branstad vetoed the parts of the House bill pertaining to disclosure in July, saying the language was overly broad and could have unintended consequences on other non-public entities.
In its advocacy role, the IASB provides services for its “school-board teams,” including programs in board development and school financial services; conferences for board secretaries and business managers; policy and legal services; legislature lobbying for educational issues; and year-round training opportunities.
Funding for this mission stems mostly from partnership with business services, Kline said. For example, a construction firm that provides low-cost counsel on architecture and construction planning will pay the IASB a certain portion of the profits for any jobs they contract with schools.
Yet, around 17 percent of the association’s funding comes from member dues paid by school boards.
Though the IASB does not consider itself a public body, the organization has had no problems working under the sunshine regulations, Kline said.
A courtroom challenge
A South Carolina judge agreed in August that school board associations do not fall under purview of the state Freedom of Information Act.
In that state, a radio talk-show host, Rocky “Rocky D” Disabato, had requested documents from the South Carolina Association of School Administrators. The documents in question referred to a debate over federal stimulus funds in the 2009 American Recovery and Reinvestment Act.
When the association refused to hand over the information, Disabato sued.
Circuit Judge G. Thomas Cooper Jr. granted on Aug. 15 the association’s motion to dismiss Disabato’s request. While SCASA is partially funded by taxpayers and would fall under FOIA’s definition of a public body, it is first and foremost a corporation that engages in “core political speech and issue advocacy,” Cooper ruled.
“A State ‘cannot foreclose the exercise of constitutional rights by mere labels.’ ... However by pinning the label of ‘public body’ onto corporations like SCASA engaging in issue advocacy and political speech this is precisely the effect of the FOIA,” the ruling reads.
Essentially Cooper ruled the public’s right to know is outweighed by SCASA members’ First Amendment rights not to speak publicly.
SCASA funding comes from three principal sources, Spearman said. Along with professional development fees and business support, membership fees paid by school administrators pay for the association’s lobbying and training mission.
However, many members, from both public and private schools, do pay their membership fees out of pocket, Spearman said.
“Our members, those school leaders, do have a right to associate and they do have a right to meet and form their own political views,” she said. “And they also have a right to discuss policies that are important to them and develop those, and because of that right to meet and speak out, they are not under the FOIA request.”
Disabato’s attorneys are appealing the case to the South Carolina Supreme Court.
Light at the end of the tunnel
Bright news for transparency advocates emerged from New Jersey this fall. The state Supreme Court ruled Sept. 20 that the New Jersey State League of Municipalities — a nonprofit that represents the state’s 566 municipalities — was subject to open records law.
The league meets the definition of a public agency under the state’s Open Public Records Act, the 6-0 decision held. In part that decision stems from the fact that 16 percent of the league’s budget comes from taxpayer funds via membership fees from each municipality, according to the ruling.
In this instance, the judge ruled, the organization was an extension of the governmental bodies that comprised it, despite being a corporate entity.
Though the court did not rule specifically on school associations, the league is of a similar composition to the New Jersey School Boards Association, which bills itself as a “federation of district boards of education.”
By Nicole Hill, SPLC staff writer
reports, Winter 2011-12