Article archive / April 1, 2014
Originally published: . Volume 5, No. 8. Source pages: 11, 12, 13.
SPECIAL REPORT Do the Boards Support “Direct Participation?” What Citizens Should Know by J. Nelson
The larger and more complex government becomes, the less likely the public is to be informed about its decisions or to have any chance of participating in those decisions. The day-to-day tasks of boards are to grant licenses and review complaints about practitioners. Boards also make other decisions that amplify and expand their control. In the Louisiana mental health community we have a number of regulatory boards for mental and behavioral health professionals, charged with being open and transparent as they go about their tasks. But, this is not a given: the board has a good deal of leeway in how it meets its obligations to be open.
For this special report, I’ve reviewed characteristics of some boards in our community. It is only a snapshot, a rough estimate and incomplete. For some boards I have much more experience than with others. And, it was confusing to try and locate postings and it looks like technical problems are often involved, but this is what the average citizen would encounter in trying to follow the breadcrumbs. With all these limitations in mind, I hope the review provides readers some ideas about how to participate in their government.
The Public’s “Right to Direct Participation”
The public’s right to know and participate in government is set forth in the Louisiana Constitution, Article 12, Section 3, “Right to Direct Participation.” The section states, “No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law.”
Two sets of laws put this principle into more specific terms, called the Open Meetings Laws and Public Records Laws. Within these laws there is a good deal of support for citizen rights. A reminder about the spirit of the law is set out:
“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 performance of public officials and the deliberations and decisions that go into the making of public policy. Toward this end, the provisions of this Chapter shall be construed liberally.”
Boards are prohibited in all the ways they could try and avoid public scrutiny, such as “… any manner of proxy voting procedure, secret balloting, or any other means to circumvent the intent of this Chapter.”
While executive sessions are allowed for specific reasons, such as discussions about security issues, on-going investigations, or discussions of character, the law warns that these sessions cannot “… be used as a subterfuge to defeat the purposes of this Chapter.”
Another plus for a citizen who wants to participate is §14. This section tells us that a board “… shall allow a public comment period at any point in the meeting prior to action on an agenda item upon which a vote is to be taken.”
The law makes sure that citizens have prior notice about what the board will discuss in the form of agendas. Unfortunately, a board can change its agenda with as little as 24 hours. However, open meetings law requires that if an issue is taken up by a board not on the agenda, it must be described in “reasonable specificity” in the minutes. “The public body shall not use its authority to take up a matter not on the agenda as a subterfuge to defeat the purposes of this Chapter.”
Another place in the law that supports the spirit of openness and public participation is in the minutes. Minutes must include, “The substance of all matters decided….” Also, the law instructs that minutes “shall be available within a reasonable time after the meeting.”
If a board makes a decision without allowing for direct knowledge and participation, the decision can be voided. However, the citizen must exercise his or her right to void the decision by filing a lawsuit within 60 days.
Public Records Law lists another set of rights. RS 44:31 gives a citizen the right to examine public records, and the records custodian “shall extend to the person all reasonable comfort and the facility for full exercise of the right…” While there are many specific exceptions to what is public, most common sense, the law states that if a question is raised as to whether a record is public or not, the custodian should notify the person about this in three working days. Otherwise, if the record is available and not in use, it is to be “immediately presented…”
So with these powerful laws, the spirit of openness is mandated. In practical terms, it is harder, both for the boards and for citizens. To get a sense of both the letter and the spirit of the law when it comes to our boards, I looked at the following characteristics.
• Notices and agendas
The first hurdle for the citizen is to be informed of what the board is going to discuss. This done through notices and agendas. Are they timely? Are they complete?
• Minutes – Timeliness, substance, and completeness
Are the minutes published quickly? Is the writing complete and does it explain the “substance” of the board’s decisions? Do the authors include sufficient detail for the public to understand and participate?
• Response to informal requests
Does someone at the board respond quickly and in a friendly manner to requests?
• Does the board/committee exhibit an open, participative spirit
While imprecise, I’ve rated the culture of each board by feel. Do they make it easy for someone to ask for information? Are they friendly, open, and supportive?
For this article, I reviewed some boards and committees on March 23, 2014, as a snapshot. I searched different websites. I also sent a pop- test, an email request for the most recent minutes, to see if and how they responded to an inquiry. And, I included some past experiences.
This is a broad brush, I’m sure with some errors, because there is not only a lot of data, but apparent technical issues too. But with that in mind, here’s what I found.
Addictive Disorders Regulatory Authority
The Addictive Disorders board meets six times a year. They post public documents on the Boards & Commissions website (B&C) and the notices for dates of meetings match the posted minutes, and all the minutes are available to download.
The agenda seems a little bit succinct, but adequate for someone who has some background knowledge. A positive is the direct invitation in the agenda for, “Public Introductions and Representation” and “Public Questions or Comments.”
Overall, the minutes are very good, with the “substance” usually made clear. The author explains the discussion well and a reader could follow what was discussed and why, including a train of reasoning. The board’s representative responded the next day to my email request for the most recent minutes, saying that they would be posted soon on the site. The message seemed friendly.
I gave this board good marks, despite my limited contact with them. The minutes showed a sincere attempt to inform people of what the board is working on and why. They directly invite participation in their meeting format. Timeliness is a problem however, because the system for approving minutes and then having them posted, creates a serious delay.
Behavior Analyst Board
The new Behavior Analyst Board seems to post their notices quickly. However, the agenda listed topics but did not give much additional detail. For example, “The Board may discuss policies and procedures” is too board, leaving the public to try and guess what is going to be reviewed. And, the board has ample room to discuss many different topics while adhering to the letter of the law about notices.
The December 2013 minutes are posted. (They meet six times a year.) The minutes themselves seem fairly complete, with a good amount of detail. While there were some gaps where topics were summarized rather than fully explained, most items were detailed and reasonably complete.
The Executive Director responded immediately, within one hour, to a request for most recent minutes, noting that that approved minutes were posted.
The high points for the new BA board are the detailed minutes and quick response from their office to a general, simple question.
Licensed Professional Counselor Board of Examiners
This board meets every other month. They have postings on the B&C website, but these are confusing. Notices don’t regularly include the agendas, some of the dates don’t match, and some dates seem to be missing. So, people need to go to the LPC board website for documents, which is more reliable and consistent for retrieving documents
The most recent minutes on the LPC site were for November 8, 2013. (September on the B&C site.) Agenda topics are listed, but not always much about what or why. An example, “Telephonic Counseling,” is listed in old business. However, the minutes seem complete with fairly good detail. Perhaps there is a little too much jargon for citizens unfamiliar with terms, but for those in the field, the descriptions should work.
I have interacted with the board’s staff on several occasions and they have been open and friendly. Calls were returned quickly by Executive Director (ED) or staff. In the past, the ED has been quite cordial and quickly provided requested public documents without resistance or delay. In the pop-test, she returned the message within two hours.
Overall, the board has an open feel, with adequate minutes and agendas. The quick response regarding public documents was refreshing. Timeliness of posting minutes is a problem. There is a bit of a jumble going on between the two websites, but it can be overcome with persistence on the part of the public.
Louisiana State Board of Examiners of Psychologists
This board meets monthly and appears to post its documents on the B&C website. Not all of the minutes are available.
In regard to the substance of the agendas, they are sketchy. For example, “The Board may discuss continuing education requirements.” The public has very little advance warning about what or why the topic is going to be addressed, or how to guess what decisions might be made.
The January minutes were the most recent posted, so this is a long delay. In respect to the substance of minutes, this is mixed. Some topics are explained in good detail, more so with straightforward and administrative topics. But others lack the “because” or “why” part of substance.
The problem can be seen in this example with a too board agenda item and a narrow description of what and why something was decided. The agenda item posted in advance was, “The Board may discuss issues concerning Continuing Education.” What happened was described in the minutes this way: “Dr. Culross addressed the group about the retention of CE records. The Board discussed the issue carefully. Dr. Culross moved to issue a Board opinion that all psychologists should retain continuing education records or certificates for 6 years. The motion passed by roll call vote …”
In response to the pop-test, the Executive Director responded immediately, within an hour of the request, pointing out that approved minutes were posted.
They list a “Pubic Hour” and at many meetings I’ve attended, the chair has asked for public comments. This should help the people feel invited. Also, has also been a push to hold and invite the public to planning meetings.
However, in a recent communication the board directed that all contacts must go through the board office and questions must be received in the US mail. Also, in requesting public documents in the past, and also currently, the Times has encountered resistance.
The psychology board expresses a mixed culture when it comes to openness. Good efforts to invite the public to its long-range meetings and other formal efforts are commendable. But, the agendas and minutes need to be improved. Access to public documents has been very difficult and in some cases perplexing.
Louisiana State Board of Medical Examiners
The public is directed from the B&C site to the state medical board. However, during most of 2013 the medical board’s minutes were in a muddle, many documents unavailable on either site. This appears to have been corrected with their new website.
The agendas are brief and not completely clear as to what topics will be discussed. The most recent minutes are January 13, 2014, and appear to be mostly complete, with some areas of limited detail. There is no specific notation regarding public input.
The Times’ experience with obtaining documents from the medical board has been mixed. I have had to send certified mail requests in the past to get documents, but at other times the ED has responded quickly. The assistant to the ED responded within two days to the pop test, sending the requested minutes and also indicating that the minutes were posted. (They weren’t, but then she acknowledged this.) Budget information is not posted on the B&C website even though Act 12 of 2009 requires it.
It seems that the medical board is open when it is asked to be, as if it hasn’t occurred to them it is needed. They seem to stick to business, much like the social work board, below.
Louisiana State Board of Social Work Examiners
The LSBSWE posts agendas on its own site, and only 4 are posted on the B&C site. The public might need a link to the board’s site, which is more consistent for retrieving documents.
The agendas list specific topics and seem reasonably detailed and complete.
The minutes are some of the best minutes I found. They give the why and the what of the discussion, and seem to be very complete. The topic, facts, reasoning, and conclusion are included much of the time. A member of the public would be well informed by these reports. The reasons for the Executive Sessions are spelled out in detail. Perhaps supporting this is the specificity of the topics, the Social Work board seems to stay within a well-defined scope of activities.
However, there was no response to the Times’ request for recent minutes. In a previous contact, it required extra requests to get a reply to a general question about the financial data posted on the B&C site.
The culture of this board seems formal and it is difficult to get extra information, but their attention to their minutes and notices is very good. This gives them the feel of a very transparent group. So, while they are not all that open, the public can still get a sense for what is going on and why, even if participation is low.
Marriage and Family Therapy Advisory Committee
The minutes of this committee are included in the body of the LPC board’s minutes, and they track the same timelines. The report is a short narrative summary and seems to include the topics and some of the discussion about why and what is relevant. Because these reviews are rather brief, citizens might have questions about what was decided and why.
In a previous experience with this committee however the Times was encouraged to attend and observe, and the chair was friendly and inviting. The pop-test request for recent minutes was returned by the ED (LPC board) quickly.
The climate of this committee seems open, but they could do better informing the public about their work. However, since this is a committee, they may not have the same duty to report under the law.
Medical Psychology Advisory Committee – State Board of Medical Examiners
This committee falls under the medical board, and so like the marriage and family therapy committee, may not have the same duty to report. And, the medical board only requires that they meet twice a year.
There are no notices posted on the B&C site, and only 6 minutes over 4 years. On the medical board site, they have a page, with postings, but these are jumbled. Only three sets of minutes are available on the medical board site, the most recent August 2011. There are inconsistencies in what is published.
Overall, the agendas are very succinct with little detail. The minutes are also succinct, with little additional detail. It is not clear where meeting notices will be posted on the new website, because it does not have a news page. There was no response to a request for most recent minutes, or to other requests over the years.
Conclusions
The boards each seem to have their own culture, with strengths and weaknesses. Some however, could do a much better job of adhering both to the letter as well as the spirit of the laws for, “direct participation.” Probably, without a newspaper in the community, and with citizens who are most interested in a board’s actions being those also under its authority, this area has not had the attention it deserves. Here are some specific conclusions.
1. Delays in publishing minutes is a big problem. There is a serious delay in posting minutes. This seems to be tradition, waiting until the next physical meeting to approve minutes. But in the digital age, this can be easily remedied. And, video recording of meetings would make this problem disappear.
2. In some cases agendas and minutes need to be better. In those cases where the agendas are open-ended and vague, this should be corrected. Minutes should always include exactly what the topic is about and why, and boards should stick to a narrow, specific agenda, knowing that decisions are made all the time, not just those voted on in a formal manner.
3. Inconsistencies in availability of documents. Past documents are sometimes lacking, or not easy to find. Perhaps I couldn’t locate them, but if so, it needs to be easier for everyone. Also, boards that don’t have a system for the public to request public records, or examine them, should develop this capability.
A meeting of the Marriage and Family Therapist Advisory Committee.
Screen clippings of the Boards & Commissions website for the psychology board. Citizens can download notices and minutes, but some are not always available.
This article is part of a historical newspaper archive. Read the original issue for its original layout, photographs and graphics.