Judge rules Tennessee School Boards Association is ‘functional equivalent’

A Davidson County judge ruled Monday that the Tennessee School Boards Association is subject to the state public records law because it is a functional equivalent of a government agency.

Chancellor Patricia Head Moskal ruled that the Tennessee School Boards Association is subject to the public records law as a functional equivalent of a government agency.

“As a functional equivalent of a governmental agency, the public records in the possession of TSBA, including its training materials, communications regarding its legislative agendas, and its position statements on stated education law and funding, are public records subject to he provisions of the TPRA,” Chancellor Patricia Head Moskal wrote in her ruling.

(See Moskal’s order in Marren v. Tennessee School Boards Association)

The case started when Katie Marren, a mother of a student in Williamson County, asked for records from the school boards association that would help show the role the association plays in education policy.

The association denied her request, saying it was a private entity not subject to the public records law. She filed a lawsuit, with Beacon Center of Tennessee representing her.

TSBA is first government association ruled to be functional equivalent

The Supreme Court established the functional equivalent doctrine in 2002 in a case involving a Memphis nonprofit whose sole purpose was to administer a daycare-matching program for the state. The Court wrote that “when a private entity’s relationship with the government is so extensive that the entity serves as the functional equivalent of a governmental agency, the accountability created by public oversight should be preserved.”

Since then, news organizations and ordinary citizens or citizen groups have petitioned the courts about various entities as they have sought records. Six have been found to meet the criteria, including a private company that operates state prisons and local jails, two economic development organizations, and the Tennessee Secondary School Athletic Association.

The school boards association becomes the seventh. It’s the first case considered by the courts involving a government association.

Judge looked at funding and government involvement

Moskal based her ruling on the amount of government funding, involvement and regulation by the government, and TSBA’s role in providing training and professional development for school board members.

Moskal noted in her ruling that 90.25 percent of association funding comes from public support, including membership dues from local school boards and contract and program service revenues from local and state government for various educational programming and training.

TSBA is also recognized in statutes and regulations. For example, the organization is recognized as the “representative agency of the members of school boards” and state law allows membership dues and travel expenses for meetings to be paid by local boards of education.

The State Board of Education and state Department of Education also have designated the association to develop and conduct the annual mandatory training of school board members, which is required by statute.

Further showing the close relationship with government, Moskal pointed out that current and former association employees accrue and/or receive retirement benefits through the Tennessee Consolidated Retirement System, and TSBA is designated as a participating employer in the retirement system by statute.

“The Court finds there is a close interrelationship between TSBA, the State Department of Education and the State Board of Education, from TSBA’s funding to its governance to its participation in state retirement and insurance benefit programs. The Court concludes these facts, when taken together, evidence substantial government involvement with TSBA.”

TSBA argued it fell under statutory exemption

Moskal dismissed TSBA’s main argument against the functional equivalent designation that it acted more as a contractor. TSBA also made two other arguments to deny Marren’s records requests: that its communications with lawmakers are privileged and that the school board comes within a statutory exemption for nonprofit entities.

TSBA claimed its communications with lawmakers about its legislative agenda are privileged because revealing these communications would “restrict the powers of the legislature to conduct its business.” Moskal rejected the argument, saying that “[a]ny legislative privilege to be asserted is for the legislature to invoke, not TSBA.”

She also addressed the statutory exception. The public records act provides that the records of certain nonprofits that were established for the benefit of local government officials or counties, cities, towns or other local governments are open for public inspection unless the entity files an annual audit that is open to the public.

“[T]he Court finds this statutory exception argument is superseded by the Court’s conclusion that TSBA is the functional equivalent of a governmental agency. Petitioner’s request to TSBA was directed to it as the functional equivalent of a governmental agency, and it is subject to the provisions of the TPRA in that capacity. The request was not made to TSBA in its capacity solely as a nonprofit corporation. ‘[A] governmental agency cannot, intentionally or unintentionally, avoid its disclosure obligations under the [TPRA] by contractually delegating its responsibility to a private entity’,” Moskal wrote, referring to the 2002 Memphis Publishing Company v. Cherokee Children & Family Services case.

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