practical & legal frameworks for effective board meetings · 1. attend meetings! any member of...

Practical & Legal Frameworks for Effective Board Meetings

December 2018

Jeremy LasiterBryant Public Schools

Cody Kees Bequette, Billingsley & Kees, PA

Overview

•Powers and Duties of Board Members

•School Board Meetings

•School Prayer

•Ethical Requirements

•Student and Employee Hearings

•Arkansas Freedom of Information Act

•Pitfalls to Avoid & Cautionary Tales

Who Can Serve?

• All School Boards must be comprised of 5, 7, or 9 members

• Term of office: no more than 5 years, no less than 3

• Director Eligibility - A.C.A. §6-13-616

• Must be a qualified elector of the district

• Qualified: Cannot have been convicted of a felony without the sentence discharged or pardoned

• Cannot be eligible for employment in the district

• What if…

• The candidate does NOT live in district during the election?

Who Can Serve?

• Qualified Elector

• “Eligibility” means being qualified at the time of

commencement of the term and induction into office.”

Jessup v. Hancock, 238 Ark. 866 (1964)

• What if…• Your property runs across two districts?

• You are only eligible to run in the district where your house is physically

located. Davis v. Holt, 304 Ark. 619 (1991).

Who Can Serve?

• Take Your Oath

• You are to take the oath of office within 10 days after

notice of appointment - A.C.A. 6-13-617(a)(1)• So, 10 days after your term begins

• Consequences

• Your qualification to serve could be challenged.

• All your votes during time you were not qualified could be void.

Election of Officers

• At the first regular meeting following annual election

• Elect 1 member president and 1 vice president

• Elect a secretary who may be, but need not be, a member of

the board

• By resolution designate 1 member as the “disbursing” officer

• No check (other than food service or activity funds checks) shall

be valid in the absence of signature of:

• Disbursing Officer

• Superintendent

Powers and Duties

•Ark. Code Ann.§6-13-620, Powers and

Duties of School Boards

•Ten broad, primary duties

•One “catch-all” duty – “do all other

things necessary and lawful for the

conduct of efficient free public schools

in the school district.”

Powers and Duties



1. Attend Meetings!Any member of the board of directors who misses three (3) regular and

consecutive board of directors meetings during a school year for any

reason other than military service of the member or illness of the member

verified by a written sworn statement of the member's attending physician

may be removed from office by a majority vote of the remaining board

members, but only after an opportunity for a hearing before the board of

directors upon fifteen (15) days notice received by personal delivery or by

certified mail with the return receipt signed by the addressee only

requested.

Powers and Duties

•Ark. Code Ann. § 6-13-620, Powers and


2. Determine mission/direction of

district;

3. Obey state and federal laws;

4. Enact, enforce, and obey school

district policies;

Powers and Duties



5. Employ staff (including superintendent);

•Evaluate the superintendent!

Powers and Duties

• Superintendent Evaluation

• Should be done annually. Will be difficult to terminate a

superintendent with cause if you have not performed evaluations

• Areas to address:

• Relationship with board

• Management skills and abilities

• Relationship with community

• Fiscal management

• Person and professional attitude

• Public relations

• Relationship with staff

• ASBA has a new supt evaluation system- see Dr. Anne

Butcher

Powers and Duties



6. Understand and oversee finances;

7. Ensure that the school district has

necessary and sufficient facilities;

Powers and Duties



8. Approve the selection of curriculum

consistent with State Board of Education

requirements;

9. Visit school districts and classrooms;

Can board members enter school at any

time?

Powers and Duties



10. Obtain training and professional

development.

• New member: 9 hours by Dec 31 of the

calendar year following election

• Then: 6 hours by Dec 31 each year after

Powers and Duties

•You do not get your hours!!• 30 days from the date of the January board meeting to complete

training AND member is suspended from participating in all school

business until hours are completed

• Failure to cure results in removal unless:

• Was due to military service

• Sworn statement from treating physician that failure was due to

serious medical condition

• Board member then has until Dec 31 to cure missed hours and the 6

hours for present year

• You cannot simply remove the member, but follow guidelines in

ACA 6-13-611, discussed later

Meetings

•Ark. Code Ann. § 6-13-619, School

Board Meetings

•Monthly during school term;

•On call of the president;

•On call of the secretary;

•On call of any three board members;

•When required to meet by lawful,

verified written petition.

Meetings


Board Meetings

•Requests to be placed on the agenda

•Superintendent notification to president

•Cannot be granted if it would prejudice

a student or personnel matter, or is in

conflict with school district policy or

law.

Meetings


Board Meetings

• Regular and special meetings must take

place after 5:00 p.m. if they involve

personnel or personnel policies;

• Publish date, time and place of regular

meetings on website 10 days in advance;

• Publish date, time and place of rescheduled

meetings on website 24 hours in

advance.

Meetings


Board Meetings

• Secretary must:

• Keep minutes;

• Take attendance;

• Record outcome of vote;

• Keep copy of all budgets and county

treasurer reports on the financial affairs of

the district.

Meetings

•Ark. Code Ann.§6-13-619, School Board

Meetings• General rule is that board members have to be

physically present to vote, or count toward a

quorum. (there are exceptions).

• Majority of a quorum voting affirmatively is required

for the passage of any motion or resolution.

• Any member who abstains shall be counted as

having voted against the motion or resolution.

Meetings

•Ark. Code Ann.§6-13-619, School Board

Meetings• A member with a conflict may leave the meeting.

They cannot be counted in the board’s vote and

they cannot be used to establish a quorum.

• A quorum = a majority of the membership of the

board of directors.

• A quorum must be physically present for the board

to enter an executive session.

Meetings

•Ark. Code Ann. 6-13-619, School Board

Meetings• Can adopt a policy for remote attendance.

• Have to be able to verify the member.

• Have to make sure everyone can hear each other.

• Member attending remotely cannot attend an

executive session or closed hearing.

• Cannot vote on a matter that was the subject of an

executive session or closed hearing.

• Counted 3 times a year to establish a quorum.

Meetings

•To Pray or Not To Pray?• Constitutionally permissible?

• Unclear

• Argument For: Courts have consistently held prayer at legislative and

town council meeting are permissible.

• Crowd is usually adults

• Role of these bodies is not to develop policy for students

• Rich history of prayer in these types of meetings

• California federal court upheld school board prayer

• Court held it is a meeting of adults

• No susceptibility of a child to religious indoctrination

• No other federal court or federal appeal court has upheld

school board meeting prayer

Meetings

1. To Pray or Not To Pray?Constitutionally permissible?

• Argument Against: Its not a legislative meeting, but a meeting

regarding school business

• The Board regularly invites students to attend

• The Board addresses student matters

• Not a history of prayer in these settings (founding fathers)

• View upheld by 6th Circuit and 3rd Circuit Courts

• Coles ex rel. Coles v. Cleveland Bd. of Educ., 171 F.3d 369 (6th Cir.

1999)

• Doe v. Indian River Sch. Dist., 653 F.3d 256 (3d Cir. 2011).

Meetings

•To Pray or Not To Pray?• Board President in Nebraska gave the welcome speech at

graduation, he recites an impromptu prayer. A patron sues. How

did the 8th Circuit (includes Arkansas) rule?

• Upheld. Not an establishment clause violation of the

Constitution.

• District had no prior knowledge

• Board president was selected to speak because of his

position, not his speech

• Board member was acting as a private citizen

Ethics

• Ark. Code Ann.§6-24-101 et seq., Ethical

Requirements

• Cannot use, or attempt to use your official

position to secure unwarranted privileges or

exemptions for yourself or others.

• Cannot disclose confidential information.

• No kickbacks or gratuities.

Ethics

•Requirements for school board

members (Ark. Code Ann. § 6-24-105)

•Requirements for administrators (Ark.

Code Ann. § 6-24-106)

•Requirements for school district

employees (Ark. Code Ann. § 6-24-107)

•Penalties: restitution, fine of up to

$10,000, prison for up to 5 years.

Ethics

•Requirements for school board

members (Ark. Code Ann.§6-24-105)

• General Prohibitions

• Employment of Family Members

• Exceptions

• Records

• Providing False or Incomplete Information

Removal of a Member

• Ark. Code Ann. § 6-13-611

• Member MAY be removed ONLY after:

• Moves out of the district

• Missing 3 regular and consecutive meetings

• Fails to physical attend 6 regularly scheduled board meetings in a

calendar year

• Unless…

• Related to military

• Has a physician’s note as to serious medical condition

• Not fulfilling all trainings

• Only after a hearing before the board and majority vote to

remove

Removal of a Member

• Ark. Code Ann.§6-13-611

• Member Removal Hearing

• Board shall vote on whether to appoint an independent investigator

to investigate credible evidence presented

• Hold a hearing

• Member gets 15 days notice of the hearing

• Member may speak at hearing, to be held at next regular board meeting

• Member may request an alternative date or have a representative present

• Board will be presented with written or oral evidence and make a finding a

fact as to whether a vacancy exists

• Written transcript of the hearing must be taken

• Board member at issue must be given notice of decision (public vote)

within 10 days

Removal of a Member

• Automatic Removal, no board vote or hearing

necessary:

• Loss of voter eligibility

• Felony Conviction

• Called into active military duty

• Resigns

• Dies

Member Vacancy

• “The vacancy shall be filled by a majority vote of the

remaining directors.”

• 30 days to fill the post

• May advertise and take applications

• You can consider applications in executive session

• Vote in open session

• “All appointed directors shall only serve to the next

annual school election..”

• You do not get the full unexpired term of your predecessor!

Board Member Access to

School Records

• A board member calls the superintendent and

wants a record of a teacher’s attendance for the

entire school year. The board member is

suspicious of the teacher and wants to also see

the teacher’s entire personnel file.

• How is this best handled?

33


School Records

• A board member has access to any record that is

otherwise available to the public through the

Arkansas Freedom of Information Act.

• A board member would need access to private

records when it concerns a board action.

• i.e. Student records during an expulsion hearing or

personnel records during a termination hearing.

34


School Records

• What about private records not related to board

action?

• Generally, a board member acting alone has no

power outside the majority. If the document is

neither public nor necessary for the board to

take action, then the board member has no right

to the document.

35


School Records

• New York: A lone board member wanted

confidential student records and the

superintendent denied the request, but allowed

the entire board to decide if the record needed to

be provided. The majority of the board denied

this request by the lone board member.

• The court affirmed the superintendent’s decision

to defer to the board.• King v. Ambellan, 173 N.Y.S.2d 98

36


School Records

• Additional considerations:

• FERPA

• Personnel records are generally protected by

statute

• Mental health laws

• Any record provided to one board member needs

to be provided to every board member

• Board member’s request for documents

necessary to their role needs to run through

the superintendent

37

Student Expulsion Hearings

• Ark. Code Ann. § 6-18-507

• Any out of school placement that exceeds 10

days is an expulsion, which must be approved

by the board at a board meeting

• Student/Parent must be given notice of the

expulsion recommendation, including

reasons, date and time of board meeting,

polices alleged to have been violated, right to

attend and have counsel present


• Ark. Code Ann. § 6-18-507

• If neither student nor parent appear, go into

executive session to discuss the

recommendation with the superintendent

• Vote to expel must be in open session. Refer

to the student by initials or ID Number

• The documents reviewed are not made public


• Ark. Code Ann. § 6-18-507

• Student expulsion hearing

• Student/ Parent can have an open or closed

hearing

• Supt presents a recommendation and the

reasons, can have witnesses

• Student can present witnesses and evidence

• Board can go into executive session to

deliberate


• Ark. Code Ann. § 6-18-507

• Student must receive notice of action

Remember:

• Incident involving a gun: Supt SHALL recommend

expulsion no less than one year

• Cannot expel a K-5th grade student unless behavior

posed harm to himself or others or a serious

disruption that cannot be addressed through other

means

Student Conduct Off Campus

• Citizens in a neighborhood adjoining the high school are

complaining because students are parking on their street, as

the school lot is constantly full. Students are littering,

smoking, and even using marijuana in the area before and after

school, but neither on campus nor during school hours.

• The neighbors report the conduct, what do you do?

42


• Generally, “school officials can suspend or expel a student for conduct

outside of school hours when it is reasonably necessary for the punished

student's physical or emotional safety or for the safety and well-being of

other students, teachers, or public school property.”

• Smith v. Little Rock School Dist., 582 F. Supp. 159 (E.D. Ark. Mar. 8, 1984)

43


• ASBA Model Policy 4.17- Student Discipline

• The District’s administrators may also take disciplinary action against a student for off-campus conduct occurring at any time that would have a detrimental impact on school discipline, the educational environment, or the welfare of the students and/or staff. A student who has committed a criminal act while off campus and whose presence on campus could cause a substantial disruption to school or endanger the welfare of other students or staff is subject to disciplinary action up to and including expulsion.

44

Staff Employment Hearings

• Governed by the Arkansas Teacher Fair

Dismissal Act and Public School Employee

Fair Hearing Act

• Both Acts are very intensive

• Involve any act to terminate or non-renew a

contract or to conduct a Reduction in Force

• Superintendent-driven process

• You sit as the jury and hear evidence

and make the final decision.

Staff Employment Hearings

• Superintendent-driven process

• Superintendent makes a recommendation

• You have no involvement if and until an

employee requests a hearing

• You sit as the jury and hear evidence and

make the final decision

Board & Personnel Policies

Committee

• Can propose and then later

adopt a personnel policy

• Has the power to adopt a

policy

• Once the board takes final

action, the policy will go

into effect no later than July

1 of the next fiscal year.

• Can suggest a policy

• Has the right of review and

comment over board

proposed policies at

appropriate board meeting

• Can attempt to persuade

board concerning a policy

at a board meeting

• Cannot veto a proposed

policy or refuse to allow

a policy to be adopted

Board PPC

Board & Personnel Policies

Committee

• The ultimate power over policy rests with the school board

(management).

• The school board has the power to adopt or not adopt.

• The role of the PPC (labor) is to give a voice to employees, and

to allow them to be involved in the adoption process.

• The PPC has limited rights: the 10 day review right, the right to

address the board, and the right to suggest a new policy.

• The PPC can’t make the board do anything except listen and has

no law-based veto power and no law-based power to negotiate.

School Choice Resolution

•Ark. Code Ann. § 6-18-1901, et seq.

• Each school board must adopt, by

resolution, specific standards for

acceptance and rejection of school choice

applications.

• Capacity of a program, class, grade level, or

school building

• Priority for siblings or stepsiblings

• Cannot be discriminatory with standards

School Choice Resolution

•Ark. Code Ann. § 6-18-1901, et seq.

• Desegregation orders/court-ordered

desegregation plans

• Must immediately submit proof to the

Arkansas Department of Education

Other Stuff

• Annual Budget;

• Selection of Polling Places for Annual

Election;

• Public Comment/Statements by Guests;

• Adding Items at the Board Meeting.

Open Meeting Law

• Ark. Code Ann. § 25-19-106

• Except as otherwise specifically provided by law, all

meetings, formal and informal, special or regular, of

the governing bodies of all municipalities, counties,

townships, and school districts and all boards,

bureaus, commissions, or organizations of the State

of Arkansas, supported wholly or in part by public

funds or expending public funds, shall be public

meetings.

Open Meeting Law

• Media Notice

• In county where meeting will be held, newspapers,

radio stations and TV stations

• If media outside of the county attend your meetings,

they must be notified, too.

• Individuals cannot force you to notify them

• Notification should create proof of notification such

as fax confirmation

Open Meeting Law

• Is this a legal meeting?

• What does “meeting” mean?

• Two or more board members discussing board

business is a “meeting” even if there is no quorum

• Member-to-member communication can equal a

“meeting”

• A quorum is necessary to transact board business

Pitfalls to Avoid and

Cautionary Tales

practical & legal frameworks for effective board meetings · 1. attend meetings! any member of...

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